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The field for enterprise in this respect is so large, that it behoves the inventor, who is not satisfied with the protection afforded him at home, to consider well the countries in which his invention is likely to come into use, and also his own personal prospects of pushing his invention abroad.
It is well known that a very large sum of money is annually spent upon foreign patents without the slightest return; and this arises, not so much from the fact that the inventions patented abroad are not of value or suited to the requirements of the countries in which they are patented, but that the inventors having once obtained patents, do not attend to the requirements of the several states as to the acts to be done and duties paid, and do not take the trouble to obtain a commercial introduction of their inventions, but seem to think, contrary to general experience, that nothing more than the possession of the patent is requisite for the purpose of obtaining a return for the invention.
There are many rules with respect to foreign patents which differ from our British regulations: for instance, it is nearly universally necessary that the inventor should himself apply for the patent, and that the inventions patented should be put into practice within a certain definite period from the grant, and should continue in use year by year during the term. Annual and other duties have to be paid, and in some states the patented articles must be made in the country itself, and cannot be imported. It should also be borne in mind that in many foreign states publication at home is a bar to obtaining a patent afterwards; also that the patent
for an imported invention expires with the determination of the grant in that country from which the invention has been imported.
The recent International Convention on patents is printed on page 462 of this appendix, and it will be found to make the following important alterations as to patents taken out by subjects of the several States who are parties to it. First, that the subjects of the several States enjoy in all other States the advantages that their respective laws grant to them as subjects. Second, any person who has registered an application for a patent in any one of the States enjoys a right of priority protecting the first patentee against any acts accomplished in the interval, for a term of six months, a month longer being allowed for countries beyond the sea. Third, the introduction by the patentee into the country where the patent has been granted of objects manufactured in any of the other States does not entail forfeiture, but the patentee must work his patent in conformity with the laws of the country into which he introduces the patented object. Fourth, the several States agree to grant temporary protection to patentable inventions for articles appearing at officially recognised International Exhibitions.
The following summaries of Foreign Patent Laws have been carefully revised by patent agents and lawyers practising in the respective States.
UNITED STATES OF AMERICA.
The existing laws of patents in the United States, comprising various Acts of Congress passed from time to time, have been collected and embodied in the Revised Statutes, approved June 4, 1874. There is now no difference in fees paid by citizens and foreigners.
Probably in no country in the world are the rights of inventors more cherished than in the United States, and the number of patents issued there annually far exceeds that granted in any other country.
The facilities for obtaining patents have been largely increased of late years, and no application for an invention possessing any features of novelty and utility is refused, if perseveringly and skilfully prosecuted.
The following particulars will be found, we believe, to give all the information an inventor can require as to the patent laws in the United States :
Every original and first inventor, whether native or foreign, may obtain a patent for his invention, provided only it has not been in public use or on sale in the United States for more than two years previously to his application. The application must be in the name of and executed by, the inventor himself, and must be confined strictly to a single invention.
Patentable invention includes new and useful arts, new machines and implements, new chemical compounds, and new manufactures, but mere applications involving no new results cannot be patented.
By executing and recording in the Patent Office an assignment, the patent may be issued to an assignee.
The petition to the Commissioner of Patents must be accompanied by the first fee of 15 dollars, a specification fully explaining the nature of the invention and the best mode contemplated of carrying the same into effect; drawings, if the invention be susceptible of such illustration, and on oath in the prescribed form. The requirement of a model is now practically abolished, being only insisted on in cases where, by reason of its complicated nature, the invention cannot be understood without such aid.
The prosecution of cases before the United States Patent Office is conducted under a complex system of rules, constantly revised by the Secretary of the Interior and Commissioner of Patents, which renders such prosecution difficult and uncertain, and requires the exercise of great care and skill on the part of applicants and their attorneys.
In the order of their filing applications are taken up for examination by one of a corps of twenty-five skilled examiners, each of whom has under him four assistants and a number of clerks. Precedence is given to applications for inventions that have been patented abroad.
A thorough investigation is then conducted to ascertain the novelty of the invention claimed, the search extending through domestic and foreign patents, and the scientific and industrial publications of different countries bearing on the invention under examination.
If the invention is found to be wholly or partly wanting in novelty, or if the application includes more than one invention, or if any formal defects are discovered, the application is rejected, the reasons therefor being clearly pointed out.
The application may be again presented, either with or without amendment, and a reconsideration obtained. If the applicant is dissatisfied with the final action of the examiner he may appeal upon the points of disagreement to the Board of Examiners-in-Chief. From their decision appeal lies to the Commissioner of Patents in person, and from his to the supreme court of the district of Columbia. For such appeals additional fees are required.
It often happens that two or more applicants before the Patent Office claim the same invention, or that an applicant claims to be the prior inventor of a thing already patented to another. In such case the commissioner declares an interference, which is a proceeding (somewhat analogous to a suit in chancery) to determine which of the rival claimants is in law the prior inventor of the thing in dispute. This question is determined, from proofs taken in writing, in the first instance by the Examiner of Interferences. Appeals may be taken the same as in uncontested cases, except that no appeal lies to the supreme court of the district.
Provision is made by law for the reissue of a patent in case of an insufficient or defective specification, or where the patentee has claimed more than is new. Owing to abuse of this privilege, whereby patents have been unduly expanded and made to cover different inventions from that originally patented, the courts have of late years been very severe in dealing with reissued patents, invariably declaring invalid all those that appear to have been unwarrantably broadened in scope. For this reason reissues are now looked upon with distrust and disfavour, and it becomes of great importance to the inventor that his patent should be taken out in the first instance in such shape as to fully protect the invention, thus avoiding the necessity of a reissue.
The protection afforded by caveats is now generally regarded as of little importance, and is seldom sought. The protection was practicall: only open to citizens.
All patents are issued for a term of seventeen years, unless the invention has been previously patented abroad, in which case the patent is limited to expire with the foreign patent, or if there be more than one, with that having the shortest term. Under this provision an inventor suffers great disadvantage by delaying his United States application. The practice prevails in America, when an invention is to be patented in several countries, to first file the United States application and prosecute it to allowance. The day for issue of the patent can then be definitely fixed, and the patents in other countries are so obtained as to bear the same date with the United States patent. By this simultaneous issue the inventor may enjoy the full term of all his patents. This course of proceeding is not, however, possible in the case of foreign inventors where the inventor naturally applies for the home patent as being of most consequence to him in the first instance.
Upon allowance of a patent the final fee of 20 dollars must be paid.
Applications not prosecuted for two years become abandoned.
No prolongations of patents can be obtained except by special Act of Congress. Improvements upon the original invention must be protected by new patents.
After issue of the patent there are no further taxes required, and no conditions imposed upon the inventor as to working of his invention, &c.
As the novelty of a patented invention has been established by the Commissioner of Patents after a searching investigation, the presumption of law is that the patent is valid, and the courts will so construe it as to sustain it if possible.
Patents will, however, be declared void
1. If the specification was made misleading for the purpose of deceiving the public.