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this point was as follows: "The patent, so reissued, together with the corrected description and specification, shall have the same effect and operation in law, on the trial of all actions hereafter commenced for causes subsequently accruing, as though the same had been originally filed in such corrected form."

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It follows from these provisions, that a reissued patent cannot be affected, in point of novelty, by anything done after the date of the original application. Novelty still dates from the original invention. Nor will any invention produced after that time, be taken into account as showing the state of the art, and therefore as being relevant to the question of construction of a reissued patent. On the other hand, when reissued patents are introduced in evidence to negative the novelty or limit the scope of other patents, they operate as of their own dates, and not as of the dates of the originals.*

It follows also from the foregoing statutory provisions, that persons who use or sell, after the date of a reissued patent, specimens of the thing covered by it, are liable as infringers; even though those persons made, or bought, or used those specimens before that date, and when, on account of the omission to cover them by the original patent, they had a legal right to appropriate the invention."

15 Statutes at Large, Ch. 357, Section 13, p. 122.

2 Grant v. Raymond, 6 Peters, 218, 1832.

3 Carroll v. Morse, 9 Off. Gaz. 453, 1876.

United States Stamping Co. v.

King, 17 Blatch. 64, 1879.

Stimpson v. Railroad Co. 4 Howard, 380, 1846; Agawam Co. v. Jordan, 7 Wallace, 609, 1868; Carr v. Rice, 1 Fisher, 211, 1856; Bliss . Brooklyn, 8 Blatch. 534, 1871.

CHAPTER X.

EXTENSIONS.

255. Constitutional foundation of
extensions.

256. Congressional extensions.
257. Mode of Congressional exten-
sion.

258. Effect of Congressional exten-
sions.

259. Patent Office extensions.
260. Statutory foundation of Patent
Office extensions.

261. Who might apply for Patent

Office extensions.

262. Points of time whereon Pat

ent Office extensions were grantable.

263. Patent Office extension might be granted to an inventor-patentee, even if he had parted with all interest in the first term of his patent.

264. Patent Office extensions grantable only where inventors would possess, or at least participate in, the benefit thereof.

265. Patent Office extension, how
effectuated.

266. Force of the Commissioner's
decision in extension cases.
267. Facts which justify extensions.
268. Proceedings preliminary to ex-
tensions.

269. Remedy for fraud in procuring
or in granting extensions.
270. "The benefit of the extension of

a patent shall extend to the assignees and grantees of the right to use the thing patented, to the extent of their interest therein." 271. Adjudged meaning of the statute quoted in the last section.

$255. THE Constitutional provision relevant to the duration of patent rights, is that such rights, when granted, shall be granted for limited times.' The Patent Act of 1790' provided, that under the circumstances and conditions prescribed therein, the Secretary of State, and the Secretary of War, and the Attorney-General, or any two of them, might issue letters patent for an invention, for any term not exceeding fourteen years. The same provision was made in the Patent Act of 1793. Under that law, patents

1 Constitution of the United States, Article I. Section 8.

* 1 Statutes at Large, Ch. 7, Sec

tion 1, p. 109.

31 Statutes at Large, Ch 11, Section 1, p. 321.

The

were generally, if not universally, granted for the full fourteen years; but whether so granted or not, there was, prior to 1832, no mention in the statutes of any way in which any patent, once granted, could be extended, and its duration thus prolonged. In July of the last-mentioned year, it was enacted: "That application to Congress to prolong or renew the term of a patent, shall be made before its expira tion." The same section also provided a method of proceeding, to be followed by applicants in such cases. entire section was, however, merely a self-imposed limitation on a constitutional power of Congress: the power to promote the progress of science and useful arts, by securing for limited times, to inventors the exclusive right to their respective inventions. Inasmuch as Congress could disregard that limitation in any particular case,' the section was not one of great importance, even while it remained on the statute book; and it was repealed by the Patent Act of July 4, 1836. Since that date, the extending of patents by Congress, has been regulated by no other law than the Constitution.

3

§ 256. Patents may be extended by Congress at any time, either before or after their expiration. This power was exercised as early as 1808. In one later case such an extension was granted nearly three years before the then existing exclusive right was to expire; and in another, more than twenty-one years intervened between the expiration of the original term of the patent, and the granting of the extension. Congressional extensions, when granted, are usually granted for the term of seven years; but they may lawfully be granted for any limited length of time, whether longer or shorter than that.

1 4 Statutes at Large, Ch. 162, Section 2, p. 559.

The Fire Extinguisher Case, 21 Fed. Rep. 42, 1884.

35 Statutes at Large, Ch. 357, Section 21, p. 125.

4 Bloomer v. Stolley, 5 McLean, 161, 1850; Jordan v. Dobson, 2 Ab

bott, 407, 1870; The Fire Extinguisher Case, 21 Fed. Rep. 42, 1884. 5 Evans v. Jordan, 9 Cranch, 199. 1815.

Bloomer v McQuewan, 14 Howard, 539, 1852.

Agawam Co. v. Jordan, 7 Wallace, 583, 1868.

§ 257. Some special acts, for the extension of patents, merely extend their duration by a simple legislative edict, and do no more.' Others instruct the Commissioner of Patents to ascertain the truth relevant to sundry questions of fact mentioned therein; and authorize him to decide whether in view of those facts, and of sundry considerations of justice and of public policy, the patent ought to be extended; and direct him to extend it, if his decision is in the affirmative. When patents are extended in this latter method, those provisions of the special act which limit the operation of the extension, need not be recited in the certificate of extension, which the Commissioner indorses upon the patent or otherwise puts forth. The law reads the certificate in the light of that statute, without any such recital.'

§ 258. Special Acts of Congress granting or authorizing extensions of patents, come within the general rule, that the validity of a statute cannot be questioned in courts, on any allegation that its passage was procured by fraud or bribery. Such Acts are considered as engrafted on the general patent laws, and are to be construed in connection with them. Although the Constitution authorizes Congress to grant exclusive rights in inventions only to inventors, Congress may provide, when exercising its power in particular cases, that assignees of the inventors shall have the same rights under the extended term, that they had under the original term of the patent extended."

§ 259. Patent Office extensions of patents, were first authorized by the Patent Act of July 4, 1836.' By the Patent Act of March 3, 1861, they were prohibited, as to all patents

1 Bloomer v. McQuewan, 14 Howard, 539, 1852; Woodworth v. Edwards, 3 Woodbury and Minot, 123, 1847.

Agawam Co. v. Jordan, 7 Wallace, 583, 1868.

3

Agawam Co. v. Jordan, 7 Wallace, 583, 1868.

* Gibson v. Gifford, 1 Blatch. 529,

1850.

Bloomer v. McQuewan, 14 Howard, 539, 1852; Jordan v. Dobson, 2 Abbott, 408, 1870.

6 Blanchard's Gun-Stock Turning Factory v. Warner, 1 Blatch. 259, 1848.

15 Statutes at Large, Ch. 357, Section 18, p. 124.

thereafter granted.' The last extension of the kind, was granted in 1875, and expired in 1882. It is improbable that any general law, authorizing such extensions, will ever again be enacted in the United States. Inasmuch, however, as actions are still liable to be brought for past infringements of some of those formerly in force, and also because part of the rules and doctrines of law established in suits for infringements of Patent Office extensions, are equally applicable to suits based on Congressional extensions, it is expedient to explain those rules and doctrines in this book.

§ 260. The Patent Act of 1836 provided,' that whenever any patentee of an invention should desire an extension of his patent, he might make application therefor in writing, to the Commissioner of the Patent Office, setting forth the grounds thereof; and that the Commissioner should thereupon, and on the payment of a specified fee, cause to be published a notice of the application, and of the time and place when and where the same would be considered. The Secretary of State, the Commissioner of the Patent Office, and the Solicitor of the Treasury, were constituted a board to hear and decide upon the evidence produced before them both for and against the extension. If, upon such hearing in any particular case, it appeared to the board, having a due regard to the public interest, that it was just and proper that the term of the patent should be extended by reason of the patentee, without neglect or fault on his part, having failed to obtain from the use and sale of his invention, a reasonable remuneration for the time, ingenuity and expense bestowed upon the same, and upon its introduction into public use; the statute made it the duty of the Commissioner to extend the patent, by making a certificate thereon of such extension, for the term of seven years from and after the expiration of the first term. The statute also provided that no such extension should be granted after the expiration of the term for which it was

112 Statutes at Large, Ch. 88, Sections 16, p. 249.

25 Statutes at Large, Ch. 357, Section 18, p. 124.

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