designs, to show or describe the type itself. In re Schraubstadter, (1905) 26 App. Cas. (D. C.) 331. Separate claims in same application.— The same application may include separate claims for the distinct parts of the same design and a claim for the entire design. Britton r. White Mfg. Co., (C. C. Conn. 1894) 61 Fed. 93. Separate designs in single claim.- Several separate and distinct designs may not be claimed in one claim. Dukes r. Bauerle, (N. D. III. 1890) 41 Fed. 778. Claiming the "configuration of the design" is the same thing as claiming the design or the figure of the pattern. Dobson r. Dornan. (1886) 118 U. S. 10, 6 S. Ct. 946, 30 U. S. (L. ed.) 63. Sec. 4931. [Duration of patents for designs.] Patents for designs may be granted for the term of three years and six months, or for seven years, or for fourteen years, as the applicant may, in his application, elect. [R. S.] Act of July 8, 1870, ch. 230, 16 Stat. L. 210. Sec. 4932. [Extension of patents for designs.] Patentees of designs issued prior to the second day of March, eighteen hundred and sixty-one, shall be entitled to extension of their respective patents for the term of seven years, in the same manner and under the same restrictions as are provided for the extension of patents for inventions or discoveries, issued prior to the second day of March, eighteen hundred and sixty-one. [R. S.] Act of July 8, 1870, ch. 230, 16 Stat. L. 210. Sec. 4933. [Patents for designs subject to general rules of patent law.] All the regulations and provisions which apply to obtaining or protecting patents for inventions or discoveries not inconsistent with the provisions of this Title, shall apply to patents for designs. [R. S.] Act of July 8, 1870, ch. 230, 16 Stat. L. 210. Application of other sections.- Regulations and provisions applicable to the obtaining and prohibition of patents for inventions or discoveries not inconsistent with the existing patent act, apply to patents for designs without modification or variation. Miller . Smith, (C. C. R. I. 1880) 5 Fed. 359. An act to amend the law relating to patents, trade-marks, and copyright. [Act of Feb. 4, 1887, ch. 105, 24 Stat. L. 387.] [SEC. 1.] [Unauthorized use of patented design - penalty and liability -suits.] That hereafter, during the term of letters patent for a design, it shall be unlawful for any person other than the owner of said letters patent, without the license of such owner, to apply the design secured by such letters patent, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or to sell or expose for sale any article of manufacture to which such design or colorable imitation shall, without the license of the owner, have been applied, knowing that the same has been so applied. Any person violating the provisions, or either of them, of this section, shall be liable in the amount of two hundred and fifty dollars; and in case the total profit made by him from the manufacture or sale, as aforesaid, of the article or articles to which the design, or colorable imitation thereof, has been applied, exceeds the sum of two hundred and fifty dollars, he shall be further liable for the excess of such profit over and above the sum of two hundred and fifty dollars. And the full amount of such liability may be recovered by the owner of the letters patent, to his own. use, in any circuit court of the United States having jurisdiction of the parties, either by action at law or upon a bill in equity for an injunction to restrain such infringement. [24 Stat. L. 387.] By the Judicial Code, secs. 289-291, the circuit courts were abolished and their powers and duties conferred on the district courts. Constitutionality. This Act is not unconstitutional. Untermeyer . Freund, (C. C. A. 2d Cir. 1893) 58 Fed. 205, 20 U. S. App. 32, 7 C. C. A. 183, affirming (S. D. N. Y. 1892) 50 Fed. 77. Necessity of knowledge. This statute, according to its clear intent and effect, requires that, in order to charge either a manufacturer or a seller of articles to which has been applied a patented design or any colorable imitation thereof, he must have been "knowing that the same has been so applied," which is equivalent to saying, "with a knowledge of the patent, and of his infringement." Dunlap r. Schofield, (1894) 152 U. S. 244, 14 S. Ct. 576, 38 U. S. (L. ed.) 426, affirming (E. D. Pa. 1890) 42 Fed. 323; Fuller v. Field, (C. C. A. 7th Cir. 1897) 82 Fed. 813, 53 U. S. App. 556, 27 C. C. A. 165. It was not the intention of Congress to impose such a penalty for an inadvertent and ignorant invasion of another's right. Fuller v. Field, (C. C. A. 7th Cir. 1897) S2 Fed. 813, 53 U. S. App. 556, 27 C. C. A. 165. 66 Allegation of marking "patented."— To recover the penalties, damages, and for an accounting of profits under this Act, it is necessary to allege that the articles infringed were marked Patented" in accordance with R. S. sec. 4900, supra, p. 283. Dunlap v. Schofield, (1894) 152 U. S. 244, 14 S. Ct. 576, 38 U. S. (L. ed.) 426; Coupe v. Royer, (1895) 155 U. S. 565, 15 S. Ct. 199, 39 U. S. (L. ed.) 263; Lowell Mfg. Co. v. Hogg, (C. C. Mass. 1895) 70 Fed. 787. Nature of liability. The liability imposed by this Act is a statutory penalty in the nature of damages and not a profit liquidated. Monroe.. Anderson, (C. C. A. 3d Cir. 1893) 58 Fed. 398, 17 U. S. App. 184, 7 C. C. A. 272. Liability of vendor. A vendor acting in good faith and selling in entire ignorance of any infringement perpetrated by the manufacturer, is not subject to the penalty imposed by this Act. Gimbel v. Hogg, (C. C. A. 3d Cir. 1899) 97 Fed. 791, 38 C. C. A. 419, reversing Hogg v. Gimbel, (E. D. Pa. 1899) 94 Fed. 518. See JUDICIARY, vol. 5, pp. 1082, 1083. For the infliction of the penalty the statute contemplate and requires knowledge by the seller of the unauthorized use of the design by the manufacturer. Such knowledge is not to be imputed to the seller from the notice to the public" by the marking required of the patentee by R. S. section 4900, supra, p. 283. Gimbel v. Hogg, (C. C. A. 3d Cir. 1899) 97 Fed. 791, 38 C. C. A. 419. More than one penalty. For an infringement of a design patented under three claims where the transaction consists of one order and sale, but one penalty can be inflicted. Gimbel v. Hogg, (C. C. A. 3d Cir. 1899) 97 Fed. 791, 38 C. C. A. 419, reversing Hogg v. Gimbel, (E. D. Pa. 1899) 94 Fed. 518. Where a manufacturer after having received notice of a patent completes the manufacture of a lot of infringing articles and makes a delivery to one purchaser and then gives orders to stop further production, he is liable to one penalty. Lowell Mfg. Co. v. Whittall, (C. C. Mass. 1895) 71 Fed. 515. Computation of profits. The rule declared by Congress for the computation of profits is the total profit from the manufacture or sale of the article to which the design was applied, as distinguished from the pre-existing rule of the profits which could be proved to be attributable to the design. Untermeyer t. Freund, (C. C. A. 2d Cir. 1893) 58 Fed. 205, 20 U. S. App. 32, 7 C. C. A. 183, affirming (S. D. Ñ. Y. 1892) 50 Fed. 77. Measure of profits recoverable.—An award of profits due to the design is all the patent owner is entitled to, when the design is separable from the article to which it is attached. Bush, etc., Piano Co. v. Becker, (C. C. A. 2d Cir. 1915) 222 Fed. 902, 138 C. C. A. 382, wherein the court held that on an award of profits for the infringement of a design patent for a piano case, the complainant's recov ery should be confined to the subject of the patent, the piano case, and could not be extended to the piano contained in the patented case. Where the plaintiff has shown no measure of profits due to the design alone, he may recover the two hundred and fifty dollars provided by the statute. The statute seems to give this amount as a measure of profits in cases where a less amount only can be proved and not as a penalty above the actual profits. Pirkl v. Smith, (E. D. N. Y. 1890) 42 Fed. 410. SEC. 2. [Remedy by existing law.] That nothing in this act contained shall prevent, lessen, impeach, or avoid any remedy at law or in equity which any owner of letters patent for a design, aggrieved by the infringement of the same, might have had if this act had not been passed; but such owner shall not twice recover the profit made from the infringement. [24 Stat. L. 388.] VII. FEES Sec. 4934. [Fees in obtaining patents, etc.] The following shall be the rates for patent-fees: On filing each original application for a patent, except in design cases, fifteen dollars. On issuing each original patent, except in design cases, twenty dollars. In design cases: For three years and six months, ten dollars; for seven years, fifteen dollars; for fourteen years, thirty dollars. On every application for the re-issue of a patent, thirty dollars. On every application for the extension of a patent, fifty dollars. On an appeal for the first time from the primary examiners to the examiners-in-chief, ten dollars. On every appeal from the examiners-in-chief to the Commissioner, twenty dollars. For certified copies of patents and other papers, including certified printed copies, ten cents per hundred words. For recording every assignment, agreement, power of attorney, or other paper, of three hundred words or under, one dollar; of over three hundred and under one thousand words, two dollars; and for each additional thousand words or fraction thereof, one dollar. For copies of drawings, the reasonable cost of making them. [R. S.] Act of July 8, 1870, ch. 230, 16 Stat. L. 209, 210; Act of March 24, 1871, ch. 5, 17 Stat. L. 3. As originally enacted the paragraph next preceding the last one of this section was as follows: "For recording every assignment, agreement, power of attorney, or other paper, of three hundred words or under, one dollar; of over three hundred and under one thousand words, two dollars; of over one thousand words three dollars." By the Sundry Civil Appropriation Act of May 27, 1908, ch. 200, § 1, 35 Stat. L. 343, it was provided that "In lieu of the fees fixed by section forty-nine hundred and thirty-four of the Revised Statutes for recording assignments, agreements, powers of attorney, or other papers in the Patent Office the following shall hereafter be the rates:" And the paragraph immediately following this provision has been incorporated in the section as given in the text in the last paragraph but one thereof. a This section was amended by an Act of June 25, 1910, ch. 414, § 2, 36 Stat. L. 843, by striking out, after the paragraph beginning with the words "In design cases paragraph reading "On filing each caveat, ten dollars" which had appeared in the section as originally enacted. Sec. 1 of said Amendatory Act repealed R. S. sec. 4902, and sec. 3 thereof was as follows: "SEC. 3. That this Act shall take effect July first, nineteen hundred and ten, and shall not apply to any caveat filed prior to said date." Effect of nonpayment.-A patent is not rendered void by the failure to pay the fees required. Crompton t. Belknap Mills, (1869) 3 Fish. Pat. Cas. 536, 30 Fed. Cas. No. 18,285. Collateral attack for failure to pay fees. A patent is not open to collateral attack by reason of failure to pay the required fees within the time prescribed. Lamprey Boiler Furnace Mouth Protector Co. . Economy Feed Water Heater Co., (C. C. N. H. 1894) 62 Fed. 590. Final fee when paid. Under the provisions of R. S. sec. 4897, supra, p. 188, the final fee may be paid within six months after the allowance of the application. This means six calendar months. Economy Feed Water-Heater Co. r. Lamprey Boiler Furnace-Mouth Protector Co., (C. C. A. 1st Cir. 1895) 65 Fed. 1000, 21 U. S. App. 714, 13 C. C. A. 271. Constructive notice by recording.--Although this section prescribes fees for recording every assignment, agreement, power of attorney, or other paper." it does not follow that the record of every paper which may happen to be recorded is to be taken as constructive notice of its contents to every person subsequently dealing with a party to it in respect to its subject matter. The record of an instrument is not constructive notice to a subsequent purchaser unless the statute requires the instrument to be recorded. Wright r. Randel, (N. D. N. Y. 1881) S Fed. 591. Sec. 4935. [Mode of payment.] Patent-fees may be paid to the Commissioner of Patents, or to the Treasurer or any of the assistant treasurers of the United States, or to any of the designated depositaries, national banks, or receivers of public money, designated by the Secretary of the Treasury for that purpose; and such officer shall give the depositor a receipt or certificate of deposit therefor. All money received at the PatentOffice, for any purpose, or from any source whatever, shall be paid into the Treasury as received, without any deduction whatever. [R. S.] Act of July 8, 1870, ch. 230, 16 Stat. L. 209. Sec. 4936. [Refunding.] The Treasurer of the United States is authorized to pay back any sum or sums of money to any person who has through mistake paid the same into the Treasury, or to any receiver or depositary, to the credit of the Treasury, as for fees accruing at the Patent-Office, upon a certificate thereof being made to the Treasurer by the Commissioner of Patents. [R. S.] Act of July 8, 1870, ch. 230, 16 Stat. L. 209. PAY AND ALLOWANCES See NAVY; WAR DEPARTMENT AND MILITARY ESTABLISHMENT PAYNE-ALDRICH TARIFF ACT See CUSTOMS DUTIES PELAGIC SEALING ACT See ALASKA PENAL CODE See PENAL LAWS CHAPTER PENAL LAWS I. OFFENSES AGAINST THE EXISTENCE OF THE GOVERNMENT, 396. II. OFFENSES AGAINST NEUTRALITY, 425. III. OFFENSES AGAINST THE ELECTIVE FRANCHISE AND CIVIL IV. OFFENSES AGAINST THE OPERATIONS OF THE GOVERNMENT, V. OFFENSES RELATING TO OFFICIAL DUTIES, 641. VI. OFFENSES AGAINST PUBLIC JUSTICE, 670. VII. OFFENSES AGAINST THE CURRENCY, COINAGE, ETC., 704. VIII. OFFENSES AGAINST THE POSTAL SERVICE, 737. IX. OFFENSES AGAINST FOREIGN AND INTERSTATE COmmerce, 857. X. THE SLAVE TRADE AND PEONAGE, 873. XI. OFFENSES WITHIN THE ADMIRALTY AND MARITIME AND THE XIII. CERTAIN OFFENSES IN THE TERRITORIES, 964. XIV. GENERAL AND SPECIAL PROVISIONS, 972. XV. REPEALING PROVISIONS, 989. CHAPTER ONE OFFENSES AGAINST THE EXISTENCE OF THE GOVERNMENT Sec. 1. Treason, 396. 2. Punishment of Treason, 420. 3. Misprision of Treason, 420. 4. Inciting or Engaging in Rebellion or Insurrection, 421. 5. Criminal Correspondence with Foreign Governments, 422. 6. Seditious Conspiracy, 423. 7. Recruiting Soldiers or Sailors to Serve against the United States, 424. 8. Enlistment to Serve against the United States, 424. CHAPTER TWO OFFENSES AGAINST NEUTRALITY Sec. 9. Accepting a Foreign Commission, 425. 10. Enlisting in Foreign Service, 430. 11. Arming Vessels against People at Peace with the United States, 434. 12. Augmenting Force of Foreign Vessel of War, 457. 13. Military Expeditions against People at Peace with the United States, 460. 14. Enforcement of Foregoing Provisions, 476. 15. Compelling Foreign Vessels to Depart, 481. 16. Armed Vessels to Give Bond on Clearance, 482. 17. Detention by Collectors of Customs, 482. 18. Construction of This Chapter, 483. [387] |