Page:Federal Reporter, 1st Series, Volume 10.djvu/924

912 FEDERAL REPORTER. �"Ail applications for patents shall be completed and prepared for examina- tion witliin two years after the flling of the petition, and in default thereof, they shall be regarded as abandoned by the parties thereto, unless it be shown, to the satisfaction of the commissioner of patents, that such delay was un avoidable." �By section 32 of the act of July 8, 1870, (16 St. at Large, 203,) it was enacted as follows : �"AU applications for patents shall be completed and prepared for examina- tiou within two years after the flling of the petition, and in default thereof or upou failure of the applicant to prosecute the same within two years after any action therein, of which notice shall have been given to the ap- plicant, they shall be regarded as abandoned by the parties thereto, unless it be shown, to the satisfaction of the commissioner, that such delay was una- voidable." �This section is substantially re-enacted in section 4894 of the Ee- vised Statutes, approved Jane 22, 1874, the only change being that the words "the filing of the petition," in section 32, are altered to the words "the filing of the application," in section 4894. On compar- ing section 32 of the act of 1870 with section 12 of the act of 1861, it is seen that a material change was made by the addition, in section 32, of the words "or upon failure of the applicant to prosecute the same within two years after any action therein." The effect of the addition was that when an applicant for a patent should make an application, and complete it for examination, and the patent-office should take action upon it and reject it, and notify him of such ac" tion, and he should fail to prosecute it within two years after such rejection, it should be regarded as abandoned, so that it eould not be resumed and prosecuted further after the lapse of such two years, unless it should be shown, to the satisfaction of the commissioner of patents, that such delay was unavoidable. It is not the invention which should be regarded as abandoned, but the application. �In the present case the application of October 28, 1874, was re- jected a second time January 2, 1875. That application was never prosecuted at all after that. More than two years elapsed, and in December, 1877, the plaintiff employed new attorneys, and gave them a power of attorney, and revoked the power of attorney given to his former attorney. A paper to that effect was filed in the pat- ent-office, December 17, 1877, in the files of the first application. The new attorneys, with the whole matter before them, advised the plaintiff that he had better make a new application. They did this, anquestionably, because they saw that they could not show to the ��� �