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FOURTH EDITION, 1895,

Cable Address : ** Richelieu, Toronto."

HAND : BOOK

ON :

: PATENT :

AND

TRADE MARK LAV/

: OF

CANADA AND UNITED STATES.

Entered according to the Act of the Parliament of Canada, in the year 1H!)5 ,
by C. H. Riches, of Toronto, at the Department of Agriculture.

/iV

* * *

CHARLES H. RICHES, Solicitor of Patents

46-52 KiNC. Street West, Canada Life Building.

1. I desire to call your attention to the fact, that I
devote myself exclusively to the transaction of business
for Inventors and Patentees. I have direct agencies
and correspondents in almost every country in the world
that grants patent and trade-mark protection, and am
prepared to attend to all manner of work in this line.

2. I respectfully solicit your orders, and promise you
promptness, fidelity and despatch in the transaction of
any business that you may entrust to me.

3. Re/Service — My agents have been .elected with
the utmost care, and arc, in every instance, the best and
most reliable I have ever been able to find in their re-
spective countries, and I can vouch for the proper and
careful treatment of applications that they may prosecute.

4. Re/Charges — I believe you will find my charges
moderate and satisfactory. I am aware that in some
instances my charges are somewhat higher than those I
have seen quoted by other agents. They are, however,
as low as can be given and the best class of work secured.

CHAS. H. RICHES.

Canada Life Building,

46-52 King Street W., Toronto, Can.

Atlvantaf/es Inventors Have in Procurinj/ Their

Patents Tt rough

u
)f

s
e

CHAS. H. RICHES.

The location of the Home Office is central,
and in addition to the Home Office I have as-
sociate offices in Washington, D.C. ; London,
England ; Berlin, Germany ; and Melbourne,
Australia ; and sub-associate offices at the cap-
ital of every country having a patent law.

As my Associates at these agencies are pat-
ent solicitors of long standing, high reputation
and well known integrity, such a thing as the
betrayal of a client's interests has never oc-
cured, and is never likely to occur, and all bus-
iness aid communications intrusted to me or
to them are kept secret and confidential.

Consultants,

The staff of consultants in the various branches of
art and science are employed whtn required in order to
give my clients the benefit of the best talent in prepar-
ing cases.

Records of Patents,

A complete record of all the patents issued
from the inception of the Patent Office of the
United States in the year 1 790 until the present
week, also of the Canadian Patent Office, in
the year 1824, until the present time, is kept
on file at the Home Office, showing the state
of the art in any class, for aid in making pre-

PATENT LAW

liminary examination and in preparing new
cases.

This reference library is at the disposal of
the inventors, patentees, and all interested in
patents or inventions, and can be examined
any day during business hours ^^^ of charge.

Value of a Patent,

In an official report a chief examiner of the Patent
Office of the United States says: "A patent, if it is
worth anything, when properly managed, is worth and
can be easily sold for from $10,000 to $50,000."

These remarks apply only to patents of ordinary or
minor value. They do not include such as the tele-
graph, the plaining machine, and the rubber patents,
which are worth millions of dollars each. A few cases
of the first kind will better illustrate my meaning :

A man obtained a patent for a slight improvement in
straw cutters, took the model of invention through the
Western States, and after a tour of eight months returned
with $40,000 in cash, or its equivalent.

Another inventor obtained an extension of a patent for a
machine to thrash and clean grain, and sold it in about
fifteen months for $60,000.

A third obtained a patent for a printing ink and refused
$50,000 for it, and finally sold it for $60,000.

These are ordinary values of minor inventions em-
bracing no very considerable inventive power, and re-
quiring no great outlay of money or time to perfect.

Experience shows that the most profitable patents
are those which contain very little real invention, and
are to an ordinary observer of very little real value.

PATE XT LAW 5

Danyer in Delay,

An inventor should make it imperative to have his
application for letters patent prepared and filed as early
as possible after he has completed his invention.

I have known instances where an inventor completed
his invention and delayed patenting the same for six
months, during which period another inventor over
twelve hundred miles away conceived the same idea
and patented it, and thus completely shut out the first
inventor. In this instance two men conceived the same
idea about the same time, and whilst one man delayed
securing his rights, the other man obtained his Patent
of Invention.

When the fact is taken into consideration that there
are over 500,000 living inventors on this continent, it
will readily be understood that it is possible for several
minds to run in the same channel. I have also known
of instances where an inventor had perfected his inven-
tion and exhibited it to his friends who stole it from
him and patented it in their own names.

It will thus be seen that an inventor, by delaying to
patent his invention, runs a very great risk of losing ft
altogether, solely by delay.

Advice as to the Patentahility of an Invention,

On making an invention, the first point to be deter-
mined is whether it be a proper subject for a patent.
To obtain this information, the intending applicant is
invited to put the invention fully before me, as freely
and clearly as possible, accompanied, if the invention
be a mechanical one, by a sketch or model. A careful
answer will be forwarded to him, usually by return mail,
informing him as to the patentability of the invention —
how to protect it and the like— /?r^ of charge.

PATENT LAW

Hoiv to Obtain a i*nt€Ht,

Send me a drawing, model or specimen of the in-
vention with a full explanation of the parts claimed as
new, accompanied with a post-office order to cover the
charges for preparing the application, together witl- a
statement setting forth all the advantages of the inven-
tion over similar devices as far as known. The
drawings and specifications will then be prepared and
the necessary documents will be sent for execution, with
full instructions, for signing.

A drawing, showing clearly the minute conLtruction
of the invention, is always required in cases where the
invention admits of such representation Upon return
of the papers, the application will be filed in the Patent
Office where it will receive very careful and assiduous
attention in removing any difficulties that may be
encountered during the examination, and it is in this
particular that the chief labor of the attorney is
involved.

Cost of an Ajtj^Ucation for Letters Patent,

As the cost of a patent varies according to the nature
of the invention, it is not possible to herein state defin-
itely what the cost will be, but the probable cost of an
application for Letters Patent of Invention for any
country will be gladly furnished on application, and the
charges will be found to be as moderate as possible,
consistent with the care and attention given the appli-
cation whilst under my control.

As nearly nil the fees payable to the Patent Office
are positively required by law to be paid in advance,
that is, upon making application for any action by the
office for which a fee is payable, these Government fees,
together with my fees for preparing the application, are
required to be paid by the applicant in advance. •

PATENT LAW 7

As the total cost of an application for Letters Patent
is charged the inventor in the first instance, no charges
for extras will be demanded, however arduous the
labor, except in cases of appeal from the primary
examiner when his decision is deemed to be in error,
when an estimate of the probable cost of the appeal will
be furnished the applicant before entering upon that
expense. The best services are rendered for the most
moderate fees, and no facilities are claimed at any of
the "Patent Offices" other than possessed by other
reliable firms.

Preliniitiarjf Exainination,

A preliminary examination or search should be made
in every case, unless the invention should be of such a
decidedly novel character as to render such a search
useless or unless there is speqal reason for avoiding this
brief delay.

Such an examination consists in a search through
the accessible records of the Patent Office to ascertain
whether any imitation of the invention desired to be
protected can be found. It generally settles conclus-
ively the patentability or non-patentability of an inven-
tion ; but it sometimes happens that. examinations are
obstructed by inaccessible descriptions, foreign patents,
caveats, or pending applications in the secret archives
ofthe Patent Office.

When ordering a preliminary examination, send me
a careful sketch and a brief description of the invention
and my fee, when a thorough search will be made and
the results of the investigation promptly reported.

Persouftl Attendance at the Patent Office

Unnecessary,

Some inventors very naturally suppose that if per-
sonally present at the Patent Office they can get their

PATENT LAW

cases through more expeditiously, or command more
important facilities. But this is not so. The journey
to the Patent Office is usually a mere waste of time and
money. A reliable attorney must be employed after
the inventor reaches there. No one can possibly have
facilities other than possessed by all reliable patent
solicitors, and any attorney stating that it is possible by
personal attendance to have the application rushed
through more expeditiously, does so maliciously or for
the purpose of obtaining money for travelling expenses
from the inventor by fraudulent means.

Attome 18,

On account of the multifarious patents granted and
the necessity of making nice and strong distinctions
between kindred inventions, great skill and judgment
are required in describing cind claiming the thing to be
patented so as to secure to the inventor as broad, and at
the same time as valid protection as the state of the art
will allow.

The following is published by the Commissioner of
Patents in the official rules of practice of the United
States Patent Office :

As the value of the patent depends largely upon the care-
ful preparation of the specifications and claims, the assist-
ance oi competent counsel will, in most cases, be of advantage
to the applicant ; but the value of their services will be
proportionate to their skill and honesty^ and too much care
cannot be exercised in their selection.

Where establishments are organized for the purpose of
procuring patents, they are apt to become more solicitous
about the number than the quality of those which they
obtain. This tendency is aggravated by those who solicit
patents upon contingent fees^ or who without special training
or qualifications adopt this business as incident to a claim
agency, and press for patents as they press for back pay
and pensions. Such men are often more desirous of

PATENT LAW

obtaining a patent of any kind and by any means, than they
are ol obtaining one which shall be of any value to their
clients. Inventors are often poor, uneducated and lacking
in legal knowledge. They desire a cheap solicitor^ and do
not know how to choose a good one. They are pleased
with the parchment and seal, and are not themselves able
to judge of the scope or value of the Grant. Honest and
skilful solicitors, with a thorough knowledge of the practice
of the Office and Patent Law, who are able and willing to
advise their clients as to the exact value of the patents
which they can obtain for ihem, may be of much service to
inventors. There are many such ; but those who care for
nothing but to give them somethl/ig called a patent, that
they may secure their own fee, have in too many instances,
proved a curse. To get rid of their client and of trouble,
they have sometimes been cor i^nt to take less than he was
entitled to, while in many cases they have with much self-
laL'dation, presented him with the shadow when the sub-
stance was beyond reach. Between such men and the
Patent Office the strife is constant. They have the ear of
their client, and to some extent of the public, and much of
the misrepresentation of ihe spirit and character of the
work of the office is directly traceable to this source.

The drawing up to the specification is an operation which
requires the utmost care, skill and attention, for the
validity of the patent will depend on this document being
clear, explicit and circumstantial. Few inventors will ven-
ture to assume a task which is calculated to try the capacity
and experience of the most able and professional man. —
J^raser.

The Supreme Court of the United States, in a recent
decision, used the following language :

"The growth of tlie patent system in the last quarter of
a century in this country has reached a stage in iis progress
where the variety and magnitude of the interests involved
require accuracy, precision and care in the preparation of
all papers on which the patent is founded. "

PATENT LAW
Renewal of Forfeited Applicatiotis,

If from any cause the final fee should not have been
paid within the prescribed time, the patent will be with-
held, but at any time within two years after the date of
alloivance the application may be renewed on repay-
ment of the Government fee, and necessary charges
for that service.

Ahaudoned ApplUmtion,

A rejected application which has become " aban-
doned" by inaction for two years constitutes no bar to
a new application, provided the device has not been in
public use or on sale for more than two years. The
original papers, if applicable, may be used.

Appeal In Case of Rejected AppUcatioiis,— United

States,

It frequently happens that, owing to some misunder-
standing or for other reasons, the Examiner rejects an
application when their is real merit in the case. Such
applications, when entrusted to me, have been prose-
cuted with almost invariable success after failure in
other hands. For an examinacion and prosecution of
a rejected application not prepared by me, send me a
statement of the date of filing, if known, a power of
attorney, and my fee, which will be stated on applica-
tion. This fee pays for a thorough investigation and
report as to the conditions and prospects of the applica-
tion ; and the prosecution of the case before the Pat-
ent Office.

Should an application be finally rejected by a prim-
ary examiner, without reason satisfactory to the appli-
cant, an appeal may be taken to the Appeal Board,
consisting of three Examiners-in-Chief, on payment of

♦

PATENT LAW

the Government fee. Such an appeal, if properly con-
ducted, generally effects the desired result. But the
presentation and argument of a case before the Board
requires great care and experience as well as a thor-
ough knowledge of Patent Law and the state of the
Art. In these cases a reasonable fee will be charged,
proportionate to the labor involved in fully presenting
and prosecuting the appeal

From an adverse decision of the Board, an appeal
lies to the Commissioner, on payment of the Govern-
ment fee, and from the Commissioner to the Supreme
Court of the District of Columbia. In each of these
actions the fee will be agreed upon by special arrange-
ment, and will always be as low as compatible with
thorough professional management.

Interference Proceedings,

This is a judicial proceeding to determine the ques-
of priority of invention ^3etween rival applicants.

Whenever an application is made which interferes
with any pending application, or with any unexpired
patent, notice thereof is given to the applicants, or ap-
plicant and patentee, as the case may be ; a prelimin-
ary interference being declared and a tim? set by which
the interferents shall file concise statements, giving date
of the original conception of the invention, of its illus-
tration by drawing or model, of its disclosure to others,
of its completion, and of the extent of its use. Hence,
inventors should bear in mind the importance of making
an early attested record of their discoveries.

After the expiration of the time set for preliminary
statements, the Examiper-of-Interferences, if still of the
opinion that the applications conflict, declares a full in-
terference. Testimony is then taken by each party,
and the case is heard b> the Examiner-of-Interference,

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

♦

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.

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.

■M

PATENT LAW

Iteference TAhrar^f,

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.

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

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

PATENT LAW

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).

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

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. .

PATENT LAW
What is a Patent?

.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.

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.

PATENT LAW

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.

ii\

iS.M-Mf^''"'''"'-^'^-^' *"'-'•"'"■ '•-'*'" '^'"-^ i:',:»^«

PATENT LAW

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

!■

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

PA TENT LA W

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..<JI JLi

iZS

' i

24 PATENT LAW

number of the patented articles, and amounted in
the aggregate to a large sum, many thousands of
dollars. " It seems hard," says the counsel of the
respondent, "after the Company trying for so
many years to introduce this invention into the
country that the patent should be set aside. It is
undoubtedly very hard. If it were a matter of
sympathy or sentiment in all probability the paten-
lee vv ould continue to enjoy the privileges to which
inventors are so well entitled, but it is a matter of
the fulfilment of the obligations and administration
of the law, in the case where no legitimate doubt
can come to the rescue of a patent. It is therefore
decided that the patent has become null and void
under provisions of the Patent Act."

{g) In the suit of Wright v Bell Tel. Co., the
patents on the Blake Transmitter, owned by the
Blake Telephone Co. of Canada, were declared void
for alleged forfeiture on the grounds of importation
contrary to the provisions of the Patent Act, and
for failure to manufacture the same within the time
prescribed.

Every person 5. Every person who, before the issuing of a

^^^"^""S a patent has purchased, constructed or acquired any

veruion before invention for which a patent is afterwards obtained,

the issue of under this Act shall have the right of using and

the patent vending to others the specific article, machine,

rieht toTse^or rn^nufacture, or composition of matter patented,

sell it. and so purchased, constructed or acquired, before

the issue of the patent therefor, without being

liable to the patentee or his legal representatives

for so doing, but the patent shall not as regards

other persons be held invalid by reason of such

purchase, construction, acquisition, or use of the

invention, by the person first aforesaid, or by those

to whom he has sold the same, unless the same

Wright vs.
The Bell Tele
phone Co.

PATENT LAW

was purchased, constructed, acquired, or used
with the consent or allowance of the inventor
thereof, for a longer period than one year before the
application for a patent therefor, making the in-
vention one which has become public and in public
use, in which case the patent would be void, and
the public have the right to use the invention
without being liable to the patentee or his legal
representatives for so doing.

6. Every patentee shall stamp or engrave on Every paten-
each patented article sold or offered for sale by him ^^^ shall

the word " Patented " together with the year of ^^^^^^^^'^^fl'
the date of the patent applying to such article, ented, to-
Thus, "Patented 1895," o^' 3-s the case may be ; gether with
or when from the nature of the article this cannot ^^^ ^^^^ oi'Cao^

11 ii_ 1 re • J. 'i. 1. 1 patent on each

be done, then by amxmg to it or to every package patented
wherein one or more of such articles is or are en- article,
closed, a label marked with a like notice ; and any
such patentee selling or offering for sale any such
patented articles not so marked or not enclosed in
a package so marked shall be liable to a penalty
not exceeding $100, and in default of the payment
of such penalty, to an imprisonment for a term not
exceeding two months, or to both fine and im-
prisonment.

7. Every person who writes, paints, prints, ^s^n'^^th^^^"
n.oulds, casts and engraves, stamps, or otherwise word Patent-
marks upon anything made or sold by him, and ed, etc., on an
for the sole, making or selling of which he is not^'^^^*^^^ ""^^
the patentee, the name or any imitation of the {j^j^^jg^^Q '^^^j^^
name of any patentee for the sole making or selling of $200 and
of such thing, without the consent of such patentee, three months'
or, who, without the consent of the patentee, imprisonment,
writes, paints, prints, moulds, casts, carves, en-
graves, stamps, or otherwise marks upon anything

not purchased from the patentee the words *' patent,

PATENT LAW

What consti-
iiiles inven-
tion.

f-'u
(I "I

rhs

letters patent, Queen's patent, patented," or any
word or words of like import, with the intent of
counterfeiting or imitating the stamp, mark or
device of the patentee, or of deceiving the public,
and inducing them to believe that the thing in
question was made and sold by or with the con-
sent of the patentee or his legal representatives, or
who offers for sale as patented any article not
patented in Canada, for the purpose of deceiving
the public, is guilty of a misdemeanor and liable to
a fine not exceeding $200, or to imprisonment for a
term not exceeding three months, or to both.

United States Patent Laws,

Note. Under the Patent Act of the United
States there is no obligation on the patentee either
to manufacture the invention in the United States
within a stated period or to cease the importation
of the patented invention into the States after the
expiry of any lapse of time. The patentee under
the U. S. Patent Act is at liberty to either manu-
facture or sell the invention or not, as he sees fit,
and may, if he so desires, refuse the sale of the
patented invention entirely, without affecting the
validity of his patent,

9. Any person who has invented or discovered
any new and useful art, machine, manufacture or
composition of matter^ or any new and useful im-
provement thereon, not known or used by others
in the United States, and not patented by others,
or described in any printed publication in the
United States or any country foreign to the
United States before his invention or discovery
thereof, and not in public use or on sale in the
United States for more than two years prior to
the application for a patent therefor, unless the

PATENT LAW

same is proved to be abandoned, may upon pay-
ment of the fees required by law and other due
proceedings had, obtain a patent therefor.

10. No person shall be debarred from receiving May patent
a patent for his invention or discovery nor shall f'^^ invention
any patent be declared invalid by reason of its country^i)?fore
having been first patented or caused to be patented patenting it in
in a foreign country, unless the same has been in-i'ie U.S.
troduced into public use in the United States for

more than two years prior to the application. But
every patent granted for an invention which has
been previously patented in a foreign country shall
be so limited as to expire at the same time that
the one having the shortest term expires, and in
no case shall the United States patent be in force
more than seventeen years.

11. Every person who purchases of the inventor No liability
or discoverer, or, with his knowledge and consent, fo'' "^ing the
constructs any newly invented or discovered ^gJ,^^J)J^^'""^j.
machine, or other patentable article, prior to the to the issue of
application by the inventor or discoverer for a the patent.
patent, or who sells or uses one so constructed,

shall have the right to use, and vend to others to
be used, the specific thing so made or purchased,
without liability therefor.

12. It shall be the duty of all patentees, and Must mark
their assigns and legal representatives, and of all |J^^ ^^""^
persons making or vending any patented article gether wiih°
for or under them, to give sufficient notice to the the day and
public that the same is patented ; either by fixing year on each
thereon the word " patented," together with the pa\ented
day and year the patent was granted ; or when,

from the character of the article, this can be done,
by fixing to it, or to the package wherein one or
more of them is enclosed, a label containing a like
notice; and in any suit for infrngement, by the

^ss^s

¥'i

Fraudulent
use of the
name of
patentee.

Fraudulent
use of the
word
Patent, etc.

28 PATENT LAW

party failing so to mark, no damages shall be re-
covered by the plaintiff, except on proof that the
defendant was duly notified of the infringement,
and continued, after such notice, to make, use, or
vend the article so patented.

13. Every person who, in any manner, marks
upon anything made, used or sold by him for
which he has not obtained a patent, the name or
any imitation of the name of any person who has
obtained a patent therefor, without the consent of
such patentee, or his assigns or legal represen-
tatives ; or —

Who, in any manner, marks upon or affixes to
any such patented article the word " patent " or
" patentee," or the words " letters patent," or any
word or words of like import, with intent to imitate
or counterfeit the mark or device of the patentee,
without having the license or consent of such
patentee or his assigns or legal representatives ; or

Wrongfully ^ Who, in any manner, marks upon or affixes to
any unpatented article the word "patent," or any
word importing that the same is patented for the
purpose of deceiving the public, shall be liable, for
every such offence, to a penalty of not less than
one hundred dollars, with costs ; one-half of said
penalty to the person who shall sue for the same,
and the other to the use of the United States, to
be recovered by suit in any district court of the
United States within whose jurisdiction such
offence m.ay have been committed.

Infringe^nent of a Patent,

14. Note. Litigation of this character requires
the exercise of most experienced judgment and
skill, and I would advise anyone intending to en-

uses the word
Patent on an
unpatented
article.

PA TENT LA IV

Patent in-
fringed by
making, using
or selling.

Infringement
to make for
use or sale.

gage in litigation, whether as plaintiff or defendant,
to take the precautionary step of having a special
investigation made to ascertain what would be the
probable issue of a suit based upon the alleged
infringement. I am prepared to make these
special investigations and assist in the prosecution
or defence of suits for infringement of patents in
any part of the country.

15. There are three ways in which a patent may
be infringed. First, by making the patented
article or working the patented process ; second, by
using the patented article, and third, by selling
the patented article.

16. When a machine is the subject of a patent,
the patent covers both the machine itself, and the
mode n»* process of making it. The Statute vests
in the patentee the exclusive right of making it,
the exclusive right of using it, and the exclusive
right of selling it to others to be used. It is, there-
fore, an infringement to make a patented machine
for use or for sale, though in fact it is neither used
nor sold. It is an infringement to use it, though
made by another, and it is an infringement to sell
it, whether made by oneself or by another, because
the Statute vests the exclusive right of doing all
these things in the patentee.

17. As to the sale of a patented machine, in
order to be an infringement of the patent it must
be something more than a sale of the materials,
either separate or combined. It must be a sale of
a complete machine for use as a machine which is
patented, in order to render the vendor liable for
an infringement of the patent by a sale.

18. Where the subject of a patent is a machine,
the using it is altogether prohibited by the Statute,
because it intends to vest in the patentee the full

PATENT LAW

enjoyment of the fruits of his invention bolh in the
practice of making the machine and of producing
the effect or result intended to be produced by it.

19. Where an order was given to the defend- ^'""'^"'^^ of ^
ants by a third person to manufacture a patented ^^achlne or
article on a model furnished by him and the order process,
was executed, it was held that the defendants

were guilty of an infringement, although when
they began to execute the order they had no
knowledge of the plaintiff's patent.

20. The sale of the articles produced by a pat- Infrmgement

., ,. 1 i-i--iiofa manufac-

ented machine or by a process which is patented, ture or com-
is not an infringement, unless the product of the position of
machine or process is protected by a separate pat- matter.
ent, or by a claim or claims in the patent protect-
ing the machine or process.

21. As to a manufacture or composition of mat- Scope of a
ter. Assuming that the word is used in our Stat- patent on a
ute to describe the vendible and tangible product ^^^7^°^'^'°" ''^
of any branch of industry, a patent for a manufac-
ture will be infringed by the same acts as a patent

for a composition of matter, that is, by making,
using, or selling the thing itself, or by importing it
from a foreign country where it has been made.

22. Whether the using or vending of a patented
composition is a violation of the right of the pro-
prietor can be considered to extend to every form
of use, so as to give the proprietor the right to
maintain an action, is worthy of consideration.
If a patented medicine is made by one not auth-
orized to make it and is sold to a person who con-
g.i.i 't, it would be a somewhat inconvenient re-
30 n>, 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

Inl
of]

nt
ic-
1-

PATENT LAW

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.

PATENT LAW

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

PATENT LAW

2nt

Patent for
distinct im-
provements.

A patent not
infringed
when not in
existence

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

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

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 :

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,

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

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

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

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

(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

PATENT LAW

•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

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