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Theophilus Parsons.

Laws of business for all the states of the Union : with forms and directions for all transactions. And abstracts of the laws of all the states and territories on the various topics online

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application.

The money for the payment of fees should be deposited with an
assistant treasurer, or other officer authorized to receive the same,
taking his certificate, and remitting the same to this office. When
this cannot be done without inconvenience, the money may be re-
mitted by mail ; and in every case the letter should state the exact
amount enclosed. Letters containing money should be registered
at the post-office where mailed.

How Fees may be paid.

The statute of 1870 provides that the following officers are au-
thorized to receive patent-fees on account of the Treasurer of the
United States, and to give receipts and certificates of deposit
therefor; namely, the Commissioner of Patents, or the Treas-
urer, or any of the assistant treasurers, of the United States,
or any of the designated depositaries, national banks, or receivers
of public money, designated by the Secretary of the Treasury
for that purpose ;, and he shall give the depositor a receipt or cer-
tificate of deposit therefor. And all money received at the pat-
ent office for any purpose, or from any source whatever, shall be
paid into the treasury as received, without any deduction whatever ;



TAKING AND TRANSMITTING TESTIMONY. 583

and all disbursements for said office shall be made by the disbursing
clerk of the Interior Department.

All money sent by mail, either to or from the patent office, will
be at the risk of the owner. In no case, should money be sent en-
closed with models. All payments to or by the office should be paid
in specie, or treasury-notes, or national bank-notes.

Taking and Transmitting Testimony.

The clerks of the circuit courts of the United States may issue
subpoenas to compel the attendance of witnesses when depositions
are to be read in evidence in any contested cases in the patent
office.

In interferences and other contested cases, the following rules
have been established for taking and transmitting evidence :

1. That before the deposition of a witness or witnesses be taken
by either party, notice shall be given to the opposite party, as here-
inafter provided, of the time and place when and where such deposi-
tion or depositions will be taken, with the names and residences of
the witness or witnesses, so that the opposite party, either in person
or by attorney, shall have full opportunity to cross-examine the wit-
ness or witnesses. And such notice shall, with proof of set vice of
the same, be attached to the deposition or depositions, whether the
party cross-examine or not, and such notice shall be given in suffi-
cient time for the appearance of the opposite party, and for the
transmission of the evidence to the patent office before the day of
hearing.

2. That, whenever a party relies upon a caveat to establish the
date of his invention, a certified copy thereof must be filed in evi-
dence, with due notice to the opposite party, as no notice can be
taken by the office of a caveat filed in its secret archives.

3. That all evidence, &c., shall be sealed, and addressed to the
Commissioner of Patents by the person before whom it shall be
taken, and so certified thereon.

4. That the certificate of the magistrate taking the evidence shall
be substantially in the following form, and written upon the en-
velope, viz. :



584 THE LAW OP PATENTS.

(198.)

Form of Magistrate's Certificate,

I hereby certify that the depositions of A B, C D, &c., relating to the matter of
interference between E F and G n, were taken, sealed up, and addressed to tho
Commissioner of Patents by me.

* (Signature.)

5. In cases of extension where no opposition is made, the party's
own testimony will be received from the applicant ; and such testi-
mony as may have been taken by the applicant prior to notice of
opposition shall be received, unless taken within thirty days after
filing the petition for the extension: but the applicant shall give
prompt notice to the opposing party or parties of the names and
residences of the witnesses whose testimony has thus been taken.

No evidence touching the matter at issue will be considered upon
the day of hearing, which shall not have been taken and filed in
compliance with these rules : Provided, Notice of the objection has
been given to the other party. But if either party shall be unable,
for good and sufficient reasons, to procure the testimony of a wit
ness or witnesses within the stipulated time, then it shall be tl e
duty of said party to give notice of the same to the Commissioner
of Patents, accompanied by statements, under oath, of the cause of
such inability, and of the names of such witnesses, and of the facts
expected to be proved by them, and of the steps which have been
taken to procure said testimony, and of the time or times when
efforts have been made to procure it ; which last-mentioned notice
to the commissioner shall be received by him previous to the day
of hearing aforesaid.

The notice for taking testimony must be served by delivering to
the adverse party a copy. If he is not found, such service may be
made upon his agent or attorney of record, or by leaving a copy at
the party's usual place of residence, with some member of the family
\vho has arrived -at the years of discretion. This notice must be
annexed to the deposition, with a certificate duly sworn to, stating
the manner and time in which the service was made.

The testimony must (if either party desires it) be taken in



FORM IN TAKING OP DEPOSITIONS. 585

answer to interrogatories, having the questions and answers com-
mitted to writing in their regular order by the magistrate, or, under
his direction by some person not interested in the issue, nor the
agent or attorney of one who is. The deposition, when complete,
must be signed by the witness. The magistrate must append to the
deposition his certificate, stating the time and place at which it was
taken, the names of the witnesses, tl^e administration of the oath,
at whose request the testimony was taken, the occasion upon which
it is intended to be used, the names of the adverse party (if any),
and whether they were present.

No notice will be taken, at the hearing, of any merely formal or
technical objection, unless it may reasonably be presumed to have
wrought a substantial injury to the party raising the objection ; nor
even then, unless, as soon as that party became aware of the objec-
tion, he immediately gave notice thereof to this office, and also to
the opposite party, informing him at the same time, that, unless cor-
rected, he should urge his objection at the hearing. Each party
may furnish at the hearing an abstract of the testimony filed by
him, not exceeding in length one-sixth of the original.

The following are useful forms for the taking of depositions :



(199.)

Form in Taking of Depositions.

A B, being duly sworn, doth depose and say, in answer to interrogatories pro-
posed to him by C D, counsel for E F, as follows, viz :

1. Interrogatory. What is your name, your residence, and occupation?

1. Answer. My name is A B ; I am a carpenter, and reside in Boston, Mass.

And in answer to cross-interrogatories proposed to him by G II, counsel for I K,
as follows :

1. Cross-interrogatory, fyc.

(Signed) A B.

STATE OF ")

>88.

COUNTY OP )

At , in said county, on the day of , A. D. 18 .

before me personally appeared the above-named A B, and made oath that the fore-
going deposition, by him subscribed, contains the whole truth, and nothing but the
truth.



586 THE LAW OF PATENTS.

The said deposition is taken at the request of E F, to be used upon the hearing

of an interference between the claims of the said E F and those of I K, before the

Commissioner of Patents of the United States, at his office, on the day of

next. The said I K was duly notified, as appears by the original notice

hereto annexed, and attended by G H, his counsel.

Certified by me : (Signature.)

The magistrate must then spal up the deposition when completed ,
and indorse upon the envelope a certificate according to the form
before the last.

After a second rejection, none of the papers can be inspected, save
in the presence of a sworn officer, nor will any of the papers be
returned to the applicant or agent.

Whenever it shall be found that two or more parties whose inter-
ests are in conflict aro represented by the same attorney, the exam-
iner in charge will notify each of said principal parties of this fact.



The Filing and Preservation of Papers.

All claims and specifications filed in this office (including amend-
ments) should be written in a fair, legible hand, without interlinea-
tions or erasures, except such as are clearly stated in a marginal or
foot note, written on the same sheet of paper ; or, failing in which,
the office may require them to be printed. All papers filed in the
office will be regarded as permanent records of the office, and must
never, on any account, be changed, further than to correct mere
clerical mistakes.

Amendments.

The applicant has a right to amend, of course, after the first re-
jection ; and he may amend after the second, if the examiner therein
present any new references, unless the devices claimed by him in
the first amendment were entirely different from those originally
relied upon, and not mere modifications of them. After a second
rejection, and before appeal to the examiners in chief, the applicant
may draw up special amendments, and present the same to the
commissioner, together with an affidavit showing good cause why



FORM OF AMENDMENT OF SPECIFICATION. 587

the amendments were not sooner offered, whereupon the commis-
sioner may, in his discretion, grant leave to make such special
amendments, and allow a reconsideration. No alterations or
amendments, except of clerical errors, will be allowed after an
appeal to the examiner in chief, or after the patent has been ordered
to issue, unless the same are approved by the examiner in charge.

All amendments of the model, drawings, or specification, must
conform to at least one of them as they were at the time of the filing
of the application ; and all amendments of specifications or claims
must be made on separate sheets of paper from the original, and
must be filed in the manner above directed. Even when the amend-
ment consists in striking out a portion of the specification, or other
paper, the same course should be observed. No erasure must be
made. The papers must remain forever just as they were when
filed, so that a true history of all that has been done in the case
may be gathered from them.

The following are forms proper to be observed in such cases :



(200.)
Form, of Amendment of Specification.

" I hereby amend my specification by inserting the following words aftei the
word , in the line of the page thereof (here should

follow the words that are to be inserted) ; or, " I hereby amend my specification by
striking oat the line of the page thereof; "or, "by striking out the

first and fourth clauses of the claim appended thereto ; " or whatever may be the
amendment desired by the applicant.

In each case, the exact word to be stricken out or inserted should
be clearly described, and the precise point indicated where any
insertion is to be made.

The office will, in no case, return specifications for amend-
ment ; nor will any person whatever be allowed to take any pa-
pers, models, or samples from the office. If applicants have not
preserved copies of such papers as they wish to amend, the office
will furnish them on the usual terms. No application will be sus-
pended merely because the applicant may refuse to amend as re-



598 THE LAW OF PATENTS.

quested or advised by an examiner in charge ; but in such cas.e the
application must bo examined oil its merits, as presented, and
allowed or rejected, so that the inventor may take an appeal if the
decision should be adverse.

Placing the affidavit of the applicant on one piece of paper and
the specification on another, so that both may be detached and ap-
plied to other papers, will be looked upon with suspicion, and any
such substitution will be carefully guarded against. No speciaca-
tion will be received unless the sheets are attached together, or
unless the officer who administers the oath has subscribed his name
upon each separate sheet of paper, so as to show that the specifica-
tion presented is the same that was subscribed and sworn to.


Trade-marks.

The statute of July 8, 1870, provides not only for patents and
copyrights, but for trade-marks. The following are the important
sections which relate to this subject :

SECT. 77. And be it further enacted, That any person or firm domi-
ciled in the United States, and any corporation created by the au-
thority of the United States, or of any State or Territory thereof,
and any person, firm, or corporation resident of or located in . any
foreign country which by treaty or convention affords similar privi-
leges to citizens of the United States, and who are entitled to the
exclusive use of any lawful trade-mark, or who intend to adopt and
use any trade-mark for exclusive use within the United States, may
obtain protection for such lawful trade-mark by complying with the
following requirements : to wit,

First, By causing to be recorded in the patent office the names
of the parties, and their residences and place of business, who desire
the protection of the trade-mark.

Second, The class of merchandise and the particular description
of goods comprised in such class, by which the trade-mark has been
or is intended to be appropriated.

Third, A description of the trade-mark itself, with facsimiles
thereof, and the mode in which it has been or is intended to be ap-
plied and used.



TRADE-MARKS. 689

Fourth, Tho length of time, if any, during which the trade-mark
has been used.

Fifth, The payment of a fee of twenty-five dollars, in the same
manner and for the same purpose as the fee required for patents.

Sixth, Tho compliance with such regulations as may be pre-
scribed by the Commissioner of Patents.

Seventh, The filing of a declaration, under the oath of the per-
son, or of some member of the firm, or officer of the corporation, to
the effect that the party claiming protection for the trade-mark has
a right to the use of the same, and that no other person, firm, or cor-
poration has the right to such use, either in the identical form, or
having such near resemblance thereto as might bo calculated to
deceive ; and that the description and facsimiles presented for record
are true copies of the trade-mark sought to be protected.

SECT. 78. And be it further enacted, That such trade-mark shall
remain in force for thirty years from the date of such registration,
.except in cases where such trade-mark is claimed for and applied to
articles not manufactured in this country, and in which it receives
protection under the laws of any foreign country for a shorter period ;
in which case it shall cease to have any force in this country by
virtue of this Act at the same time that it becomes of no effect else-
where ; and during the period that it remains in force it shall entitle
the person, firm, or corporation registering the same to the exclusive
use thereof so far as regards the description of goods to which it is
appropriated in the statement filed under oath as aforesaid ; and no
other person shall lawfully use the same trade-mark, or substantially
the same, or so nearly resembling it as to be calculated to deceive,
upon substantially the same description of goods : Provided, That,
six months prior to the expiration of said term of thirty years, ap-
plication may be made for a renewal of such registration, under
regulations to be prescribed by the Commissioner of Patents, and
the fee for such renewal shall be the same as for the original regis-
tration ; certificate of such renewal shall be issued in the same
manner as for the original registration, and such trade-mark shall
remain in force for a further term of thirty years : And provided
further, That nothing in this section shall be construed by any
court as abridging, or in any manner affecting unfavorably, the claim



590 THE LAW OF PATENTS.

of any person, firm, corporation, or company, to any trade-mark
after the expiration of the term for which such trade-mark was
registered.

SECT. 79. And be it further enacted, That any person or corpora-
tion who shall reproduce, counterfeit, copy, or imitate any such re-
corded trade-mark, and affix the same to goods of substantially the
same descriptive properties and qualities as those referred to in the
registration, shall be liable to an action in the case for damages for
such wrongful use of said trade-mark, at the suit of the owner
thereof, in any court of competent jurisdiction in the United States ;
and the party aggrieved shall also have his remedy according to the
course of equity to enjoin the wrongful use of his trade-mark, and
to recover compensation therefor in any court having jurisdiction
over the person guilty of such wrongful use. The Commissioner of
Patents shall not receive and record any proposed trade-mark which
is not and can not become a lawful trade-mark, or which is merely the
name of a person, firm, or corporation only, unaccompanied by a
mark sufficient to distinguish it from the same name when used by
other persons, or which is identical with a trade-mark appropriate
to the same class of merchandise, and belonging to a different owner,
and already registered, or received for registration, or which so
nearly resembles such last-mentioned trade-mark as to be likely to
deceive the public : Provided, That this section shall not prevent
the registry of any lawful trade-mark rightfully used at the time of
the passage of this Act.

SECT. 80. And be it further enacted, That the time of the receipt
of any trade-mark at the patent office for registration shall be noted
and recorded ; and copies of the trade-mark, and of the date of the
receipt thereof, and of the statement filed therewith, under the seal
of the patent office, certified by the commissioner, shall be evidence
in any suit in which such trade-mark shall be brought in contro-
versy.

The sections 81, 82, 88, and 84, authorize the commissioner to
make rules, <fec, relating to the transfer of trade-marks ; prohibit
the obtaining of trade-marks fraudulently ; save to every one any
remedy he has now for the fraudulent use of his trade-mark ;
and provide that no trade-mark shall be issued in any unlawful or



WHAT MAY BE THE SUBJECT OF COPYRIGHT. 591

injurious business, or if it be sought for purposes of fraud or
deception.

The interests of inventors and of the public, and the proper trans-
action of the immense and complicated business of the patent office,
absolutely require it should be governed by rules ; and most of
them are rigidly adhered to. The statements, rules, and forms
above given are substantially the same as those prepared by the
Commissioner of Patents for the information and guidance of ap-
plicants. The experience of the author of this book authorizes him
to say that all who deal with any of the officers of the patent office
will meet with kindness and courtesy, and as much indulgence and
assistance as the business and the rules of the office permit.



CHAPTER XXXIV.

THE HiA.W OF COPYRIGHT.

AN Act of Congress, approved July 8, 1870, makes many changes
in the law of copyright. It repeals all former laws on this subject,
but preserves all rights existing under those laws. As this act is
closely condensed, and every part of it is material, we give all the
sections which relate to copyright, except the last, which is only a
repealing section.

SECTION 85. And be it further enacted, That all records and other
things relating to copyrights, and required by law to be preserved, shall be
under the control of the librarian of Congress, and kept and preserved in
the library of Congress ; and the librarian of Congress shall have the
immediate care and supervision thereof, and, under the supervision of the
Joint Committee of Congress on the Library, shall perform all acts and
duties required by law touching copyrights. The librarian shall cause a
seal to be provided for said office, with such device as the Joint Committro
on the Library may approve, with which all records or papers issued from
said office, and to be used in evidence, shall be authenticated. He shall
also give an additional bond, with sureties, to the treasurer of the United
States, in the sum of five thousand dollars, with the condition that he will



592 THE LAW OF COPYRIGHT.

render to the proper officers of the treasury a true account of all moneys
received by virtue of his office. He shall also make an annual report to
Congress of the number and description of copyright publications for
which entries have been made during the year. And the librarian of
Congress shall receive a yearly compensation of four thousand dollars, to
commence when this Act shall take effect.

SECT. 86. And be it further enacted, That any citizen of the United
States, or resident therein, who shall be the author, inventor, designer, or
proprietor of any book, map, chart, dramatic or musical composition, en-
graving, cut, print, or photograph, or negative thereof, or of a painting,
drawing, chromo, statue, statuary, and of models or designs intended to be
perfected as works of the fine arts, and his executors, administrators, or
assigns, shall, upon complying with the provisions of this Act, have the sole
liberty of printing, reprinting, publishing, completing, copying, executing,
finishing, and vending the same, and, in the case of a dramatic composi-
tion, of publicly performing or representing it, or causing it to be per-
formed or represented by others ; and authors may reserve the right to
dramatize or to translate their own works.

SECT. 87. And be it further enacted, That copyrights shall be granted
for the term of twenty-eight years from the time of recording the title
thereof in the manner hereinafter directed.

SECT. 88. And be it further enacted, That the author, inventor, or de-
signer, if he be still living and a citizen of the United States, or resident
therein, or his widow or children if he be dead, shall have the same exclu-
sive right continued for the further term of fourteen years, upon recording
the title of the work, or description of the article, so secured, a second time,
and complying with all other regulations in regard to original copyrights,
within six months before the expiration of the first term. And such per-
son shall, within two months from the date of said renewal, cause a copy
of the record thereof to be published in one or more newspapers printed in
the United States, for the space of four weeks.

SECT. 89. And be it further enacted, That copyrights shall be assigna-
ble in law by any instrument of writing ; and such assignment shall be re-
corded in the office of the librarian of Congress within sixty days after its
execution, in default of which it shall be void, as against any subsequent
purchaser or mortgagee, for a valuable consideration, without notice.

SECT. 90. And be it further enacted, That no person shall be entitled
to a copyright, unless he shall, before publication, deposit in the mail a
printed copy of the title of the bo&c or other article, or a description of the
painting, drawing, chromo, statue, statuary, or model or design for a work
of the fine arts, for which he desires a copyright, addressed to the li-
brarian of Congress, and, within ten days from the publication thereof, de-
posit in the mail two copies of such copyright book or other article, or in
case of a painting, drawing, statue, statuary, model, or design for a work
of the fine arts, a photograph of the same, to be addressed to said li-
brarian of Congress, as hereinafter to be provided.

SECT. 91. And be it further enacted, That the librarian of Congress
shall record the name of such copyright book or other article, forthwith in



THE LAW OF COPYKIGHT. 593

a book to be kept for that purpose, in the words following : " Library of
Congress ; to wit, Be it remembered, that on the day of , an-
no Domini , A. B., of , hath deposited in this office the title of

a book (map, chart, or otherwise, as the case may be, or description of tlio
article), the title or description of which is in the following words ; to wit
(here insert the title or description), the right whereof he claims as au-
thor, originator (or proprietor, as the case may be), in conformity with the
laws of the United States respecting copyrights. C. D., Librarian of Con-



Online LibraryTheophilus ParsonsLaws of business for all the states of the Union : with forms and directions for all transactions. And abstracts of the laws of all the states and territories on the various topics → online text (page 59 of 70)