The abandonment extends only to the exact invention publicly used or Sold ; Henry v. Soap-Stone Co., 2 Fed. 78.
Where, for eight years after rejection of an application, the applicant, without ex cuse, omits to reinstate it, meantime other patents issuing, he is taken to have abandon ed his invention; U. S. Rifle & Cartridge Co. v. Arms Co., 118 U. S. 22, 6 Sup. Ct. 950, 30 L. Ed. 53; but a delay of 13 years in the patent office was held, under the circum stances, not to invalidate a patent; U. S. v. Telephone Co., 167 U. S. 225, 17 Sup. Ct. 809, 42 L. Ed. 144.
By act of March 3, 1897, it is provided that the failure to apply for a patent in this country for more than seven months (by act of March 3, 1903, changed to twelve months) after the inventor's application in a foreign country, bars the patent. And, by the same act, a failure to complete an application and prepare it for examination within one year after its filing, and a failure to prosecute the same within one year after action in the office, of which notice shall have been given, works an abandonment, unless the commis sioner be satisfied that the delay was un avoidable.
If the application or any claim is reject ed, the specification •or the claim may be amended and a second examination request ed. If again rejected, an appeal may be taken to the examiners-in-chief. If rejected by them, an appeal lies to the commissioner ; and if rejected by him, an appeal may be taken to the court of appeals of the District of Columbia, upon notice to the commission er, and filing the reasons of appeal in writ ing. Whenever a patent is refused, either by the commissioner or the supreme court, the applicant has a remedy by a bill in equity, and if the court so adjudge, he shall receive a patent.
All the proceedings before the patent of fice connected with the application for a patent are ex parte, and are kept secret, except in eases of conflicting claims, which will be referred to below.
Of the date of the patent. The patent usually takes date on the day it issues; and the final fee of twenty dollars must be paid not later than six months from the date of allowance.
The date of the application and not the date of the patent, controls in determining the legal effect to be given to two patents issued at different dates to the same inven tor, and the order in which they are to be considered; The Barbed Wire Patent, 143 U. S.. 275, 12 Sup. Ct. 443, 450, 36 L. Ed. 154. Where two patents issue on the same day, the earlier numbered patent will be senior, there being no other evidence of seniority; Crown Cork & Seal Co. v. Stopper Co., 136 Fed. 841, 69 C. C. A. 200.
Of two patents to the same person the one first numbered takes precedence, except where the patentee had an application pend ing for the second when the first was issued, and especially when the two are the result of splitting an application, in which latter case they are to be treated as a single pat ent ; Benjamin Electric Mfg. Co. v. Dall Co., 158 Fed. 617, 85 C. C. A. 439.
The conception of en invention consists in the complete performance of the men tal part of the inventive act. While this in theory necessarily precedes the physical reduction to practice, it in fact also em braces whatever of thought and skill the inventor may have exercised in bringing the invention to that point where reduction to practice can begin ; Rob. Pat. § 376; and the date of the conception is the date when the idea of means, including all the essential attributes of the invention, becomes so clear ly defined in the mind of the inventor as to be capable of exterior expression; Rob. Pat. § 80. The true date of invention is at the point where the work of the inventor ceases and the work of the mechanic begins; 18 0. G. 520.
The one who first conceives the inven tion, and is diligent to reduce it to practice is entitled to a patent in preference to one who conceives it subsequently, although the latter may have been the first to render the invention available for public use; Rob. Pat. § 383.