Page:Federal Reporter, 1st Series, Volume 4.djvu/739

 GIANT POWDDB 00. V. CAL. VIGOKIT EOWDEB 00. 72S �missioner in granting the re-issue had acoordingly acted in a case not warranted by the statuts, it must be assumed that the re-issue was properly granted, and that the action of the commissioner could not therefore be questioned? The decis- ions support no such conclusion. �The commissioner is an officer of limited authority ; and, ■whene-ver it is apparent upon inspection of the patents that he has acted without authority, or has exceeded it, his judg- ment must necessarily be regarded as invalid. His action must be restricted to the particular cases mentioned in the Btatute. That only authorizes a re-issue when, from an unin- tentional error in the description of the invention, the patent is invalid or inoperative, or when the claim of the patentee exceeds his invention. It is not sufficient that the patent does not cover ail that the patentee could have claimed if his specifications had corne up to his invention. If he has in- vented or discovered something beyond his original specifica- tions and claim, his course is not to endeavor to cover it by a re-issue, but to seek.a separate patent forit. �The Btatute authorizing a re-iissue was intended to protect against accidents and mistakes, and it is only when thus restricted that it can be regarded as a beneficiai statuts. If a patentee does not embrace by his specifications and claim ail that he might have done, andtherehas beenno clear mistake, inadvertence, or accident in their preparation, the presump- tion of law is that he has abandoned to the use of the public everything outside of them, or at least has postponed any additional claim for further consideration. �In Russell v. Dodge, 93 U. S. 463, the supreme court, speak- ing of a re-issue under the law of 1836, which is similar to the law of 1870, under which the present re-issued letters were obtaiaed, said : "A defective specification could be rendered more definite and certain so as to embrace the claim made, or the claim could be so modified as to correspond with the specification; but except under special ciroumstances, such as occurred in the case of Lockwoad v. Morey, 8 Wall. 230, where the inventer was induced to limit his claim by the mis- take of the commissioner of patents, this was the extent to ����