equity, that there has been unreasonable delay or neglect to file a disclaimer where one is necessary. (Wythe v. Stone, 1 Story, 295; Reed v. Cutler, ib., 600; Brooks v. Bicknell, 3 McLean, 449; Hotchkiss v. Oliver, 5 Denio, 318; Parker v. Stiles, 5 McLean, 56.)

What is "unreasonable delay" in filing a disclaimer is a mixed question of law and fact, to be decided under the direction of the court.) Brooks v. Bicknell, 3 McLean, 449.) It is a question of law for the court. (Seymour v. McCormick, 19 How., 106; Singer v. Walmsley -.) The time in reference to the question of delay commences from when knowledge is brought home to the party that he is not the first inventor, or a court of competent jurisdiction has declared him not to be one. (Singer v. Walmsley,-) Whether a disclaimer has been filed before or after the suit is brought, the plaintiff will not be entitled to the benefit thereof if he has unreasonably neglected or delayed to file it in the Patent Office. But such an unreasonable neglect or delay will constitute a good defense to the suit. (Reed v. Cutler, 1 Story, 600.) The question of delay in entering a disclaimer goes to the right of action, and if the jury are satisfied that there has been unreasonable negligence on the part of the patentee in making a disclaimer, then the whole patent is inoperative. (Hall v. Wiles, 2 Blatchf., 198; McCormick v. Seymour, 3 Blatchf., 222.)

421. EFFECT OF DISCLAIMER.-The disclaimer mentioned in § 7 of the act of 1837 (vide supra, p. 23, § 54) applies solely to suits pending when the disclaimer is filed, and the disclaimer mentioned in § 9 of the same act (vide supra, p. 27, § 60) applies solely to suits brought after such disclaimer is filed. (Wythe v. Stone, 1 Story,

294.) If filed before the suit is brought, and the plaintiff establish on trial that a part of his invention not disclaimed has been infringed, he will be entitled to costs, (Reed v. Cutler, 1 Story, 600;) but if he omits to disclaim, and it appears on trial that he is entitled to be protected in a portion of his claims, but not in respect to another portion, he is still entitled to damages for the infringėment of the valid portion, but is not entitled to costs, (McCormick v. Seymour, 3 Blatchf., 222;) and a disclaimer will not affect any action pending at the time of filing it, except in respect to the question of unreasonable neglect or delay. (Guyon v. Serrill, 1 Blatchf., 245.)

In the case of Aiken v. Dolan the complainant filed a bill in equity to restrain the defendant from infringing letters patent for "improvement in knitting needles."

Mr. Justice Cadwalader, delivering the opinion of the court, said: "By a proper disclaimer of the invention of latch needles without any such curvature the patent would, however, be sustainable for the actual improvement. The complainant proposes, through his counsel, to disclaim any construction of a latch needle which has not a swell, or its equivalent, substantially as shown in the drawings; and to repeat, in the words of the original specification, that what he claims as the invention of the patentee is the operation of the latch or tongue, &c., operated as therein described. The effect of such a disclaimer will be to deprive the complainant of all right to recover costs in the present suit. But a court of equity sometimes considers that which might and ought to be done as having already been done. There may, therefore, be a decree for a perpetual injunction, each party to pay his own costs, without any actual proof of record in the

Patent Office. According to the decision of the Supreme Court in O'Reilly v. Morse, (15 How., 121,) it might perhaps be supposed that I should go further, and, before any actual disclaimer, decree an account or order an issue quantum damnificatus. But I do not think that a court whose decision is liable to reversion, on appeal, should in such case make any decree beyond the perpetual injunction without an actual disclaimer, previously recorded in the Patent Office. In the present stage of the case, therefore, I can do no more than award the injunction with leave to disclaim, and afterward to move for such further order for an account, &c., as may be deemed proper." (3 Fish., 207.)

422. FORM OF DISCLAIMER.

To the Commissioner of Patents:

Your petitioner, Ichabod Willis, of St. Louis, county of St. Louis, and State of Missouri, represents that he has, by grant duly recorded in the United States Patent Office, (liber- p.,) become the owner of an exclusive right within and for the several States of Maine, New Hampshire, and Vermont, to make, use, and vend to others to be used, a certain improved mechanical movement, for which letters patent of the United States were granted to Jeremiah Ingersoll, of Albany, in the county of Albany and State of New York, April 1, 1869; that he has reason to believe that, through inadvertence, accident, or mistake, the specification and claim of said letters patent are too broad, including that of which said patentee was not the first inventor. Your petitioner, therefore, hereby enters his disclaimer to that part of the claim in said specification which is in the following words, to wit:

"I also claim the sleeves A B, having each a friction cam C, and connected, respectively, by means of chains or cords, K L and M N, with an oscillatory lever, to operate substantially as herein shown and described." ICHABOD WILLIS.

Witness: HENRY OAKLAND.

SEC.

XXIV. The Patent.

SEC.

423. Issuing, signing, and recording. 425. Date. 424. Contents and grant.

426. Form of patent.

423. ISSUING, SIGNING, AND RECORDING.-All patents shall be issued in the name of the United States of America, under the seal of the Patent Office, and shall be signed by the Secretary of the Interior and countersigned by the Commissioner, and they shall be recorded, together with the specification, in said office, in books to be kept for that purpose. (Act of July 8, 1870, § 21.) 424. CONTENTS AND GRANT.-Every patent shall contain a short title or description of the invention or discovery, correctly indicating its nature and design, and a grant to the patentee, his heirs or assigns, for the term of seventeen years, of the exclusive right to make, use, and vend the said invention or discovery throughout the United States and the Territories thereof, referring to the specification for the particulars thereof; and a copy of said specifications and of the drawings shall be annexed to the patent and be a part thereof. (Ib., § 22.)

425. DATE.-Every patent shall date as of a day not later than six months from the time at which it was passed and allowed and notice thereof was sent to the applicant or his agent; and if the final fee shall not be paid within that period, the patent shall be withheld. (Ib., § 23.) 426. FORM OF PATENT.

first inventor or discoverer of the said

—, and that the same hath not

to knowledge and belief been previously known or used; into the Treasury of the United States the sum of

ha- paid

dollars, and

presented a petition to the Commissioner of Patents praying that a patent may be issued therefor.

These are therefore to grant to the said administrators, or assigns, for the term of

his

executors,

years from the day of the full and exclusive right

and liberty of making, using, and vending to others to be used, the said a description whereof is given in the annexed schedule, and made a part of these presents.

In testimony whereof I have caused these letters to be made patent and the seal of the Patent Office to be hereunto affixed. Given under

[SEAL.] my hand at the of city Washington, this

in

day of

and

the year of our Lord one thousand eight hundred and
of the independence of the United States of America the

427. ALL FEES TO BE PAID IN ADVANCE.-Nearly all the fees payable to the Patent Office are positively required by law to be paid in advance, that is, upon making application for any action by the office for which a fee is payable. For the sake of uniformity and convenience, the remaining fees will be required to be paid in the same manner. (Patent Office Rules, July, 1870.)