The general method of making the ap plication is the same as has been herein before described, and the patent issues in a similar form.
The use of a design or colorable imita tion thereof on any article of manufacture or the sale of any article to which the same shall have been applied, knowing that it has been so applied, renders the party liable to pay $250 or the profits in excess of that amount, and this may be recovered at law or iu equity.
Of disclaimers. R. S. § 4922 provides that the plaintiff in a suit for infringement may disclaim so much of his patent as is in ex cess of his real invention and thus recover damages for the injury he has really sus tained. Sec. 4917 provides for the filing in the patent office of a disclaimer of either a separate claim or some distinct and separate matter which can be exscinded without mutilating or changing what is left. These two sections are part of one law having one general purpose and both relate to a case in which a patentee, through inadvertence, ac cident, or mistake, and without any fraud ulent intention, has included in his claim and in his patent, inventions to which he is not entitled, and which are clearly dis tinguishable from those to which he is en titled. The purpose of § 4917 is to authorize him to file a disclaimer to the part to which he is not entitled and of § 4922 is to legalize the suit on the patent mentioned in the- sec tion, and to the extent to which the patentee can rightfully claim the patented inven tion ; Hailes v. Stove Co., 123 U. S. 582, 8' Sup. Ct. 262, 31 L. Ed. 284.
Delay in a disclaimer under § 4917 goes only to the question of costs; Sessions v. Romadka, 145 U. S. 29, 12 Sup. Ct. 799, 36 L. Ed. 609.
No person can avail himself of the bene fits of this provision who has unreasonably neglected or delayed to enter his disclaimer. A disclaimer by one owner will not affect the interest of any other owner.
A disclaimer cannot be used to change the character of the invention; Collins Co. v. Coes, 130 U. S. 56, 9 Sup. Ct. 514, 32 L. Ed. 858.
A disclaimer of an 'unnecessary or inad vertent statement in the specification may be entered in an infringement suit, when, if retained, they might illegally broaden the claim; Carnegie Steel Co. v. Iron Co., 185 U.
S. 403, 22 Sup. Ct. 698, 46 L. Ed. 968; or to limit the patent to the actual invention ; Sim plex Ry. Appliance Co. v. Car Co., 189 Fed.
70, 110 C. C. A. 634, affirmed in Pressed Steel Car Co. v. Appliance Co., 223 U. S. 721, 32 Sup. Ct. 523, 56 L. Ed. 630. Where some claims are held invalid, a disclaimer must be filed thereto before obtaining an injunc tion as to sustained claims ; F. D. Cummer & Son Co. v. Dryer Co., 193 Fed. 993, 113 C. C. A. 611.
After an action in equity for the infringe ment of letters patent has been heard and decided upon its merits, the plaintiff cannot file a disclaimer in court, or introduce new evidence upon that or any other subject, ex cept at a rehearing granted by the court up on such terms as it thinks fit to impose; Roemer v. Bernheim, 132 U. S. 103, 10 Sup. Ct. 12, 33 L. Ed. 277.
Of the extension, of a patent. See EXTEN SION OF PATENTS.
Of the repeal of letters patent. The Unit ed States may sue in equity for the repeal of a patent obtained by fraud; U. S. v. Tele phone Co., 128 U. S. 315, 9 Sup. Ct. 90, 32 L. Ed. 450; the power rests with the courts alone; Mica Insulator Co. v. Mica Co., 166 Fed. 440, 92 C. C. A. 292; a bill in equity to repeal two patents for the same subject matter and to the same party is not multi farious ; U. S. v. Telephone Co., 128 U. S. 315, 9 Sup. Ct. 90, 32 L. Ed. 450.
R. S. § 4918 provides that any person in terested in one or more interfering patents may bring his bill in equity against the own er of the adverse patent, upon which the court may declare either of the patents void in whole or part, or inoperative, or invalid in any particular part of the United States. The judgment rendeied affects only the par ties or those taking under them.
Suits may be maintained by the govern ment in its own courts to set aside one of its own patents, not only when it has a pro prietary and pecuniary interest in the result, but also when it is necessary in order to en able it to discharge its obligations to the public, and sometimes when the purpose and effect are merely to enforce the rights of an individual. In a suit between individuals to set aside an instrument for a fraud, the testimony must be clear, unequivocal, and convincing and more than a bare preponder ance of evidence is required. This is much more so when the government attempts to set aside its solemn patent ; U. S. v. Tele phone Co., 167 U. S. 224, 17 Sup. Ct. 809, 42 L. Ed. 144.