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use in the United States for more than two years prior to the application in this country.'
The statute of 1836, which was in force till the approval of the Act of 1870, required the applicant to make oath or affirmation of what country he was a citizen,' whereas the Act of 1870, and the Revised Statutes, require only his statement on that subject. The old law governs all applications made before July 8, 1870 ; and under it Justice GRIER decided that where an applicant mentioned a wrong country in his oath, that error rendered his patent void, even though it arose from an erroneous opinion relevant to what constituted citizenship of the United States.' But under the Statute of 1870, re-enacted in the Revised Statutes, such an error does not invalidate a patent.'
When an application for a patent is made by an executor or administrator of a deceased inventor, the statute directs the oath to be so varied in form that it can be made by him. Whether, in such a case, it is necessary for the applicant to swear that he believes that the deceased believed himself to be the first inventor, or whether it is necessary for the applicant to swear that he believes that the deceased was in fact the first inventor of the invention, is an unsettled question. If the first is the true view, then an executor may obtain, without perjury, a patent for an invention which he may know to have been previously used in the United States. If the second is the true view, then an executor may be unable to obtain, without perjury, a patent for an invention never before known or used in this country, and not previously patented or described in any printed publication, in this or in any foreign country, and not known or believed by its inventor, to have been previously known or used anywhere in the world. In the first of these contingencies, a wrong may result to the public, and in the last, a wrong may result to the beneficiaries of the deceased.
i Patent Office Rules 46 and 39.
? 5 Statutes at Large, Ch. 357, Section 6, p. 119.
3 Child v. Adams, 1 Fisher, 193,
Tonduer o. Chambers, 37 Fed. Rep. 337, 1889.
Revised Statutes, Section 4896.
$ 124. An affirmation in judicial form may always be substituted for any oath required by any United States statute.' Nor is this rule confined, as it is in the statutes of some of the States, to cases where the affiant informs the magistrate that he has scruples of conscience against taking an oath.
$ 125. The Patent Office fee, due with the application for a patent for a process, machine, manufacture, or composition of matter, is fifteen dollars, and a final fee of twenty dollars is payable after such a patent has been allowed and before it is issued. The fees for patents for designs, vary with the length of the terms of the patents applied for. For such a patent for three years and six months, the fee is ten dollars: for such a patent for seven years, the fee is fifteen dollars : for such a patent for fourteen years, the fee is thirty dollars. Fees for design patents are required to be paid in advance. The final fee, above mentioned, must be paid within six months after the patent is allowed, and notice thereof is sent to the applicant or his agent; and if that fee is not paid within that time, the statute provides that the patent shall be withheld. The Commissioner of Patents has no jurisdiction to do what the statute forbids. If, therefore, he were to issue a patent on an application, the final fee for which was not paid till more than six months after the patent was allowed, he would be acting without authority, and the patent would, for that reason, be void. It is important, therefore, to know how long a time the six months is, which is allowed for the payment of that fee. At common law, a month is a lunar, not a calendar month. Many of the States have reversed this definition by statute, but Congress never has. It is therefore the legal definition of the word “month” in the section now under view. Six calendar months can never consist of fewer than one hundred and eighty-one days, while six lunar months cover a space of time about two weeks shorter
1 Revised Statutes, Section 1.
4 Revised Statutes, Section 4885.
than that. This difference should be regarded by applicants for patents. If a patent were granted on an application, the final fee for which was paid more than six lunar months after the patent was allowed, that patent would be void for want of jurisdiction in the Commissioner to issue it.
8 126. Drawings are required by the statute to be furnished by applicants for patents, in all cases wherein the invention admits of representation by drawings. The statutory requirement relevant to the character of such drawings, is merely that they shall be signed by the applicant or by his attorney in fact, and shall be attested by two wit
The Patent Office rules require, in addition, that drawings must show every feature of the invention covered by the claims; and when the invention consists of an improvement on an old machine, must exhibit, in one or more views, the invention itself, disconnected from the old structure, and also, in another view, so much only of the old structure as will suffice to show the connection of the invention therewith. Those rules also describe numerous other characteristics for drawings.' They are all necessary to the systematic and proper conduct of the business of the office, and must be carefully followed in order to secure favorable action from the Commissioner.
To be as useful as possible, all drawings for letters patent ought to show the true positions and proportions of the parts of the inventions which they purport to delineate; but it is not necessary that they be accurate enough to be used as working drawings, from which to construct specimens of those inventions."
Drawings in applications filed prior to July 8, 1870, and after July 4, 1836, were required to have "written references.". The object of such references was to connect the various parts of the drawings with the corresponding parts
· Revised Statutes, Section 4889.
* American Hide and Leather Splitting Machine Co.o. Machine Co.
4 Fisher, 284, 1870; Royer 0. Coupe, 29 Fed. Rep. 369, 1886.
5 Statutes at Large, Ch. 357, Section 6, p. 119.
of the specification; but it was a sufficient compliance with that statute, where those references were made on the drawings, though not made in the specification. The present statute says nothing about any references, or other means of connecting drawings with specifications; but the Patent Office rules require that they shall be connected by figures adjacent to the different views, and by letters or figures adjacent to the different parts of the drawings, and by incorporating those figures and letters in the descriptive part of the specification.'
$ 127. A model of the invention is required by the statute to be furnished by the applicant, in all cases wherein the invention admits of representation by model, provided the Commissioner requires a model.' This proviso was aot in the statute of 1836, but it was inserted in that of 1870, in order to enable the Commissioner to dispense with models, in all cases where their utility is inferior in value to their cost, and to the room they would occupy in the Patent Office. Under the operation of the proviso, models are at present called for by the Commissioner in very few of the cases which admit of representation thereby.
$ 128. Specimens of compositions of matter, and of the ingredients thereof, are required by the statute to be furnished by applicants for patents for such compositions of matter, in all cases where the Commissioner calls for such specimens.' He always does call for at least a specimen of the composition, put up in proper form to be preserved, unless that composition is in its nature perishable.'
$ 129. An application for a patent dates from its filing in the Patent Office, and not from the day of its execution by the applicant, nor from the day of the deposit of a model in the Patent Office, nor from the day of the deposit of anything there less than the full application,' but where an
Emerson o. Hogg, 2 Biatch. 1, 6 Draper 0. Wattles, 3 Bann. & 1845.
Ard. 618, 1878; Henry o. Frances9 Patent Office Rules 38 and 51. town Soap-stone Stove Co. 5 Bann. 3 Revised Statutes, Section 4891. & Ard. 108, 1880: Campbell 0. New * Revised Statutes, Section 4890. York, 35 Fed. Rep. 504, 1888. 5 Patent Office Rule 62.
application is divided by filing a new one for part of its subject, the new one will date from the date of the old one.' In the absence of other evidence, the date of the application for a particular patent, is taken to be identical with the date of the letters patent itself." Letters patent, and printed certified Patent Office copies of letters patent, not old enough to have expired, always have upon them, in the space under the title, a memorandum that the application therefor was filed on a particular specified day. But no such memorandum is evidence of the fact it recites. It is not evidence at common law, nor in pursuance of
pursuance of any statute. That section of the Revised Statutes' which gives evidential character to certain certified copies, does not include any such memorandum, because it is no part of the letters patent upon which it is placed, and because it is not a copy of any record, book, paper, or drawing belonging to the Patent Office. It is an indication of what some such record, book, or paper appears to show, but it is not evidence of its own accuracy, nor is it covered by the certificate attached to the document upon which it is placed.
$ 130. Those transactions which constitute an original application for a patent, have thus far constituted the subjects explained in this chapter. When such an application is made by any person, it becomes the duty of the Commissioner to cause an examination thereof, and of the invention covered thereby. If, upon such examination, it appears that the applicant is justly entitled to a patent under the law, it is the duty of the Commissioner to issue one to him for that invention. The statute does not prescribe that the Commissioner shall cause this examination to be made by any particular subordinate, and he may overrule the decision of any subordinate to whom he may have committed the matter.
Smith & Griggs Mfg. Co. 0. Sprague, 123 U. S. 250, 1887.
2 Worley v. Tobacco Co. 104 U. S. 342, 1881.
3 Revised Statutes, Section 892.
* Revised Statutes, Sections 4893, 4886.
• Hull o. Commissioner of Patents, 7 Off. Gaz. 559, 1875; 8 Off. Gaz. 46, 1875.