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All other original copies are filmed beginning on the first page with a printed or illustrated impre the Examiner-of-Interference, 12 PATENT LAW from whose decision, if adverse, an appeal may be taken, first, to the Board of Examiners-in-Chief, and from it to the Commissioner. The cost can only be determined on declaration of the Interference. lyisclaUner. If, after a patent is obtained, it is found that the claims were m.ade so broad as to cover more than the inventor was justly entitled to, such matter may be disclaimed by the owner of the patent. For disclaimer send the Letters Patent, a statement of the matter to be disclaimed, and the amount of Government fee, and my fee. When a patent is inoperative or invalid by reason of a defective or insufficient specification, or too much or two little being claimed, a re-issue of the patent may be applied for so as to make the necessary corrections. Before proceeding with an application for re-issue it is advisable to instruct me to make a preliminary inves- tigation in the Patent Office, in relation to the apparent novelty of the invention at the time the patent was granted. For this purpose send me a statement of defects, and my fee. I will then examine the official proceedings in relation to the grant, and the records in regard to novelty, and will then report the probable chance of a re-issue. If it is desired to make application for re-issue, the Government fee should be remitted, when the necessary documents will be prepared and forwarded for inspection and execution. The case is then prosecuted in the same manner as original applica- tions, and upon allowance, is passed to issue without further charge. ♦ PATENT LAW n Id ♦ Cfiveats, Inventors requiring any further time or means for the completion of their inventions, should invariably be protected by a caveat filed in the secret archives of the Patent Office. This entitles the inventor to immediate notice of the filing of a rival application, and is far pre- ferable to the filing of applications for patents on crude inventions of doubtful novelty, to meet with probable rejection, or to serve as finger-posts or beacons to more careful inventors. Only citizens of the United States can file a caveat in the United States Patent Office ; but any one, whether subject or alien, can file a caveat in the Canada Patent Office. A caveat continues in force one year, but may be renewed annually. If it is desired to file a caveat, send me a sketch with a des- cription of the invention and the fee, when the necessary documents will be prepared and forwarded for signature. l}esif/n I'ntenfs* Invention involving ornamental configuration, eitner in manufactures, sculptures or prints, to be imprinted upon articles of manufacture, may be protected by what is called a Design Patent. In making application for Design Patents send me a .specimen or drawing of the design, and a description setting forth what is new. Trade Marks. A Trade Mark is a device used to distinguish the goods of a particular manufacture. JVho Ma if Obtain a Irade Mark? Any person, firm or corporation, who is entitled to its exclusive use and uses the same in commerce. 14 PATENT LAW For registration of a Trade Mark, send amount of the fee, and prints or unmounted photographs, or a sketch and description, also the following information : 1st. Full name, residence, occupation, place of busi- ness, and citizenship, of each applicant or member of a firm. 2nd. The name of firm or corporation, if any. The class of merchandise and the particular description of goods comprised in such class or mode of its application thereto. Assignments, Agreements, LicenseSf d'c. Having had long experience and practice in patent law and the preparation of all papers pertaining to the manufacture, sale, etc., of patents and patent-rights, I am in a position to properly prepare any assignment, agreement, license, etc., which inventors may at any time require. Copies of Patents, A printed copy of any United States patents will be furnished by me for twenty-five cents ; copy of any Canadian patent will be furnished at the cost of typewriting the specification, and copying the draw- ings ; and the copy of any British patent for one dollar. In ordering copies of patents send the number of the patent, name of patentee, and title of the invention. If the patentee's name and date of the patent and number of patent are unknown, I will, if desired, care- fully search for the patent described in the order. For the time occupied in this search a reasonable cliarge is made. \i ■M PATENT LAW Iteference TAhrar^f, 15 I have a reference library ot copies of over 400,000 Letters Patent issued by the U. S. Government, and 35,000 issued by the Government of the Dominion of Canada, which I place gratuitously at the disposal of inventors, the legal profession and all interested in patents. Decision of the Courts in Patent Suits, In connection with the above library I have all the decisions of the Supreme, District and Circuit Courts and of the Commissioners of Patents, that have been rendered since the year 1872, which I am pleased to place at the disposal of the legal profession. i The Policy of Patent Grants, The marvellous instrumentalities by which in almost every department of industry the man of our day is enabled to convert to his use the world's forces, and raw materials of nature, are well known to have reached their most marked development, within comparatively circumscribed limits, both of space and time These limits have been in a very striking degree conterminous with that system of policy known as " Patent Grants." The recognition of the claims and importance of inven- tion, while of quite modern date, is, nevertheless, eminently proper, resting as it does on a higher order of service than can be alleged as the foundation of title in any mere concrete property, such as lands or chattels. The originator of a useful invention or the author of a book or a great work of art, is, in a sense, a creator, and has added absolutely to the world's resources. In the march of improvemeyit^ inventors and discoverers are MMl x6 PATENT LAW the vanguard. Without this element, society would stagnate and retrograde. Admitted that it is expedient that invention be en- couraged, the only question is how? No plan, ever yet proposed, approaches the condition of either the practicableness or fairness that the policy ot Patent Grants affords, and this is true, in spite of the defects in administration, of a system yet in its infancy. England, which was the first, and for nearly two centuries, the only nation to adopt the principle of systematic pro- tection of inventors, led off very conspicuously in the march of labor-saving improvements, and more recently, our own country, which has for three generations enjoyed a patent code of exceptional liberality, or rather of exceptional justice to inventors, is noiv confessedly in the van, and her manufacturers are successfully invad- ing markets that la'ely counted her among their best customers. The value of patents has now become so immense that but few manufacturers can afford to be without their protection, and it is a noticeable fact that the leading factories of our country owe their commence- ment and success to tlie prestige and protection afforded by the possession of a good and valid patent. There is certainly no more eas5r way of making money, no mere royal road to fortune, than by happy discovery or successful invention, and secure protection of a needed improvement, and it is well worth con- sidering, that instead of there being less room f ingenuity than heretofore, there are constantly openii .^j up entirely new fields for invention, and the valuf of patent property is becoming more and more appreciated. vCV W PATENT LAW 17 An Inventor May Employ Skilled Workmen to Carry out his Invention. The person in whose mind the idea of the invention is first conceived is the inventor, and if in order to carry his conception into effect it is necessary to employ manual dexterity or even inventive skill in mechanical details and arrangements requisite for carrying out the original conception, the skilled employee will be a mere instrument through which he works his idea, and the employer will be considered the inventor in the full sense of the word. In tLe suit of " Bloxem v Elsee, ii Car. and P. §6y ; Dar. Pat. cas. rj2.'' ** It was objected in this case that parts of the improvements in Foud- rinier's paper machine were the inventions of Donkin, who proved that when he made these improvements he was employed as an engineer for the purpose of bringing the machine to perfection and was paid for so doing and that he was acting as the servant of the inventor of the machine for the purpose of suggesting those improve- ments. He did not discover the principle of the machine nor invent the important improvements on it." "The patent was not disturbed on that ground." \C). t An Invention Produced from Abandoned Expert' tnents of Others, Antecedent experiments not brought to completion or conducted to a full result will not affect the patent of a more successful person in the same line, although he avails himself of the knowledge gained by the experi- ment of his predecessors. Rights of Employers and Employees, The doctrine held by the Patent Office is that an inventor, who is an employer, has a right to avail auL i8 PATENT LAW himself of the mechanical skill of those whom he employs to put his invention into practical form. If the inventor-employer gives general directions to his workmen to produce a certain machine, the com- bination or parts or arrangements produced belong exclusively to the inventor-employer, and the workman has no patentable right therein. An inventor who may employ a skilled laborer to assist him in carrying out and perfecting his invention, is considered the sole inventor even if in the course of experiments arising from that employment the skilled laborer makes discoveries auxiliary to the plan and preconceived mind of the employer. But where the workman himself suggests and invents an improvement, without previous directions from his employer, the invention belongs to the work- man ; he can patent it and the employer has no claim thereon, although the device may have been made in the shop of the employer, with his tools and during the time belonging to him. Exfcutovs, In case of the death of the inventor the patent may be applied for by, and will be issued to his executors and adminstrators. In case of an assignment of the whole interest in the invention, or of the whole interest in the patent if granted, the patent will issue to the assignee upon the request of the executor or adminis- trator ; and if an assignee holds an undivided part interest, the patent will, upon a similar request, issue jointly to him and the inventor, but the assignment or instrument must first have been entered of record. The application and oath must be made by the actual inventor, if alive, even if the patent is issued to a legal representative ; but where the inventor is dead the application and oath must be made by his executor or administrator. . i n PATENT LAW What is a Patent? 19 .A patent for an invention is a grant for a specified time to the inventor, or his legal representative, of the exclusive right to make, use and sell the invention claimed in the specification thereto annexed. Who Mai/ Obtain a Patent ? A patent may be obtained by any person who has invented any new and useful art, machine, manufacture or composition of matter, or design, or any new and useful improvement thereon. Joint inventors are entitled to a joint patent ; neither can claim one separately. Independent inventors of distinct and independent improvements in the same machine cannot obtain a joint patent for their separate inventions ; nor does the fact that one furnishes the capital and another makes the invention entitle them to make applications as joint inventors ; but in such a case they may become joint patentees by a suitable deed of assignment. i\ Qualities of Invention, If an alleged invention is absolutely frivolous and foolish, though it may have the element of novelty in one sense, it is not the subject of a patent. So, too, mere col- orable variations or slight unimportant changes will not support a patent ; as the immersion of cloth in a steam bath with the view of dampening it instead of immersing it in hot water ; and the substitution of steam as a means of heating hollow rollers over which wool was to be passed, instead of heating them by the insertion of hot iron bars. In such cases if the consequences resulting from the change are unimportant and the change consists merely in the em- ployment of an obvious substitute, the discovery and appli- cation of which could not have involved the exercise of the $ 'if. 20 PATENT LAW m inventive faculty in any considerable degree, then the change is treated as merely a colorable variation or a double use, and not as a substantive invention. The application of an old contrivance to a new use is not patentable. Thus, where a certain kind of wheels had been used on other carriages than railway carriages, Lord Abinger, C.B., held that the plaintiff could not claim a patent merely for the use of such wheels upon railway carriages ; and where a patent claimed as the invention of a patentee, a process of curling palm leaf for mattresses, but it appearing that hair had long been prepared by the same process for the same purpose, it was held to be a mere double use of an old process. The mere quality of cheapness or other superiority in the material of which an article is made, disconnected with any new or different mode of applying that material in the process pf making the thing, has not been held to be the subject of a patent. It is well settled that a prior experiment will not in- validate an invention subsequently completed by another ; such an experiment must have been brought to a practical completed form, capable of producing some useful result. He is the inventor and is entitled to the patent who has completed the machine and made it capable of useful oper- ation, although others may have previously had the idea and made some experiments towards putting it into practical form. Prior machines, in order to defeat a patent for sub- sequent machines, must have been working machines, and not mere experiments. They must either have actually done the worlc or have been capable of doing it. When a prior foreign patent or a printed publication of prior foreign invention is relied upon to defeat a patent, the description and drawings therein must contain and ex- hibit a suDstantial representation of the patented improve- ment, in such full, clear and exact terms as to enable any person skilled in the art or science to which it appertains to make, construct and practice the invention, to the same practical extent as he would be enabled to do if the inven- tion was derived from a prior patent in this country. h ii\ iS.M-Mf^''"'''"'-^'^-^' *"'-'•"'"■ '•-'*'" '^'"-^ i:',:»^« PATENT LAW 31 Patent TjUIvs— Canada, 1 . No inventor shall be entitled to a patent for An inventor his invention in Canada, if a patent therefor in ^^s 12 months any other country has been in existence in such '".Y„/^iI;!°:„ ^ r 111 1^1 • 1 • Patent nis in- country for more than twelve months prior to his vention in application for such patent in Canada. Canada. 2. A patent sha)l be void if any material allega- Impeachment tion in the petition or declaration of the applicant ^^ ^ patent, is untrue, or if the specifications and drawings contain more or less than is necessary for obtain- ing the end for which they purport to be made, when such omission or addition is wilfully made for the purpose of misleading ; but if it appears to the Court that such omission or addition was an involuntary error, and if it is proved that the patentee is entitled to the remainder of his patent pro tanto the Court shall render a judgment in accordance with the facts, and shall determine as to costs, and the patent shall be held valid for such part of the invention described as the patentee is so found entitled to. 3. Every person, who, without the consent in Infringement writing of the patentee, makes, constructs or puts °^ ^ patent, in practice any invention for which a patent has been obtained under this Act or any previous Act, or who procures such invention from any person not authorized by the patentee or his legal representative to make or use it, and who uses it, shall be liable to the patentee or his legal repre- sentative in an action for damages for so doing, and the judgment shall be enforced and the damages and costs that are adjudged shall be , recovered in like manner as in other cases in the Court in which the action is brought. 4. Every Canada patent granted _ under the \ !■ aa Forfeiture of a patent, for not manufac- turing the pat- ented inven- tion. Forfeiture of a patent for im- porting the patented in- vention into Canada. Exchequer Court to hav..' jurisdiction to decide such questions. Barter vs. Smith. PATENT LAW Patent Act shall be subject, and be expressed to be subject to the following conditions : (a) That such patent and all the rights and privileges thereby granted shall cease and determine, and that the patent shall be null and void at the end of two years from the date thereof, unless th^ patentee or his legal representative, or his assignee, within that period or any authorized exten- sion thereof commences, and after such commence- ment continuously carries on in Canada the con- struction or manufacture of the invention patented, in such a manner that any person desiring to use it may obtain it or cause it to be made for him at a reasonable price at some manufactory or estab- lishment for making or constructing it in Canada. ip) That, if after the expiration of twelve months from the granting of the patent, or any authorized extension of such period, the patentee or patentees, or any of them, or his or their representatives, or his or their assignee, for the whole or a part of his or their interest in the patent, imports or causes to be imported into Canada the invention for which the patent is granted, such patent shall be void as to the interest of the person or persons importing or causing to be imported as aforesaid. {c) Any question which arises as to whether a patent or any interest therein has or has not become void, may be adjudicated upon by the Exchequer Court of Canada, which Court shall have jurisdiction to decide aii}^ such question upon information in the name of the Attorney General of Canada, or at the suit of :my person interested. Decisions 37th Section Patent Act, (cf) In the suit of Barter vs. Smith, it was proved that none of the patented machines had been put up in Canada within the time prescribed, and that li PA TENT LA W 23 /i there had been some importation after the authorized period, yet the ger, .ral conclusion arrived at was that the respondent having refused no one the use of his inventions, and that the mportation assented to by him to be made bcin^ inconsiderable, having inflicted no injury on Canadian manufacturers, having been so counten- anced, not in defiance of the law but evidently as a means to create a demand for the said inventions, which the patentee intended to manufacture, and did in fact offer to manufacture in Canada, he has not forfeited his patents. {e) In the suit of the Tor. Tel. Mfg. v Bell Tel. The Toronto Co. it was decided that the patenters were bound Telephone to license, that is, to sell the use of their invention, -i he j^^n Xeie- and bound to see that their invention was not im- phone Co. of ported after twelve months, and that it be manufac- Canada. turedin Canada after two years after the issue of the patent, because connivance in an importation is equal to importing or causing to be imported. ^ ^ The conclusion is that the patentees, the respon- dents in this case, or their representatives, having extensively imported the patented articles after the expiration of twelve months from the date of the patent ; having not manufactured in Canada the said articles to the extent they were bound to do after two years of the existence of theii privi- lege ; having resisted and refused to sell or deliver licenses as required by the Statute to persons w illing to pay a reasonable price for the private and free use of the patented invention, they have forfeited their patent. (/) In the suit of Mitchell v Hancock it was de- Mitchell vs. cidcd that the importation of the invention itself Hancock, lasted for several years of the existence of a patent until a comparatively recent date, covered a large ^t.., upon the public to hold that the latter is to ',P Jered as using the invention in the sense of tiic ;i:>tatute. He cannot know that the article li oi pi Inl of] nt ic- 1- PATENT LAW 31 process. nof Infringement is not made by the true proprietor. The probab- of an art or jj-^y jg ^j^^^ j^^ intends to purchase the genuine composition, and that he is deceived into suppos- ing that he has purchased it ; still, in strictness he may be liable to an action for using the thing it- self by consuming it. 23. An Art -. — Where an art is the subject mat- ter of a patent, the patent will be infringed by exer- cising or practising the same art, which will con- stitute the using of the invention or discovery. It may, however, be doubted whether the mere using of the art or process, especially for a differ- ent purpose and that rejection of the valuable re- sult of that purpose, is to be considered an in- fringement. Thus, in a recent English case the patent stated that the invention consisted in the use and application of a certain chemical agent for the purpose of precipitating the solid, animal and vegetable matter contained in sewerage water. The Board of Health used the process for the pur- pose of disinfecting and deodorizing sewerage water, whereby the same precipitated all animal and vegetable matter, which was not, however, used, but rejected a? an accidental result. The Court of Queen's Bench held that there was no evidence of an infringement. 24. An infringement involves substantial iden- tity, whether that identity is described by the same terms, same principle or sam.e modus operandi. If the invention of the patentee be a machine it will be infringed by a machine which incorporates in its structure and operation the substance of the invention, but if the difference between the two machines is not a mere diffe ence of form, if there is a material alteration in the construction, if they are substantially different combinations of mcch- Infringement of machines. 32 PATENT LAW ri anism to effect the same purpose by means which are not really the same in substance, then the one will not be an infringement of the other. 25. A patent for a combination of several elc- infringement ments is not infringed by a combination which of a claim dispenses with one of the elements and accom-^^°'^'^4 ^7^ ..K . .. ,^ , ^, the omission pushes the same result or a new result by the use ^f ^ gj^^gig of the remaining elements, nor is a patent for sev- element of eral elements infringed by a combination which the claim, dispenses with one of the elements and substitutes therefor an element substantially different in con- struction and operation, but serving the same pur- pose as the omitted element. 26. But in cases where die patent is not for a Infringement combination, if the principle is applied in the same "^ ^ ^}^^^ way that the patentee has applied it, then thep^j^^JS. absence of two or three elements in the defend- ant's machine, which are mentioned in the .speci- fication, will not prevent the patentee from re- covering for an infringement. 27. Every patent stands upon its subject m it- Every patent ter, and, accordingly, the subject of infringement ^^^^^s^ubiecf depends upon the use of that which is covered by matter. the pateVit. Where a patent is for the combin- ation alone it is no infringement to use any of the parts or things which go to make up the combin- ation, provided the combination itself be not used. 28. In the case of a process where the object to infringement be accomplished is open to the public, notwith- of ^ process, standing the patent, provided it can be accom- plished by several modes, which as processes are substantially different, an infringement must be in respect to the processes used b^^ the patentee. But unless it appears that the article itself could be produced by another process constituting an s PATENT LAW nt )n : 2nt Patent for distinct im- provements. A patent not infringed when not in existence nt ts nt Action infringement may be brought by the patentee. independant discovery, then an infrinp^ement may be proved by the making of the article. Or to state in other words, when the invention or sub- ject matter of the patent is entirely a new manu- fartiire it is immaterial by what process it is pro- duced since the infringement must consist in mak- ing the same thing, whether by one process or another. But where the invention or subject mat- ter is the process of making a particular thing which may be made by more than one process, the inquiry will be whether it has been made by the use of the process covered by the patent. 29. Where a patent is for several distinct im provements or things and does not stand upon the combination of such things, when the use of any one of them will be an infringement. 30. A patent cannot be infringed by anything done when the patent did not exist, and, therefore, it is no infringement to make or use a machine subsequently patented or otherwise practice the invention before the patent is obtained, which is afterwards made the subject of a patent. But when a patent is granted, the right in the subject matter relates back to the time of the invention, so that the party who has practiced the invention between the time of the discovery and the issuing of a patent must cease to do so. Any acts of in- fringement done after the issuing of the patent will be ground for the recovery of damages, al- though the previous acts were done at a time when it was uncertain whether there would be any pat- ent issued. 3 1 . An action for infringement may be proper- ly brought by the patentee on behalf of himself, or on behalf of anyone to whom he has granted 34 PATENT LAW an exclusive license, and who has been damaged by the infringement. 32. Where the patentee has assigned his whole in- terest, either before or after the patent was taken out, the action can only be brought in the name of the assignee, but where the assignment is of an undivided part of the interest, the action should be brorght in the joint names of the patentee and the assignee, as representing the whole interest Liaiv of Trade Marks, The general principle upon which the Courts exercise jurisdiction in the case of trade marks is, that a manufac- turer who produces an article of merchandise which he an- nounces as one of public utility, and who places on it a mark by whicl it is distinguished from all other articles of a similar kind, with the intention that it may be known to be of his manufacture, becomes the exclusive owner of that which is henceforth called his trade mark. By the law of this country he obtains a property in the mark which he so affixes to his goods, and the property thus acquired b>' the manufacturer, like all other pro- l)erty, is under the protection of the law, and for the in- PATENT LAW 35 vasion of the right of the ownei' of such property, the law affords a remedy similar in all respects to that by which the possession and enjoyment of all property is secured to the owners. Where, therefore, a manufacturer has been in the habit of stamping the goods that he has manufactured with a particular mark or brand, so that persons pur- chasing goods of that description know them to be of his manufacture, no other manufacturer has a right to adopt the same stamp. When once a person has acquired a right in a trade mark any infringement of that right will form ground for the interference of the Court. For the Court to in- terfere there must be fraud, for where there is no fraud there is no wrong to be redressed and no remedy appli- cable. But it is not necessary that there should be fraud in the sense that the infringer knowingly and will- fully makes a fraudulent attempt to appropriate to him- self the fruits of another's reputation ; if he acts so that custom intended for another is diverted to himself, and that the public buy and pay for one thing while intend- ing to buy and pay for another, so that both vendor and purchaser are injured, there is fraud, and the in- tention of the infringer is unimportant. Infringement under our law is criminally punishable. It is not everything that can be marked on goods that will constitute a valid trade mark. A mere de- scriptive adjective, for instance, cannot be appropriated from the rest of the world. It is necessary, therefore, to distinguish true trade marks from other marks, which, though affixed to goods, yet cannot be claimed as the exclusive trade marks of any individual. For the purposes of the Trade Mark Act a trade mark must consist of or contain at least one of the fol- lowing essential particulars : 36 PATENT LAW (a) A name of an individual or firm printed, impressed or woven in some particular and descriptive manner, or (b) A written signature or copy of a written signature of the individual or firm applying for the registration thereof as a trade mark, or {c) A descriptive device, mark, brand, heading, label or ticket, or {(i) An invented word or invented words, or (/) A word or words having no reference to the char- acter or quality of the goods, or not be'ng a geogra- phical name. The important feature which is absolutely necessary in all the varieties of trade marks is that of distinctive- ness. Each mark must be such that if the question of infringement arises it shall be perfectly clear what it is that is being infringed, and that this something is quite different from all other marks used upon the same class of goods. The portrait of a person whose name has become de- scriptive of the goods, is not sufficiently descriptive to be registered as a good trade mark, but the portrait of a public character has been allowed to be registered in America. A word which was first applied to or was even in- vented for the sale and express purpose of designating a substance or composition may prove, on investiga- tion, to have ceased to retain the characteristic which it once possessed of conveying the idea of the goods being of a particular manufacture, in which case the person who first used the word, although its inventor will cease to hive any exclusive rights in it since it will have be- come purely descriptive of an article which all may freely make. PATENT LAW lufrhigeinent of Trade Mai'hs, 37 When an action has been commenced having for its object the restraint of an unfair competition in trade, car- ried on by means of an employment by the defendant of a trade mark identical, or nearly identical, with the plaintifi ':;, there must be established, in order for the action to be successful, the existence of the trade mark, the plaintiff's exclusive right therein, the fact of an im- itatioii, and the absence of license or acquiescence on the part of the plaintiff. Assuming then the validity of the trade mark and the rights of the plaintiff therein to be established, the next and most important point for the plaintiff to prove is the fact of infringement. The plaintiff has no right to say that the defendant shall not sell exactly the same article, better or worse, or an article looking exactly like his own unpatented article, but he has a right to say that the defendant shall not sell such article in such a way as to steal (so to call it) the plaintifi's trade mark, and make purchasers believe that it is the manufacture to which that trade mark was originally applied. In the language of common law the defendant has no right to sell his goods as and for those of the plaintiff. The natural consequence of marking goods so as to cause them to appear the same in the market as those of a well-known firm is to deceive the ultimate pur- chaser, and such deception will be restrained even though the original purchaser is not deceived. No man is entitled to represent his goods as being the goods of another man, and no man is permitted to use any mark, sign or sample, device or other means whereby without making a direct false representation himself to a pur- chaser who purchases from him, but enables such pur. chaser to tell a lie, or make a false representation to somebody else, who is the ultimate customer. If a man MiaiHiil 38 PATENT LAW does that, the natural consequence of which is to enable that other person to decieve, and pass off his goods as somebody else's, for that he is answerable, and the same principle of preventing that which would deceive the ultimate purchaser is observed where the probability of deception arises, not from the imitation of a trade mark proper, but from copying the 'peculiar get-up of the plaintiff's goods, or from some similar act. The infringement of a trade mark may consist in the adoption of the essential part of the plaintiff's trade mark by the defendant, and where there is no imitation of the essential part, a resemblance in particulars com- mon to the trade does not constitute an infringement. But, on the other hand, the infrmgement may consist in the imitation of the general appearance of the plain- tiff's mark, and where both trade marks are of compos- ite character, it is possible that though no one particular mark has been exactly imitated, or the principal mark which has been reproduced cannot for some reason or other be protected as a trade mark, the combination may be very similar and likely to deceive, and will, therefore, be restrained by injunction. For the pur- pose of establishing a case of infringement it is not necessary to show that there has been the use of a mark in all respects corresponding with that which another person has acquired an exclusive right to use. If the resemblance is such as not only to show an intention to deceive, but also such as to be likely to make unwary purchasers suppose that they are purchasing the article sold by the , arty to whom the right to use the trade mark belongs. It is seldom that the mark employed by the infringer does correspond in all respects with that of the person whose rights he is attacking ; the usual practice is to introduce some colorable variation. Where a manufacturer has been in the habit of pack- ing or getting up his goods in a peculiar and distinctive PATENT LAW 39 manner, he will be entitled to restrain another from imitat- ing his packages, even though his actual trade mark is bad ; and the imitation of bottles or barrels of a pecu- liar design, such as is only used by a manufacturer, will afford presumption that fraud is intended. There may be no monopoly at all in individual things, but if they are so combined by the defendants as to pass off their goods as the plaintiff's, then the defendants have brought themselves within the old common law doc- trine, in respect ot which equity will give to the aggrieved party an injunction to restrain the defendants passing off their goods as those of the plaintiff. It has been held in America that a label on which is a representation of a box nlied with cakes of soap, wrapped in variously colored paper wrappers, and ar- ranged in a particular way, is not infringed by offering for sale boxes containing cakes of soap so wrapped and arranged. Criniinal Prosecution Under the Trade Mark Act, Notes. The expression, "trade mark," means a trade mark or industrial design, registered in accordance with the Trade Mark and Design Act, and the registration whereof is in force under the provisions of the said Act, and includes any trade mark which, either with or with- out registration, is protected by law in any British pos- session or foreign state, to which the provisions of sec- tion 103 of the Act of the United Kingdom, known as the Patents, Designs and Trade Marks Act, 1883, are in accordance with the provisions of the said Act for the time being applicable. (2) A person shall be deemed to forge a trade mark who either {a) Without the assent of the proprietor of the trade lark makes that trade mark, or a mark so resembling that trade mark, as to be calculated to deceive, or 40 PATENT LAW ib) Who falsifies any genuine trade mark, whether by alteration, addition, effacement, or otherwise, and any trade mark or mark so made or falsified is under the Trake Mark Act referred to as a forged trade mark. (3) A person shall be deemed to apply a trade mark or mark or trade description to goods, who {a) Applies it to the goods themselves, or, who applies it to any covering, label, or other thing in, or with which the goods are sold or exposed, or had in posses- sion for any purpose of sale, trade or manufacture, or, {c) Who places, encloses, or annexes any goods which are sold or exposed, or had in possession for any pur- pose of sale, trade, or manufacture, in with or to any covering, label, or other thing to which a trade mark or trade description has been applied, or {(i) Who uses a trade mark or mark or twade descrip- tion in any manner calculated to lead to the belief that the goods in connection with whiclf it is used are de- signated or described bv that trade mark or mark or trade description. (4) Every person guilty of an offence under the Trade Mark Act is liable {a) On conviction, on indictment to imprisonment, with or without hard labor, for a term not exceeding two years, or to a fine, or to both imprisonment and fine, and {b) On summary conviction to imprisonment, with or without hard labor, for a term not exceeding four months, or to a fine not exceeding $100, and in case of a second or subsequent conviction, to imprisonment, with or wilhout hard labor, for a term not exceeding six months, or to a fine not exceeding $250. {c) In any case, every chattel, article, instrument, or thing by means of or in relation to which the offence has been committed, shall be forfeited. PA TENT LA W 41 I (5) No prosecution under the Trade Mark Act shall be commenced after the expiration of three years, next after the committing of the offence, or after one year next after the first discovery thereof by the prosecutor, which ever expiration first happens. (6) Every person who falsely represents that any goods are made by a person holding a Royal Warrant or for the service of Her Majesty or any of the Royal family, or any Government Department of the United Kingdom or of Canada, is liable to summary conviction to a penalty not exceeding $100. Civil liemedy. The proper remedy at Common Law for fraud, com- mitted by means of the infringement of a trade mark belonging to a rival trader, is by an action on the case for deceit, The manner in which that form of action was made applicable to cases of trade mark, and de- veloped to meet the interests of such cases, are in some respects different from other cases of fraudulent misrep- resentation, may be well stated in the language em- ployed by Mr. Justice Mellish, who says : " In my opinion all actions of this kind must be founded upon false representations. Originally. I apprehended the right to bring an action in respect of the improper use of a trade mark arose out of the Common Law right to bring an action for a false representation, which, of course, must be a false representation made fraudulent- ly. It differed from an ordinary action for false repre- sentation in this respect, that an action for false repre- sentation is generally brought by the person to whom the false representation is inade, but in the case of the improper use of a trade mark the Common Law Courts noticed that the false representation which is made by putting another man's trade mark, or the trade name of another manufacturer on the goods which the wrong- doer sells, is calculated to do an injury, not only to the 42 PATENT LAW I •I I person to whom the false or fraudulent representation is made, but to the manufacturer whose trade mark is imitated, and, therefore, the Common Law Courts held that such a manufacturer had a right of action for the improper use of his trade mark. Then the Common Law Courts extended that doctrine one step further ; first, if I recollect rightly, in the case of Sykes v Sykes. There it was held that although the representation was perfectly true as between the original vendor and the original purchaser, in this sense, that the original pur- chaser knew perfectly well who was the real manufact- urer of the goods, and, therefore, was not deceived into believing that he had bought goods manufactured by another person ; yet if the trade mark was put on the goods for the purpose of enabling that purchaser, when he came to re-sell the goods, to deceive any one of the public into thinking that he was purchasing the goods of the manufacturer to whom the trade mark properly belorged, then that was equally a deception, a selling of goods with the false representation which would give the original user of the trade mark a right of action That was the Common Law right." An action on the case for deceit at Common Law may then be brought, not only by the person who has been induced to purchase goods manufactured by one maker in the faith that they had been manufrctured by another, but also the maker of whose manufacture the goods in question have falsely been represented to be. In Walker v Alley it was decided that the name and sign of the Golden Lion was so connected with the plaintiff's dry goods business that it could not be taken by another trader, and the Chancellor of Upper Canada said that where it is clear to the Court that the defen- dant himself thought the use of it was calculated to ad- vertise him at the expense of the plaintiff, and this was his object in using it, and where such has been the ■Mil PA TENT LA W 43 effect of the user, I think that the Court should say to him, " Remove that sign, its use by you may, as you intend, damage the plaintiff. It cannot be necessary or valuable to you for any other purpose. You lave your choice of many signs which, as a mere attraction, or to give your store a marked designation, must answer a fair business purpose equally well." lilst of Countries, The following is a list of the principal countries of the world in which an invention is patentable. Argentine Republic. Austria. Bahama Islands. JBarJxKlos. Belgium. Bolivia. Brazil. Britisli Bechuanaland. British Guinea. British Honduras. British North Borneo. Canada. Cape Colony. Ceylon. Chili. Congo P>ee State. Denmark. Ecuador. Figi Islands. Finland. France. Germany. Great Britain. Guatemala. Hawaii. Hong Kong. Hungary. India. Italy. Jamacia. Leeward Islands. Liberia. Luxumbourg. Malta. Mauritius. Mexico. Natal. Newfoundland. New South Wales. New Zealand. Norway. Orange Free State. Peru. Portugal, Queensland, Russia. St. Helena. South African Republic. South Australia. Spain. Strait's Settlements. Sweden. Switzerland. Tasmania. Trinidad. Tunis. Turkey. United States. Uruguay. Venezuela. Victoria. Western Australia. Zululand. INDEX. Advantages of Inventors 3 Advice as to Patentability .* 5 Attorneys 8 Abandoned Application 10 Appeal 10 Assignments 14 Agreements 14 Consultants 3 Cost of a Patent 6 Caveats 13 Copies of Patents 14 Canada Patent Laws 21 Criminal Prosecution 39 Ci'il Remedy 41 Danger in Delay 5 Disclaimer < ....•••• 12 Design Patents 13 Decisions of the Corn's 15 Decisions 37th Section Pa "t 22 Experiments Abandoned 17 Employers, Rights of 17 Employees, Rights of 17 Executors • 18 How to Obtain a Patent 6 Interference Proceedings 1 1 Infringement of a Patent 28 Infringement of Trade Marks 37 Licenses 14 Law of Trade Marks 34 List of Countries 43 Preliminary Examination 7 Personal Attendance 7 Policy of Patent Grants 15 Qualities of Invention 19 Records of Patents 3 Renewal of Application 10 Re-Issue , 12 Reference Library 15 Skilled Workmen 17 Trade Marks 13 United States Patent Laws 26 Value of a Patent 4 Who May Obtain a Trade Mark 13 What is a Patent? 19 Who May Obtain a Patent 19 i