16. Of the specification. The specifica tion is required, by the Act of 1836, 6, to describe the invention in such full, clear, and exact terms as to enable any person skilled in the art or science to which it relates to make, construct, or use it. In the trial of an action for infringement, it is a question of fact for the jury whether this requirement has been complied with. 2 Brock, Va. 298 ; 1 Mas. C. C. 182 ; 2 Stor. C. C. 432 ; 3 id. 122 ; 1 Woodb. & M. C. C. 53. At the same time, the interpretation of the specification, and the ascertainment of tbe subject-matter of the invention from the language of the specification and from the drawings, is, as appears from the authorities just referred to, as well as from others, a matter of law exclusively for the court. 5 How. 1 ; 3 Mc Lean, C. C. 250, 432. The specification will bo liberally construed by the court, in order to sustain the invention, 1 Sumn. C. C. 482 ; 3 id. 514, 535 ; 1 Stor. C. C. 270; 5 McLean, C. C. 44 ; but' it must, nevertheless, identify with reasonable clearness and accuracy the invention claimed, and describe the manner of its construction and use so that the public from the specification alone may be enabled to practise it ; and if the court cannot satis factorily ascertain the meaning of the patent from its face, it will be void for ambiguity.
2 Blatchf, C. C. 1 ; 2 Brock, Va. 303; 1 Sumii.
C. 482 ; 1 Mas. C. C. 182, 447.
It is required to distinguish between what is new and what is old, and not mix them up together without disclosing distinctly that for which the patent is granted. 4 Wash. C. C. 68 ; 2 Brock, Va. 298 ; 1 Stor. C. C. 273 ; 1 Mas. C. C. 188, 475 ; 1 Gall. C. C. 438, 478 ; 2 id. 51 ; 1 Sumn. C. C. 482 ; 3 Wheat. 534 ; 7 id. 356. If the invention consists of an improvement, the patent should be confined thereto, and should clearly distinguish the improvement from the prior machine, so as to show that the former only is claimed. 1 Gall. C. C. 438, 478 ; 2 ic/. 51 ; 1 Mae. C. C. 447 ; 3 McLean, C. C. 250. Ambiguous terms should be avoided ; nothing material to the use of the invention should he omitted; and the necessity of trials and experiments should not be thrown upon the public.
17. Of re-issues. It often happens that errors, defects, and mistakes oc.cur in the specification of a patent, by -which it is rendered wholly or partially inoperative and perhaps invalid. To provide a remedy in such cases, the thirteenth section of the act of 1836 declares that when such errors or defects are the result of inadvertency, ac cident, or mistake, without any fraudulent or deceptive intention, the patent may be surrendered by the patentee, his executors, administrators, or assigns, and a new patent -issued in proper shape to secure the real invention ifitended to be patented originally.
The identity between ihe invention described in the re-issued and that in the original pEa ent is a question of fact for the jury. 4 How. 380. But see Burr vs. Duryea, 1 Wal lace, 531.
' A re-issued patent is to have the same effect and operation in law, on the trial of all actions for causes subsequently accruing, as though the patent had been originally issued in such corrected form. See Act of' 1836, I 13. From this it appears that after a re-issue no action can be brought for a past infringe ment of the patent, unless the act would have been an infringement of the patent as it stood previous to the re-issue. But, as the bare use of a patented machine is (if unauthorized) an infringement of the rights of tbe patentee, a machine constructed and lawfully used prior to the re-issue may be an infringement of the patent if used afterwards. The re-issued patent will expire when the original patent would have expired. The patent fee in cases of re-issue is thirty dollars.
For the principles applicable to a surrender and re-issue, and the extent to which the action of the commissioner of patents is con clusive, see 2 McLean, C. C. 35; 2 Stor. C. C. 432; 3 id. 749; 4 How. 380, 646; 15 id. 112 ; 17 id. 74; 6 Pot. 218 ; 7 id. 202; 1 Woodh. 86 M. C. C. 248 ; 2 id. 121. The re-issued patent is not a new patent; and an existing contract concerning the patent before its sur render applies equally to it after the surren der and re-issue. 11 Cush. Mass. 569.
113. Of patents for designs. The act of 1861 permits any citizen, or any alien who has resided one year in the United States and has taken his oath of intention to become a citizen, to obtain a patent for a design, which shall contipue in force for three and a half, seven, or fourteen years, at the option of the applicant, upon the payment of a fee of ten, fifteen or thirty dollars, according to the length' of the patent obtained. These pat ents are granted wherever the applicant, by his own industry, genius, efforts, and expense, may have invented or produced any new and original design for a manufacture, whether of metal or other material or materials, any original design for a bust, statue, or bas-re lief, or composition in alto or basso relievo, or any new and original impression or ornament, or to be placed on any article of manufacture, the same being formed- in marble or other material, or any new and useful pattern, or print, or picture to be either worked into or worked on, or printed, or painted, or cast, or otherwise fixed, on any article of manufacture, or any new and original shape or configuration of any article of manufacture, not known or used by others before his, her, or their inven tion or production thereof, and prior to the time of his, her, or their application for a patent therefor.