question of priority.' If an invention is fully described in a caveat, then that caveat will constitute evidence showing that invention to have been made at least as early as the caveat was filed. This, however, is an incidental and not a statutory function of such a document, and it cannot be performed by any caveat which is not complete enough in its description to enable a skilful mechanic, without inventing anything himself, to construct a specimen of the invention to which the caveat refers. But even where a caveat does not reach that standard, it constitutes evidence that the invention had reached the stage of development shown in the caveat, at the time the caveat was executed.' Omission to file a caveat does not impair the ultimate rights of an inventor;' and omission to consider a caveat does not invalidate a patent granted to another in pursuance of the oversight.* $144. No appeal lies, in any interference case, from the Commissioner of Patents to the Supreme Court of the District of Columbia. The decision of the Commissioner in any such case, however, may be reviewed by means of a bill in equity, filed in any United States Circuit Court having or receiving jurisdiction of the parties. Whether any appeal lies to the Supreme Court of the United States from any decree of any Circuit Court, rendered in any such case, or in any other case brought by authority of the same statute, is an unsettled question. Appeals are demandable from the Circuit Courts to the Supreme Court in all equity cases "touching patent-rights." Such is the provision of the Revised Statutes, and such was the provision of the Patent Act of 1870. Prior to the approval of the last-mentioned statute, such appeals were allowable in all "cases 1 Revised Statutes, Section 4902; Bell v. Daniels. 1 Fisher, 372, 1858. Jones v. Wetherell, 1 McArthur's Patent Cases, 413, 1855. 3 Heath v. Hildreth, 1 McArthur's Patent Cases, 25, 1841. Cochrane v. Waterman, 1 McArthur's Patent Cases, 59, 1844. 5 Revised Statutes, Section 4911. Revised Statutes, Section 4915, and Sec. 629, 9; Section 134 of this book. Revised Statutes, Section 699. 16 Statutes at Large, Ch. 230, Section 56, p. 207. arising under any law of the United States, granting or confirming to inventors the exclusive right to their inventions," and were demandable in a portion of such cases.' This lastquoted phraseology was probably wide enough to cover cases brought in the Circuit Courts to review adverse decisions of the Commissioner of Patents, or of the Supreme Court of the District of Columbia, on applications for letters patent; but it does not follow that the present statute is wide enough for that purpose. Cases brought under Section 4915 of the Revised Statutes are not cases "touching patent-rights." They are cases touching rejected applications for patent-rights. If, therefore, they are held to be appealable to the Supreme Court, they must be so held by virtue of a loose construction of the statute regulating appeals. § 145. An application for a patent may be abandoned. That abandonment may be actual, or it may be constructive. The facts which constitute an actual abandonment of an application, may also constitute an actual abandonment of the invention covered thereby; and a constructive abandonment of an application, may or may not work a constructive abandonment of the invention. Actual abandonment of an application does not always follow from the fact that the applicant withdrew it from the Patent Office. If, when withdrawing it, he intended to file a new application for the same invention, and accordingly does so, the two are held to constitute one continuous application within the meaning of the law. This doctrine applies, even if the new application is not filed till long after the old one was withdrawn, provided there was no laches chargeable to the applicant on account of the delay." Nor does actual abandonment of an application necessarily follow from the fact that it was rejected by the Patent Office, and then allowed to lie dormant by the applicant. 15 Statutes at Large, Ch. 357, Section 17, p. 124. 2 Godfrey v. Eames, 1 Wallace, 317, 1863; International Crown Co. v. Richmond, 30 Fed. Rep. 779, 1886. 3 Howes v. McNeal, 3 Bann. & Ard. 376, 1878. If, in such a case, the applicant always expected to secure a patent, either on the original application or on another, and if, without laches, he made and prosecuted another application for the same invention, and secured a patent thereon, the two applications are considered, in the eye of the law, to be one.' Laches, if it intervenes between a withdrawn or rejected application and a new application covering the same invention, will, however, be fatal to any claim of continuity.' It will constitute evidence that the first application was actually abandoned, and equally good evidence of the actual abandonment of the invention itself." § 146. Constructive abandonment of an application occurs whenever two years intervene between the filing of the application and its being made complete enough to entitle it to examination, according to the rules of the Patent Office; and such an abandonment also occurs if the applicant allows two years to pass without regularly prosecuting his application after any particular action is taken thereon by the Patent Office, and notified to him, provided, in either case, the Commissioner of Patents is not convinced that the delay was unavoidable. If he is so convinced, he may condone the delay by granting a patent; and if he grants a patent, his decision on the point is conclusive." All applications, also, which were rejected or withdrawn prior to July 8, 1870, and not revived within six months after that day, were thereby constructively abandoned." The statutory provision just cited, did not operate to renew any right to any abandoned invention." Nor did it fix any Smith v. Dental Vulcanite Co. 93 U. S. 500, 1876; Blandy v. Griffith, 3 Fisher, 617, 1869; Graham v. McCormick, 5 Bann. & Ard. 244, 1880; Ligowski Clay Pigeon Co. v. Clay Bird Co. 34 Fed. Rep. 334, 1887. Bevin v. Bell Co. 9 Blatch. 61, 1871; Weston v. White, 13 Blatch. 452, 1876. Planing Machine Co. v. Keith, 101 U. S. 484, 1879. 4 Revised Statutes, Section 4894, Kirk v. Commissioner of Patents, 37 Off. Gaz. 451, 1885. 5 M'Millin v. Barclay, 5 Fisher, 199, 1871. 616 Statutes at Large, Ch. 230, Section 35, p. 202. 'Planing Machine Co. v. Keith, 101 U. S. 483, 1879. time after which any invention should be held to be abandoned, for it provided no result from six months' delay, except that the application should be held to have been abandoned. So, also, constructive abandonment of his application occurs when any applicant fails to pay the final fee within six months from the time at which a patent is allowed, and notice of such allowance is sent to him or to his agent.' The six months referred to in this paragraph are lunar, and not calendar, months." § 147. Constructive abandonment of an application will work constructive abandonment of the invention covered thereby, where the abandonment of the application arose from either of the causes stated in the first paragraph of the last preceding section, if no new application is filed soon enough to independently avoid the statute relevant to public use or sale more than two years before application for a patent. The same thing is true, for the same reason, where the abandonment of the application arose from the cause stated in the second paragraph of the last preceding section. But the same reason does not exist relevant to the cause of constructive abandonment stated in the third paragraph of that section. If, therefore, an applicant fails to pay the final fee within six months after an allowance of a patent to him, and if he files a new application for a patent, on the same invention, within two years after that allowance, but more than two years after that invention was first in public use or on sale, the question arises whether the constructive abandonment of the first application will prevent the two applications from being regarded as one, on the principles stated in the second and third paragraphs of Section 145 in this chapter. No answer to that question is found in any adjudicated case; and as the point is unlikely to arise, and as its solution involves much argument, no answer is attempted in this book. But in every case where a new application is made withLindsay v. Stein, 10 Fed. Rep. 913, 1882. 1 Revised Statutes, Section 4885. Section 125 of this book. in two years after the invention was first in public use or on sale, a patent, if granted on that new application, will not be unfavorably affected by the fact that a former application was made, and was constructively abandoned. § 148. Patents are authorized by law, only on compliance with the statutory prerequisites to their issue. The Commissioner has therefore no jurisdiction to grant any patent, except where all those prerequisites have been substantially performed. If he inadvertently grants a patent in any other case, he exceeds his jurisdiction, and it is therefore open to every person who is sued as an infringer of that patent, to successfully defend against such an action, by pleading and proving the particular fault or omission with which the applicant was chargeable.' In all cases, however, where the application was complete enough to give the Commissioner jurisdiction, the patents will be unaffected by evidence that the Commissioner was improvident or injudicious in the exercise of his discretionary powers over these applications. If, for example, he omits to require that specimens of the ingredients shall be furnished, with a particular application for a patent for a composition of matter, it is not open to any infringer to show that the public interest would have been better subserved had such a requirement been made. The same rule also governs the same point in cases where the Commissioner omits to require a model.' But it is probably open to any defendant to defeat a recovery for infringement, by pleading and proving that no drawing of the invention was filed in the Patent Office, and that the nature of the case admitted of drawings. This must be the law, unless the Commissioner is the sole and final judge of this last point of fact; and it is not probable that Congress intended to make him so, for no such intention is expressed in the statute, and no such intention is consistent with public policy. 1 Grant. Raymond, 6 Peters, 218, 1832; Parks v. Booth, 102 U.S. 101, 1880; Ransom v. New York, 1 Fisher, 257, 1856. 2 Tarr v. Folsom, 1 Bann. & Ard. 24, 1874. Revised Statutes, Section 4891. |