12. Of the examination. As has been already observed, our law provides for an examination whenever an application is com pleted in the prescribed manner. And if on such examination it appears that the claim g the applicant is invalid and would not be sustained by the oourts, the application is rejected. In cases of doubt, however, the approved practice of the patent office ie to grant the patent, and thus give the party an opportunity to sustain it in the courts if he can. Forimerly, about two-thirds of all the applications for patents were rejected ; but within the last few years a imore liberal practice prevails, and the number of patents now issued is more than one-half of that of all the applications.
As a general rule, an invention is patent able whenever the applicant is shown to be the original and first inventor ; and his own affidavit appended to the application is suf ficient to raise a presumption that he is the first inventor, until the contrary is shown. But if it is ascertained by the office that the same thing had been invented by any other person in this country, or that it bad been patented or described in any printed publica tion in this or any foreign country, prior to its invention by the applicant, a patent will be denied him. But a mere prior invention of the same thing in a foreign country, if not patented or described in some printed publication, will not affect his right to a patent here.
13. The rq,le that the applicant is entitled to a patent whenever he le shown to be the .original and first inventor is subject to one important exception. If he has, either actu ally or constructively, abandoned his inven tion to the public, he can never afterwards recall it and resume his right of ownership. 4 Mas. C. C. 111 ; 4 Wash. C. C. 544; 2 Pet. 16 ; 6 id. 248 ; id. 313 ; 1 How. 202.
By the seventh section of the act of 1836, the commissioner is directed to reject the application whenever it shall appear that the invention had been in public use or on sale, with the consent and allowance of the appli cant, prior to the date of the application. But by the seventh section of the act of 1839, such sale or public use will not of itself prejudice the rights of the inventor, provided the. application is made within two years from the time when such sale or public use first occurred.
If the application for a patent is rejected, the specification may be amended and a second examination requested. If again re
jected, an appeal may be taken to the ex aminers-in-chief. If rejected by them, aro appeal lies to the commissioner in person, on payment of a fee of twenty dollars ; and if rejected by him, an appeal may be taken to one of the judges of the supreme court of the District of Columbia, on payment of a fee of twenty-five dollars. If all this proves ineffectual, the applicant may still file a bill in equity to compel the allowance of his patent. See 16 of the Act of July 4, 1836, and 10 of the Act of March 3, 1839.
All the proceedings before the patent office connected with the application fbr a patent are ex parte, and are kept secret, except in cases of conflicting claims, which will next be referred to.
14. Of the date of the patent. The patent usually fakes date on the day it issues ; but the applicant may, at his option, cause it tt be dated as of the day on which his specifica. tion and drawings were filed,—not, however, exceeding six months prior to the actual issuing of the patent. See 8 of the Act of July 4, 1836. This is a privilege of which inventors rarely avail themselves. Or thE patent may be dated as of a day not latei than six months after its allowance. See 3 of the 'Act of March 3, 1863.
The obtaining of foreign letters patent does not prevent the granting of a patent here. But in that case the American patent will expire a,t the end of fourteen years from the date of the foreign patent. See 6 of the Act of March 3, 1839. This limit was thus fixed when the American patent waE of only fourteen years' duration : its eaten. sion to seventeen years does not seem to en. large this limitation. If the American pat. ent purports to continue more than fourteen years from the date of the foreign patent, it will be void. 5 McLean, C. C. 76.
15. Of interferences. The eighth section of the act of 1836 provides that when an application is made which interferes with another pending application or with an un expired patent, a trial shall be allowed for the purpose of determining who was the prior inventor, and a patent is directed to be issued accordingly. An appeal to one of the judges of the supreme court of the District of Columbia is allowed from the decision of the patent office in these cases, in the same manner as in those of rejected applications.