The republic. [volume] (Washington [D.C.]) 1849-1853, 1853-02-25
TIL 3 r e 2 IT BLIC.

+ COMMISSIONER
Wednesday. February %. 1858, upo,, the Petition
/ at Charles Goodyear and Nathaniel Hay,card TO,
| the extension of Patent.
One ofthe petitioners, Nathaniel Hayward, hav-
ing discovered an important improvement in the
manufacture of India-rubber as he altered. filed
in this Office an application for patent to protect
It. Pending the application he executed an as
signment of his interest to Charles GOODYEAR. the
| other petitioner, and requested that the patent
might be issued to him. Accordingly the Patent
Office issued to Goodyear patent for the supposed
invention, bearing date the oath day of February,
| 1888, and running fourteen years. AS the period
| was about to expire, Goodyear and HAYWARD
united in the present petition and prayed that the
patent might be extended for the term of seven
| years for the benefit of the said HAYWARD day
was appointed for hearing the petition, and notice
oilt published, is usual and before il arrived six
| different parties appeared and filed their reasons
against the extension. Among these opponents
was Horace H. Day, who appears somewhat proni-
Fnently among the proceedings noticed on the hear
ing The others it is unnecessary to name The
parties proceeded to take testimony and by the
day appointed had filed dispositions taken for the
| occasion, and other documents, amounting in all
to several thousand pages, and including the ex-
| hlblts and records in large number of cults in
stituted by Goodyear upon this and other patents.
and growing out of them. In view of the immense
bulk of this testimony, the importance of the oues
| tons involved, and the interests which were at
x
l of the Office, and hear oral argument This was
commenced upon the I'd day of February and
continued through six days. The questions arising
| in the case were certainly discussed with great
ability; but the expectation of saving time was so
far from being fulfilled, to afford but slight en-
couragement for repeating the experiment
| The first objection in order urged by the oppo.
nents derives its chief title to notice from the zeal
| and confidence which brought it forward. They
commended that Mr.. Judson. who signed the name
OF Goodyear to the petition his attorney in fact
acted without instructions and that there was con-
sequenty fatal defect of parties before the Conn
missioner. 1t is true that no written authority
was produced for Judson's affixing Goodyearis
name, and also true that this Office requires the pro-
duction of such an authority in some cases before
/ 1t will recognise an agent There is no rule how
ever, which binds it to require, as courts have
| sometimes done, power of attorney on all occa-
sions, any more than the merchant W ho insists on
written orders in some instances is bound there
fore to dlscredIt every man who processes to be
acting for another, and for his benefit because he
can produce none. Some discretion must be al
/ lowed in this matter. Judsou has been long init
mateiy connected with Goodyear in business, and
| produces the patent issued to him. He would at
law be presumed to act for him if the extension is
| for Goodyear's benefit If it is for Hayward's
Goodyear would probably be compelled in chan
Gerry to allow his name to be used Isee no reason
therefore why Judson's power should be doubted
and cannot entertain the idea of defeating Hay
wards claim entirely (for such would be the result
of dismissng the pettion) upon objection which
a
ceeding, under the most stringent practice else
where. has
The next objection presents a question far more
grave in its character and more difficult of deci-
sion. The authority of the Commissioner to pro.
coed in this case is denied, upon the ground that
the patent can be extended only to the assignee;
while it has been frequently decided that the ben
eft of the extension belongs to the inventor alone.
1t 10 true, that the 18th section of the act of 1885,
upon which this proceeding is founded, uses
throughout the word 'fpatentee,' and nowhere
mentions the inventor go 'lonife the person to
whom the extension is to be made; and this defect,
II 1t be one, has not been remedied by any subse-
quent enactment 1t is also provided that the pa
tent, when extended, shall have the same effect as
If it had been originally granted for the term of
twenty one years; from which it is argued that
the assignee alone can have the benefit of the addi
tiona term; and that such an absurdity could not
have been contemplated by the Legislature. 1t is
further asked, how the assignee in such case can
be compelled to execute the trust arising from the
extension being made in form to him? And, in
fine, decision of the Board originally instituted
for the purpose of extending patents, we'll the
former action of this Office are cited conclusive
upon this subject. AS the proceedings thus ad-
verted to do not appear in print, propose to state
them succinctly
The first of these cases originated in the appli
cation of John Thomas for the renewal of patent
which he alleged to have been granted to him on
the 26th day of March, 1884, for improvements in
floating dry, docks. Opposition being made, it
appeared, upon the hearing. that Thomas had sold
the patent was in fact issued. There was evidence
also that he had already received large sums on
account Of the invention; had sold it to different
persons, and disposed of the right of exenson and
that the purchasers were opposed to the proceed
ing 1t will be remembered that the Patent Office
was consumed by fire in December, 1886; SO that
the fact of the assignment to Wash and Others and
the issuing of the patent to them, not to be
certained at the office, and was only elucidated
upon the coming in of the testimony. 1t is not
surprising that Thomas should, under such cir.
cumstances, be suspected of attempting to impose
upon the Board of Extension, which consisted OF
the Secretary of State, then the Hon. James Blu. 4
chanan, the Commissioner of Patents, the Hon.
Edmund Burke, and the Attorney General, the
Hon. r. H. Gilett However that may be, on the
22d March, lS4S, the Board decided in terms that
sthe applicant having assigned all right, title and
interest In the invention before the letters patent
was not the patentee, and consequently not enii-
tied to the benefit of the act,'' &c,
In another cases John Hanson and Charles Han
son applied for the extension of patent (for an
improvement in the manufacture Of lead pipe
which they had invented) originally granted to |
b. latham, on the 29th of March, 1S4I, and re-
issued to the same parties and George N. latham |
on the 10th of March, 1916. The patent was lin
tied in its duration to the 3lst of August 1851, the
invention having been previously patented in Eng
land. Strenuous opposition was made upon several
grounds; but 1t would seem that the decision was
based upon the report of the examiner, which pre-
scented the following reasons Tor rejecting the ap
verted to that the language of the statutes the
subject did not authorize the Commissioner to ex- |
tend patent issued to an assignee. Another of |
the same kind that the act of May 81, 1913, by
which the power previously exercised by the Board |
of Extension was vested in the Commissioner of |
Patents, restricted him TO cases "where an appi- /
cation is made to him. g according to section /
Is of the act of July 4, 1885,. The remaining rea-
son was in effect that the act of lS4s above cited
provided that the Commissioner shall grant or
refuse the extension OFF sspatent upon the same
principles and rules that have governed said
Board'' of Extension; and this rendered the prin
ciple adopted in the case of Thomas (Which was
stated to be directly in point) imperative upon
that functionary. The application was according
ly rejected by the Commissioner, the Hon. Thomas
Ewbank, who adopted in his decision the precise
phraseology employed by the Board of Extension,
and quoted above. e lFaf 3ais3G5
In confirmation of these views, the following
order was also introduced on the part OF the oppo.
nents, which speaks for itself, 0!ii
: "Having, on the application of James Nasmyth,
decided that when the patentee has parted abso-
lutely with his invention and letters patent for the
same, ne cannot have an improvement added TO
his original specification, because he has no legal
possession of the letters patent, and cannot sur
render them to the Patent Office for that purpose.
The examiners will govern themselves by this
decision until it is reversed by appeal from the
Commissioner ae gayoa
SsThe nrincinIea of the decision also aDplies 10