Page:Federal Reporter, 1st Series, Volume 4.djvu/737

 GIANT POWDER CO. »i CAL. VIGOBIT POWDEB 00. T2S �"whenever any patent is inoperative or invalid, by reason of a defective or insnfiScient specification, or by reason of the patentee claiming as his own invention or discovery more than he had a right to claim as new, if the error bas arisen by inadvertence, accident, or mistake, and witbout any fraud- nlent or deceptive intention, the commissioner shall, on the surrender of such patent and the payment of the duty required by law, cause a new patent for the same invention, and in aceordance with the corrected specification, to be issued to the patentee, or in case of his death, or of an assignaient of the whole or any undivided part of the original patent, then to his executors, administrators, or assigna, for the unexpired part of the term of the original patent. Such surrender shall take effect upon the issue of the amended patent. " �As thus seen, a re-issue can only be had when the original patent is inoperate or invalid from one of two causes — either by reason of a defective or insufficient specification, or by reason of the patentee claiming as his own invention or dis- covery more than he had a right to claim as new; and even then the patentee can only obtain a re-issue where the error bas arisen from inadvertence, accident, or mistake, and witb- out any fraudulent or deceptive intention. �As the power to accept a surrender and issue new letters is vested exclusively in the commissioner of patents, his decision in the matter is not open to collateral attack in a suit for the infringement of re-issued letters. His action, like that of ail ofScers especially designated to perform a particular duty of a judical cbaracter for the govemment, is presumed to be cor- rect until impeached by regular proceedings to annul or modify it. He must judge, in the first instance, of the suffi- cieacy of the original specification — whether the same is de- fective in any particular; whether such defect was the resuit of an unintentional error; and, if so, to wbat extent a new or additional specification should be allowed to describe correctly the invention claimed; and it is to be assumedin every case* that he bas done his duty. The decisions of the supreme court to this effect are nuiiierous, and the doctrine is among the settled rnles of patent law. But it does not preclude the ����