Page:Federal Reporter, 1st Series, Volume 6.djvu/728

 7X6 FBDEEAL BBPOBTEB. �decision will be my apology for a discussion, which, a few ■weeks since, -would have been unnecessary. The case is The Giant Powder Go. v. The California Vigorit Powder Go. 18 0. G. 1339; S. C. 4 Fed. Eep. 720.* In it the learned judge is understood to declare that if the court can discover, upon a comparison of the two instruments, that there was no defect- ive specification to be amended, and that the elaim was not broader than the invention, the action by the commissioner in granting a re-issue was in excess of his jurisdiction, and void ; and that if the patentee claims too little, instead of too much, his specification is not defeotive by reason of that mis- take, but ail which he did not claim was dedicated to the public. I do not mean to say that I consider the decision to be as extensive as this; but it is so understood by some mem- bers of the bar; and there are remarks in the opinion which lend a color to such a construction. �The Kevised Statutes simply re-enact the law upon this subject which ;has been in force since 1836: "Whenever any patent isinoperative or invalid, by reason of a defeotive or insufficient specification, or by reason of the patentee claim- ing as his own invention or discovery more than he had a right to claiui as new, if the error has arisen by inadvertence, accident, or mistake, and without any fraudulent or decep- tive 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 acoord- ance with the corrected specification, to be issued." Section 4916. �The most natural construction of this law would, perhaps, be, that if a patent should be inoperative by reason of a defeot- ive specification, or invalid for claiming too much, the defeot might be supplied, or the excessive claim be reduced by re- issue. But the courts have given a very different interpreta- tion — much wider in most respects, and narrower in only one. They do not permit a defeotive specification to be supplied, ■excepting from the drawiugs or model; but they do per- mit the claim to be varied, provided the same invention is See S. C, 5 Fed. Rep. 197. ��� �