504
THE GREEN BAG
certiorari. Thus every applicant for a patent may have seven tribunals pass on the question of whether or not he is entitled to a patent before he is definitely certain that he has secured the priina facie rights to which he is entitled. And the govern ment, out of its very fairness in providing so many courts by whom the applicant may be heard before he is precluded from his grant, has provided such an expensive machine that it is impossible for the average inventor to take advantage of it and it puts in the hands of a strong financial institution owning an application a decided advantage disastrous to the person of limited means. Assuming that the patentee has been able to traverse the entire course of procedure open to him and has been held entitled to the broad claim for which he is contending, by the tribunal to which he last appeals in his efforts to obtain his rights, and that the matter is a contested one between rival claimants for the title to inventorship, the applicant has his application for a patent again subjected to re-examination, and new references may be cited by the Patent Office, as anticipating the invention claimed, and if the reference is a pertinent one, the entire procedure may be repeated, leaving, in theory at least, no final termination to the matter until the applicant has exhausted his energies and finances. Within my personal experience, an appli cant whom we were representing was ruled adversely to, in an interference case, by the three tribunals of the Patent Office, and on appeal to the Court of Appeals of the District of Columbia the entire action of the Patent Office was reversed by a ruling that we were entitled to a decision of priority of invention on a technical question of reduction to practice. In this particular case this ended the interference proceeding, but upon presenting the application to the Examiner for re-exami nation prior to the allowance of the patent, new references were brought out, undis covered during the preliminary examination
and interference proceeding upon which the case was again rejected, necessitating a further expensive proceeding. After the patentee has gone through the long procedure sometimes necessary in pro curing a patent, what is his priina facie right? Normally, under the Statutes and court rulings set out at the commencement of this article, the patentee and his heirs have the exclusive right to make, use, and vend the invention or discovery throughout the United States and its territories for a period of seventeen years under government grant. It will be seen from the above language, and particularly from the decision of Judge Baker, above referred to, that the patentee has, as a basis of his priina facie privileges, the right to advertise, sell, license, fix prices, and control the sale of his article, in an almost unlimited way, even to the entire restriction of the sale, whether the patent is valid or invalid, for he is, in the language of Judge Baker, "Czar for these purposes "; but in the usual patent case, and assuming that he is trying to obtain immediate relief against infringers by applying for a tempo rary injunction, we find that this same Czar has a very narrow realm and peculiarly limited powers within that realm. In other words, he is a power for injury to others and to the community but is impotent for legitimate good to himself. In the courts this prima facie right of the patentee seems to be largely limited to his right to bring an action at law, or a suit in equity, for infringement against any one who makes, sells, or uses the device covered by his claims. It allows him the privilege of using the United States courts for this purpose, and if at the end of an extremely long and harassing litigation his patent is held valid and infringed, by the Circuit Court or Circuit Court of Appeals, he has usually established a prima facie right which enables him to secure a comparatively quick relief against an infringer making substantially the same device, assuming
