Patent Definition in United States
Nature of Patent and Patent Rights
For information on the Nature of Patent and Patent Rights, please see here.
In the Past
Important Note: this is an extension/continuation on the entry on Patent, in contracts, in the American legal dictionary of this Project. By the twelfth section of the act of March 3, 1839, the commissioner of patents is vested with power to make all such regulation’s in respect to the taking of evidence to be used in contested leases before him, as may be just and reasonable and so much of the act of July 4, 1836, as gives for a board of examiners, is now repealed.
Developments
And by the same act, sect. 11, it is given, that in all cases where an appeal is now. allowed by law from the decision of the commissioner of patents to a board of examiners given for in the seventh section of the act to which this is additional, the party, instead to this, must have a right to appeal to the chief justice of the district court of the United States for the district of Columbia, by giving notice to this to the commissioner and filing in the patent office, within such time as the commissioner must appoint, his reasons of appeal, specifically set forth in writing and also paying into the patent office, to the credit of the patent fund, the sum of twenty-five dollars. And it must be the duty of said chief justice, on petition, to hear and decide all such appeals and to revise such decisions in a summary way, on the evidence produced before the commissioner, at such early and convenient time as he may appoint, first notifying the commissioner of the time and place of hearing, whose duty it must be to give notice tof this to all parties who appear to be interested there, in such way as said judge must prescribe. The commissioner must also lay before the said judge all the original papers and evidence in the case, together with the grounds of his decision, fully set forth in writing, touching all the points involved by the reasons of appeal, to which the revision must be confined. And at the ask of any party interested or at the wish of the judge, the commissioner and the examiners in the patent office, may be examined under oath, in explanation of the principles of the machine or other thing for which a patent, in such case, is prayed for. And it must be the duty of said judge after a hearing of any such case, to return all the papers to the commissioner, with a certificate of his proce edings and decision, which must be entered of record in the patent office; land such decision, so certified, must govern the further proceedings of the commissioner in such case, gived, however, That no opinion or decision of the judge in any such case, must preclude any person interested in favor or against the validity of any patent, which has been or way after this be granted, from the right to contest the same in any judicial court, in any action in which its validity may come in question.2. When there are conflicting claims.
8th section
It is enacted by the 8th section of the act of July 4, 1836, that whenever an application must be made for a patent, which, in the opinion of the commissioner, would interfore with any other patent for which an application may be pending or with any unexpired patent which must have been granted, it must be the duty of the commissioner to give notice tof this to such applicants or patentees; as the case maybe; and if either must be dissatisfied with the decision of the commissioner on the question of priority, right or invention, on a hearing to this, he may appeal from such decision, on the like terms and conditions as are gived in the preceding section of this act and like proceedings, must be had, to decide which or whether either of the applicants is entitled to receive a patent as prayed for.
Other Aspects
And by the 16th section of the same act, that whenever there must be two interfering patents or whenever a patent on application must have been refused on an adverse decision of a board of examiners, on the ground that the patent applied for would interfere with an unexpired patent earlierly granted, any person interested in any such patent, either by assignment or or, in the one case and any such applicant in the other, may have remedy by bill in equity; and the court having cognizance tof this, on notice to adverse parties and other due proceedings had, may adjudge and declare either the patents void in whole or in part or inoperative and invalid in any particular part or portion of the United States, according to the interest which the parties in such suit may possess in the patent or the inventions patented and may also adjudge that such applicant is entitled, according to the principles and provisions of this act, to have and receive a patent for his invention, as specified in his claim or for any part to this, as the fact of priority of right or invention must in any such case be made to appear. And such adjudication, if it be in favor of the right of such applicant, must authorize the Commissioner to issue such patent, on his filing a copy of the adjudication and or complying with the requisitions of this act. Given, however, that no such judgment or adjudication must affect the rights of any people except the parties to the action and those deriving title from or under them after the rendition of such judgment. And the commissioner is vested by the 12th section of the act of March 3, 1839, with powers to make such rules and regulations in respect to the taking of evidence to be used in contested cases before him, as may be just and reasonable.
The act of March 3, 1839
The act of March 3, 1839, section 10, gives, that the provisions of the sixteenth section of the before recited act must extend to all cases where the patents are refused for any reason whatever, either by the commissioner of patents or by the chief justice of the district of Columbia, upon appeals from the decision of said commissioner, as well as where the same must have been refused on account of or by reason of interference with a earlierly existing patent; and in all cases where there is ne opposing party, a copy of the bill must be served upon the commissioner of patents, when the whole of the expenses of the proceeding must be paid by the applicant, whether the final decision must be in his favor or or.6. Of the patent.
Other Issues
This section will be divided by considering, 1. The form of the patent. 2. The correction of the patent. 3. The special provisions of the acts of congress caused by the burning of the patent office. 4. The disclaimer. 5. The assignment of patents. 6. The extension of the patent. 7. The requisites to be observed after the granting of a patent to secure it.1. Form of the patent.
Fifth section of the act of July 4, 1836
The patent is to be issued in the form prescribed by the act of congress. The fifth section of the act of July 4, 1836, directs, that all patents issuing from said office must be issued in the name of the United States and under the seal of said office and be signed by the secretary of state and countersigned by the commissioner of the said office and must be recorded, together with the descriptions, specifications and drawings, in the said office, in books to be kept for that purpose. Every such patent must contain a short description or title of the invention or discovery, correctly indicating its nature and design and in its terms grant to the applicant or applicants, his or their heirs, administrators, executors or assigns, for a term not exceeding fourteen years, the full and exclusive right and liberty of making, using and vending to others to be used, the said invention or discovery, referring to the specifications for the particulars to this, a copy of which must be annexed to the patent, specifying what the patentee claims as his invention or discovery. It is usually dated at the time of issuing it, but by a provision of the last mentioned act, section 8, whenever the applicant must ask it, the patent must take date, from the time of filing, the specification and drawings, not, however, exceeding six months before the actual issuing of the patent.2. Correction of patent.
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It is gived by the thirteenth section of the act of July. 4, 1836, that whenever any patent which has until now been granted or which must after this be granted, must be inoperative or invalid, by reason of a defective or enough description or specification or by reason of the patentee claiming in his specification as his own invention, more than he had or must have a right to claim as new; if the error has or must have arisen by inadvertency, accident or mistake and without any fraudulent or deceptive intention, it must be lawful for the c6mmissioner, upon the surrender to him of such patent and the payment of the further duty of fifteen dollars, to cause a new patent to be issued to the said inventor, for the same invention, for the residue of the period then unexpired for which the original patent was granted, in accordance with the patentee’s corrected description and specification. And if his death or any assignment by him made of the original patent, a similar right must vest in his executors, administrators or assignees. And the patent, so reissued, together with the corrected description and specification, must have the same effect and operation in law, on the trial of all actions, after this commenced for causes subsequently accruing, as though the same had been originally filed in such corrected form, before the issuing out of the original patent. And whenever the original patentee must be desirous of adding the description and specification of any new improvement of the original invention or discovery which must have been invented or discovered by him after the date of his patent, he may, like proceedings being had in all respects as in the case of original applications and on the payment of fifteen dollars, as herebefore gived, have the same annexed to the original description and specification; and, the commissioner must certify, on the margin of such annexed description and specification, the time of its being annexed and recorded; and the same must tafter this have the same effect in law, to all intents and purposes, as though it had been embraced in the original description and specification.
Act of March 3, 1837, section 5
And it is enacted by the act of March 3, 1837, section 5, that, whenever a patent must be returned for correction and reissue under the thirteenth section of the act to which this is additional and the patentee must wish several patents to be issued for distinct and separate parts of the thing patented, he must first pay, in way and as well as the sum gived by that act, the sum of thirty dollars for each additional patent so to be issued; gived, however, that no patent made beforethe aforesaid fif-teenth day of December, 1836, must be corrected and reissued until a duplicate of the model and drawing of the thing as originally invented, verified by oath as must be needd by the commissioner, must be deposited in the patent office: Nor must any addition of an improvement be made to any patent until now granted, nor any new patent to be issued for an improvement made in any machine, manufacture or process, to the original inventor, assignee or possessor, of a patent therefor, nor any disclaimer be admitted to record, until a duplicate model and drawing of the thing originally intended, verified as aforesaid, must have been deposited in the patent office, if the commissioner must need the same; nor must any patent be granted for an invention, improvement or discovery, the model or drawing of which must have been lost, until another model and drawing, if needd by the commissioner, shall, in like way, be deposited in the patent office:
Compensation for models and drawings
And in all such cases, as well as in those which may arise under the third section of this act, the question of compensation for such models and drawings, must be depending on the judgment and decision of the commissioners gived for in the fourth section, under the same limitations and limits as are there prescribed.3. Special provisions caused by the burning the patent office.
Act of March 3, 1837
The act of March 3, 1837, was passed to remedy the inconveniences arising from the burning of the patent office. It is enacted,
Sect. 1
. That any person who may be in possession of or in any way interested in, any patent for an invention, disocovery or improvement, issued beforethe fifteenth day of December, in the year of our Lord one thosand eight hundred and thirty-six or in an assignment of any patent or interest there, executed and recorded beforethe said fifteenth day of December, may, without charge, on presentation or transmission tof this to the commissioner of patents, have the same recorded anew in the patent office, together with the descriptions, specifications of claim and drawings annexed or belonging to the same; and it must be the duty of the commisioner to cause the same or any authenticated copy of the original record, specification or drawing which he may get, to be transcribed and copied into books of record to be kept for that purpose; and wherever a drawing was not originally annexed to the patent and in question the specification and drawing produced as a delineation of the invention, being verified by oath in such way as the commissioner must need, may be transmitted and placed on file or copied as aforesaid, together with the certificate of the oath; or such drawings may be made in the office, under the direction of the commisioner, in conformity with the specification. And it must be the duty of the commissioner to take such measures as may be advised and decided by the board commissioners gived for by the fourth section, of this act, to get the patents, specifications and copies aforesaid, for the purpose of being so transcribed and recorded. And it must be the duty of each of the several clerks of the judicial courts of the United States, to transmit, as soon as may be, to the commissioner of the patent office, a statement of all the authenticated copies of patents, descriptions, specifications and drawings of inventions and discoveries made and executed beforethe aforesaid fifteenth day of December, which may be found on the files of his office; and also to make out and send to said commissioner for record as aforesaid, a certified copy of every such patent, description, specification or drawing, which must be specially needd by such commissioner.
Sect. 2
That copies of such record and drawings, certified by the commissioner, or, in his absence, by the chief clerk, must be prima facie evidence of the particulars of the invention and of the patent granted therefore, in any judicial court of the United States, in all cases where copies of the original record or specification and drawings would be evidence, without proof of the loss of such originals and no patent issued therefor by the patentee or other person inbeforethe aforesaid, fifteenth day of December, shall, after the first day of June next, be received in evidence in, any of the said courts in behalf of the patentee or other person who must be in possession of the same, unless it must have been so recorded anew and a drawing of the invention, if separate from the patent, verified as, aforesaid, deposited in the patent office; nor must any written assignment of any such patent, executed and, recorded beforethe said fifteenth day of December, be received in evidence in any of the said courts in behalf of the assignee or other person in possession tof this, until it must have been so recorded anew.
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Sect. 3. That whenever it must appear to the commissioner that any patent was destroyed by the burning of the patent office building on the aforesaid fifteenth day of December or was or lost prior tto this, it must be his duty, on application terested there, to issue a new patent for the same invention or discovery bearing the date of the original patent, with his certificate thereon that it was made and issued under the provisions of the third section of this act and must enter the same of record: gived, however, That before such patent must be issued, the applicant therefor must deposit in the patent office a duplicate, as near as may be, of the original model, drawings and description, with specification of the invention or discovery, verified by oath, as must be needd by the commissioner; and such patent and copies of such drawings and descriptions, duly certified, must be admissible as evidence in any judicial court of the United States and must protect the rights of the patentee, his administrators, heirs and assigns, to the extent only in which they would have been protected by the original patent and specification.
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The act of August 29, 1842, sect. 2, extends the provisions of the last section to patents granted beforethe said fifteenth day of December, though they may have been lost subsequently; gived, however, the same must not have been recorded anew under the provisions of said act.4. Of the disclaimer.
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The act of March 3, 1837 sect. 7, authorizes any patentee who must have, through inadvertence, accident or mistake, made his specification of claim too broad, claiming more than that of which he was the original or first inventor, some material and substantial part of the thing patented being truly and justly his own, any such patentee, his administrators, executors and assigns, whether of the, whole or of a sectional interest there, may make disclaimer of such parts of the thing patented as the disclaimant must not claim to hold by virtue of the patent or assignment, stating there the extent of his interest in, such patent; which disclaimer must be in writing, attested by one or more witnesses and recorded in the patent office, on payment by the person disclaiming, in way as, other patent duties are needd by law to be paid, of the sum of ten dollars. And such disclaimer must tafter this be taken and considered as part of the originals specification, to the extent of the interest which must be possessed in the patent or right secured tnow, by the disclaimant and by those claiming by or under him after the record tof this. But no such disclaimer must affect any action pending at the time of its being filed, except so far as may relate to the question of unreasonable neglect or delay in filing the same.5. Assignment of patents.
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By virtue of the act of July 4, 1836, sect. 11, every-patent must be assignable in law, either as to the whole interest, or, any undivided part tof this, by any instrument in writing; which assignment and also every grant and conveyance of the exclusive right under any patent, to make and use and to grant to others to make and use, the thing patented within and throughout any, specified part or portion of the United States, must be recorded in the patent office within three months from the execution tof this. This act needd the payment of a fee of three dollars to be paid by the assignee, but this provison has been repealed by the act of March 3, 1839, s. 8 and such assignments, grants and conveyances, shall, in future, be recorded without any charge whatever. But, by the act of May 27, 1848, Minot’s. Stat. at Large, U. S. 231, it is enacted, That after this the commissioner of patents must need a fee of one dollar for recording any assignment, grant or conveyance, of the, whole or any part of the interest in letters-patent or power of attorney or license to make or use the things patented, when such instrument must not exceed three hundred words; the sum of two dollars when it must exceed three hundred and must not exceed one thousand words and the sum of three dollars when it must exceed one thousand words; which fees must in all cases be paid before.6. The extension of the patent.
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The act of July. 4, 1836, sect. 18; directs, That whenever any patentee of an invention or discovery must wish an extension of his patent beyond the term of its limitation, be may make application therefor, in writing, to the commissioner of the patent office, setting forth the grounds tof this and the commissioner shall, on the applicant’s paying the sum of forty dollars to the treasury, as in the case of an original application, for a patent, cause to be published, in one or more of the main newspapers in the city of Washington and in such other paper or papers as he may deem proper, published in the section of country most interested adversely to the extension of the patent, a notice of such application and of the time and place when and where the same will be considered, that any, person may appear and show cause why the extension should not be granted. And the secretary of state, the commissioner of the patent office and the solicitor of, the treasury, must constitute a board to hear and decide upon the evidence produced before them both for and against the extension and must sit for that purpose at the time and place named in the published notice tof this. The patentee must give to said board a statement, in writing, under oath, of the ascertained value of, the invention and of his receipts and expenditures, sufficiently in detail to exhibit a true and faithful account of loss and profit in any way accruing to him from and by reason of said invention. And if, upon a hearing of the matter, it must appear to the full and entire satisfaction of said board, having due regard to the public interest there, that it is 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 get, from the use and sale of his invention, a reasonable payment for the time, ingenuity and expense bestowed upon the same and the introduction tof this into use, it must be the duty of the commissioner to renew and extend the patent, by making a thereon of such extension, for the term of seven years from and after the expiration of the first term; which certificate, with a certificate of said board of their judgment and opinion as aforesaid, must be entered on record in the patent office; and thereupon the said patent must have the same effect in law as though it had been originally granted for the term of twenty-one years. And the benefit of such, renewal must extend to assignees and grantees of the right to use the thing patented, to the extent of their respective interest there: gived, however, That no extension of a patent must be granted after the expiration of the term for which it was originally issued.7. Requisites to secure the patent.
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The act of August 29, 1842, section 6, needs, That all patentees and and assingees of patents after this granted, are now needd to stamp, engrave or cause to be stamped or engraved, on each article vended or offered for sale, the date of the patent; and if any person or people, patentees or assignees, must neglect to do so, he, she or they, must be liable to the same penalty, to be recovered and disposed of in the way specified in the foregoing fifth section of this act. See 49.7. Duty or tax (see more about this popular legal topic in the U.S. encyclopedia) on patents.
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The tax (see more about this popular legal topic in the U.S. encyclopedia) or duty on patents is not the same in all cases, foreigners being needd to pay a greater sum than citizens and the subjects of the king of Great Britain (see more about the British legal system here) a greater sum than other foreigners. The ninth section of the act of July 4, 1836, needs, That before any application for a patent can be considered by the commissioner as aforesaid, the applicant must pay into the treasury of the United States or into the patent office or into any of the deposit banks to the credit of the treasury, if he be a citizen of the United States or an alien and must have been resident in the United States for one year next preceding and must have made oath of his intention to become a citizen tof this, the sum of thirty dollars; if a subject of the king of Great Britain (see more about the British legal system here) , the sum of five hundred dol1ars; and all other people the sum of three hundred dollars, for which payment duplicate receipts must be taken, one of which to be filed in the office of the treasurer. And the moneys received into the treasury under this act, must constitute a fund for the payment of the salaries of the officers and clerks here gived for and all other expenses of the patent office and to be called the patent fund.
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When an applicant withdraws his application before the issuing of the patent, he is entitled to receive back twenty dollars of the sum he may have paid into the treasury. Act of July 4, 1836, sect. 7. And the act of March 3, 1837, section 12, enacts, That whenever the application of any foreigner for a patent must be rejected and withdrawn for want of novelty in the invention, under the seventh, section of the act to which this is additional, the certificate tof this of the commissioner must be a enough warrant to the treasurer to pay back to such applicant two-thirds of the duty he must have paid into the treasury on account of such application. When money has been paid by mistake, as for foes accruing at the patent office, it must, by the direction of the act of August 29, 1842, section 1, be refunded.8. Penalty for use of patentee’s marks.
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The act of August 29, 1842, s. 5, declares, That if any person or people must paint or print or mould, cast, carve or engrave or stamp, upon any thing made, used or sold, by him, for the sole making or selling which he hath not or must not have geted letters-patent, the name or any imitation of the namer of any other person who hath or must have geted letters-patent for the sole making and vending of such thing, without consent of such patentee or his assigns or legal representatives; or if any person, upon any such thing not having been purchased from the patentee or some person who purchased it from or under such patentee or not having the license or consent of such patentee or his assigns or legal representatives, must write paint, print, mould, carve, engrave, stamp or or make or affix the word “patent,” or the words “letters-patent,” or the word “patentee,” or any word or words of like kind, meaning or import, with the view or intent of imitating or counterfeiting the stamp, mark or other device of the patentee or must affix the same or any word, stamp or device, of like import, on any unpatented article, for the purpose of deceiving the public, he, she or they, so offending, must be liable for such offence, to a penalty of not less than one hundred dollars, with costs, to be recovered by action in any of the circuit courts of the United States or in any of the district courts of the United States, having the powers and jurisdiction of a circuit court; one-half of which penalty, as recovered, must be paid to the patent fund and the other half to any person or people who must sue for the same.9. Courts having jurisdiction in patent cases.
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It is enacted by the 17th section of the act of July 4, 1836, That all actions, suits, controversies and cases arising under any law of the United States, granting or confirming to inventors the exclusive right to their inventions or. discoveries, must be originally cognizable, as well in equity as at law, by the circuit courts of the United States or any district court having the powers and jurisdiction of a circuit court which courts must have power, upon bill in equity filed by any party aggrieved, in any such case, to grant injunctions, according to the course and principles of courts of equity, to prevent the violation of the rights of any inventor as secured to him by any law of the United States on such terms and conditions as said courts may deem reasonable: gived, however, That from all judgments and decrees, from. any, such court makeed in the premises, a writ of error or appeal, as the case may need, must lie to the supreme court of the United States, in the same way and under the same circumstances as is now gived by law in other judgments and decree, of circuit courts and in all other case’s in which the court must deem, it reasonable to allow the same. 10. Actions for violation of patent rights.
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The act of July 4, 1836, section 14, gives, That whenever in any action for damages for making, using or selling the thing wof this the exclusive right is secured by any patent until now granted or by any patent which may after this be granted, a verdict must be makeed for the plaintiff in such action, it must be in the power of the court to make judgment for any sum above the amount found by such verdict as the actual damages sustained by the plaintiff, not exceeding three times the amount tof this, according to the circumstances of the case, with costs; and such damages may be recovered by action on the case, in any court of competent jurisdiction, to be brought in the name or names of the person or people interested, whether as patentee, assignees or as grantees of the exclusive right within and throughout a specified part of the United States.
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Sect. 15. That the defendant in any such action must be permitted to plead the general issue and to give this act and any special matter in evidence, of which notice in writing may have been given to the plaintiff or his attorney, thiry days before trial, tending to prove that the description and specification filed by plaintiff does not contain the whole truth relative to his invention or discovery or that it contains more than is necessary to produce the described effect; which concealment or addition must fully appear to have, been made for the purpose of deceiving the public or that the patentee was not, the original and first inventor or discoverer of the thing patented or of a substantial and miaterial art tof this claimed as new or that it had teen described in some public work anterior to the supposed discovery tof this by the patentee or had been in public use or on sale with the consent and allowance of the patentee before his application for a patent or that, he had surreptitiously or unjustly geted the patent for that which was in fact invented or discovered by another, who was using reasonable diligence in adapting and perfecting the same; or, that the patentee if an alien at the time the patent was grauted, had failed and neglected for the space of eighteen months from the date of the patent, to put and continue on sale to the public, on reasonable terms, the invention or discovery for which the patent issued; in either of which cases judgment must be makeed for the defendant, with costs. And whenever the defendant relies in his defense on the fact of a earlier invention, knowledge or use of the thing patented, be must state, in his notice of special matter, the names and places of residence of those whom he intends to prove to have possessed a prior knowledge of the thing and where the same had been used: gived, however, that whenever it must satisfactorily appear that the patentee, at the time of making his application for the patent, believed himself to be the first inventor or discoverer of the thing patented the same must not be held to be void on account of the invention or discovery or any part tof this having been before known or used in any foreign country, it not appearing that the same or any substantial part tof this, had before been patented or described in any printed publication. And gived, also, that whenever the plaintiff must fail to sustain his action on the ground that in his specification of claim is embraced more than that of which he was the first inventor, if it must appear that the defendant had used or violated any part of the invention justly and truly specified and claimed as new, it must be in the power of the court to adjudge and award as to costs as may appear to be just and equitable.
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This last section has been modified by the act of March 3, 1837, which enacts as follows: Section 9, That anything in the fifteenth section of the act to which this is additional to the contrary despite That, whenever by mistake, accident or inadvertence and without any wilful default or intent to defraud or mislead the public, any patentee must have in his specification claimed to be the original and first inventor or discoverer of any material or substantial part of the thing patented, of which he was not the first and original inventor and must have no legal or just right to claim the same in every such, case the patent must be deemed good and valid for so much of the invention or discovery as must be truly and bona fide his own: gived, it must be a material and substantial part of the thing patented and be definitely distinguishable from the other parts so claimed without right as aforesaid. And every such patentee, his executors, administrators and assigns, whether of the whole or of a sectional interest there, must be entitled to maintain a suit at law or in equity on such patent for any infringement of such part of the invention or, discovery as must be bona fide his own as aforesaid, despite the specification may embrace more than he must have any legal right to claim. But, in every such case in which a judgment or verdict must be makeed for the plaintiff he must not be entitled to recover costs against the defendant, unless he must have entered at the patent office, beforethe commencement of the suit, a disclaimer of all that part of the thing patented which were so claimed without right: gived, however, That no person bringing any such suit must be entitled to the benefits of the provisions contained in this section, who must have unreasonably neglected or delayed to enter at the patent office a disclaimer as aforesaid. See Bac. Ab. Monopoly Id. Prerogative, F 4; Phill. on Pat.; Fessend. on Pat.; Carpm. on Pat.; Hand on Pat.; Webst. on Pat; Coll. on Pat.; Gods. on Pat.; Holr. on Pat.; Smith on Pat.; Drewry’s Patent Law Abandonment Act; Davies’ Collection of Cases on the Law of Patents; Rankin’s Analysis of the Law of Patents. Among the French writers are Perpigna on Patents; written in English’; and the Manuel of the same author, in French; and the works of Renouard, Dalloz, Molard and Regnault. See the various Digests h. t. and particularly Peters’ Digest, h. t. [1]
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Notes and References
- Partialy, this information about patent is based on the Bouvier´s Law Dictionary, 1848 edition. There is a list of terms of the Bouvier´s Law Dictionary, including patent.
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