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the provisions of the law intended for the encouragement of inventive genius.5

The discouragement interposed by the exactions under the English patent law is still more oppressive, the expense of obtaining a patent for England being about six hundred and ten dollars; for England and Scotland, ten hundred and sixty-five dollars; for England, Scotland and Ireland, seventeen hundred and fifty dollars. This large tax has contributed materially to diminish the usefulness of the English patent law. It ought to be kept in mind by legislators that the persons most likely to make mechanical inventions, and to whom, in fact, the public is mostly indebted for them, are generally not able to bear heavy pecuniary burthens. The consequence of imposing such burthens is, that they often entirely lose the fruits of their ingenuity by not being able to take out patents, or are obliged to throw a greater part of them into the hands of persons of wealth, to whom they are under the necessity of resorting to make the advances necessary for securing the privilege.

If it be alleged in justification of these exactions, that they discourage applications for patents for

The annual revenue from patents in France was stated by M. Renouard, in 1825, to be about 15,000 dollars. C. 3. § 3. p. 162. • Report of Com. of House of Com. 1829, App.

7 Kent's Comm. v. 2, p. 270.

frivolous inventions, it may be replied that a much smaller tax would be amply sufficient for this purpose. But, in truth, this is no justification; first, because frivolous patents are of no public injury, and, secondly, because the burthen weighs very unequally, being a slight obstacle to a wealthy individual or company, but an absolute prohibition to a mechanic without capital.

CHAPTER XIII.

Proceedings in issuing Patents.

Sec. 1. Authority of the Commissioner of Patents.

2. Appeal to Examiners.

3. Conflicting Applications.

4. Signature.

5. Recording.

Sec. I.-AUTHORITY OF THE COMMISSIONER of PATENTS.

By the act of 1793, it was made the duty of the secretary of state to cause patents to be issued, the patent being submitted to the attorney general, and by him certified to be made out in conformity to the law, before being signed by the President. The law

of 1836 has assigned the duty of superintending the issuing of patents to the commissioner of patents. The seventh section of that law provides, that on an application being made for a patent, and a specification filed, and the fee paid, "the commissioner shall make, or cause to be made, an examination of the alleged new invention or discovery; and if on such examination it shall appear that the same had been invented or discovered by any other person in this country prior to the alleged invention or discovery thereof by the applicant, or that it had been patented, or described in any printed publication in this or any foreign country, or had been in public use, or on sale with the applicant's consent or allowance prior to the application, if the commissioner shall deem it to be sufficiently important, it shall be his duty to issue a patent therefor. But whenever, on such examination, it shall appear to the commissioner that the applicant was not the original and first inventor or discoverer thereof, or that any part of that which is claimed as new had before been invented or discovered or patented, or described in any printed publication in this or any foreign country, as aforesaid; or that the description is defective and insufficient, he shall notify the applicant thereof, giving him briefly such information and references as may be useful in judging of the propriety of waiving his application or of altering his specification to embrace only that part of the invention or discovery

which is new. In every such case, if the applicant shall elect to withdraw his application, relinquishing his claim to the model, he shall be entitled to receive back twenty dollars, part of the duty required by this act, on filing a notice of such intention in the patent office."

According to the phraseology of the statute of 1793, by which Mr. Justice Story suggests that the intention may have been to prevent insufficient specifications,' the secretary of state and attorney general appear to have been invested with a discretionary authority on the subject of issuing patents; but that act did not prescribe the particular questions upon which it was the duty of one or the other of these officers to decide. It was provided that on application, it should be lawful for the secretary to cause letters patent to be made out," which should be "delivered to the attorney general to be examined, who, if he found the same conformable to that act, should certify accordingly." The law accordingly admitted of the construction that it was left to the discretion of the secretary of state whether to cause the patent to be made out, and the attorney general, if he found the patent in any respect not conformable to law, might withhold his certificate,

' Whittemore v. Cutter, 1 Gall. 429.

2 See Whittemore v. Cutter, 1 Gall. R. 429.

and thus prevent the issuing of the patent. But, in practice, neither of those officers ever undertook to form any opinion of the originality, novelty, importance, or usefulness of the invention, or the sufficiency of the specification. The agency of those officers in issuing patents was considered to be merely ministerial. French patents contain an express provision that the government does not, by issuing the patent, intend to guaranty the novelty or usefulness of the invention; though an examination is made of the specification and drawings. In England, the agency of the attorney general, in regard to the issuing of patents, is considered to be merely ministerial. In one respect, however, a discretion is exercised in England by the attorney general, in the issuing of patents, namely, in determining the time within which the specification is to be filed. A compliance with the terms of the patent, in this particular, is considered to be material to its validity, but no other point is predetermined which affects the validity of the patent.

It is evident that the judgment of any officer of the government, on the novelty and originality and utility of the invention, and the sufficiency of the

3 It has been suggested that the attorney general could not be supposed to examine every specification critically. North Am. Rev. v. 23, p. 302. * Grant v. Raymond, 6 Pet. S. C. R. 241.

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