Page:United States Statutes at Large Volume 1.djvu/443

 President of the United States, reciting the allegations and suggestions of the said petition, and giving a short description of the said invention or discovery, and thereupon granting to such petitioner, or petitioners, his, her, or their heirs, administrators or assigns, for a term not exceeding fourteen years, the full and exclusive right and liberty of making, constructing, using, and vending to others to be used, the said invention or discovery, which letters patent shall be delivered to the Attorney General of the United States, to be examined; who, within fifteen days after such delivery, if he finds the same conformable to this act, shall certify accordingly, at the foot thereof, and return the same to the Secretary of State, who shall present the letters patent thus certified, to be signed, and shall cause the seal of the United States to be thereto affixed: and the same shall be good and available to the grantee or grantees, by force of this act, and shall be recorded in a book, to be kept for that purpose, in the office of the Secretary of State, and delivered to the patentee or his order.

. Provided always, and be it further enacted, That any person, who shall have discovered an improvement in the principle of any machine, or in the process of any composition of matter, which shall have been patented, and shall have obtained a patent for such improvement, he shall not be at liberty to make, use or vend the original discovery, nor shall the first inventor be at liberty to use the improvement: And it is hereby enacted and declared, that simply changing the form or the proportions of any machine, or composition of matter, in any degree, shall not be deemed a discovery.

. And be it further enacted, That every inventor, before he can receive a patent, shall swear or affirm, that he does verily believe, that he is the true inventor or discoverer of the art, machine, or improvement, for which he solicits a patent, which oath or affirmation may be made before any person authorized to administer oaths, and shall deliver a written description of his invention, and of the manner of using, or process of compounding the same, in such full, clear and exact terms, as to distinguish the same from all other things before known, and to enable any person skilled in the art or science, of which it is a branch, or with which it is most nearly connected, to make, compound, and use the same. And in the case of any machine, he shall fully explain the principle, and the several modes in which he has contemplated the that the court possesses the power, which will be exercised, to prevent the plaintiff being injured by surprise. Evans v. Eaton, 3 Wheat. 454; 4 Cond. Rep. 291.

It is no objection to the competency of a witness in a patent cause that he is sued in another action for the infringement of the patent. Evans v. Hettich, 7 Wheat. 453; 5 Cond. Rep. 317.

The sixth section of the patent act does not enumerate all the defences of which the defendant may legally avail himself: He may give in evidence that he never did the act attributed to him: that the patentee is an alien, not entitled under the act; or that he has a license or authority from the patentee. Whittemore v. Cutter, 1 Gallis. C. C. R. 436.

It is a presumption of law, that where a patent and the specifications and drawings have been recorded in the patent office, every person who takes out a patent for a similar machine has a knowledge of the preceding patent. Odiorne v. Winkley, 2 Gallis. C. C. R. 51; Stearnes v. Barrett, 1 Mason’s C. C. R. 153; Kneas v. The Schuylkill Bank, 4 Wash. C. C. R. 106.

There is no limitation to the ground on which the defendant, under the general issue may give in evidence that the patentee was not the original inventor. Evans v. Eaton, Peters’ C. C. R. 322.

Surrender and Repeal of Patents.—The holder of a defective patent may surrender it to the department of state, and obtain a new one, which shall have relation to the emanation of the first. Shaw v. Cooper, 7 Peters 292.

The great object and intention of the act granting patents for useful inventions is to secure to the public the advantage to be derived from the discoveries of individuals, and the means it employs are the compensation to those individuals for the time or labour devoted to those discoveries, by the exclusive right to make and sell the thing discovered for a limited time. Grant v. Raymond, 6 Peters, 218.

One who has patented his invention cannot take out a new patent for the same invention until the first is surrendered, repealed, or declared void. Morris v. Huntington, Paine’s C. C. R. 348.

The obstacle of an invalid patent may be removed by having it declared void after a verdict against it, or by having a vacatur entered, exparte, in the office of the Secretary of State, on a surrender of the patent. But the provisions of the sixth section of the act do not enable a patentee to declare his own patent void; and a verdict in a suit on the second patent in favour of such patent does not avoid the first patent. Ibid.