and described (although not claimed) in the drawings and description of the specification of the original patent, and is thereby disclosed to the public.

On the other hand, the same court has declared that "the law authorizes a reissue when the patentee has claimed too much so as to enable him to contract his claim." Miller v. Bridgeport Brass Co. 104 U. S. 350, 26 L. ed. 783.

Inasmuch as section 4916 (§ 80, ante) of the Patent Act requires that in every case provided for in it the new (reissue) patent shall be issued "for the same invention,” the dictum of the court last above quoted, when taken in connection with that in the case of James v. Campbell, 104 U. S. 356, 26 L. ed. 786, and "the settled rule" set forth in the case of Topliff v. Topliff (previously quoted) necessarily involves the conclusion that, even when the claim of the reissue patent is less in scope than that of the original patent, the present United States Supreme Court regard the invention claimed in such reissue patent as "the same" as that "described and claimed in the original patent."

§ 87. New Legal Construction of the Statute of Reissue Incomprehensible to the Mechanic.

This new judicial construction of the law to the effect that when the scope of the claims is enlarged the reissue patent is not for "the same invention" as that for which the original patent was issued, while when the scope of the claims is reduced the reissue patent is "for the same invention" as that for which the original patent was issued, unsettled the well settled practice of the courts from the date of the earliest decision upon the validity of reissue patents, and rendered valueless an enormous

amount of patent property honestly acquired. It is possible that the correctness of the new view may commend itself to the mind trained in the subtleties of the law, but to the mind of a mechanic it is not comprehensible in view of the well known aphorism that "it is a bad rule which will not work both ways." To the mechanic, the practice under this view of the law appears analogous to the following: A man intends to sell and gives a deed for a piece of property which at its north side really measures 100 feet, but the measurement in the deed is by inadvertence, accident, or mistake, specified to be 80 feet, this error of the deed cannot be corrected, because if corrected the piece of property then specified in the reformed deed would not be "the same" as that for which the original deed was given; and this, notwithstanding the fact that the intent of the seller was to convey and the intent of the purchaser was to purchase the entire property which at the date of the transaction had its north side 100 feet broad. If however the piece of property really measures only 80 feet at its north side, but by inadvertence or mistake the measurement in the original deed is given as 100 feet, this error may be corrected, and the piece of property referred to in the reformed deed is still "the same that for which the original deed was given notwithstanding the difference in the specified measurement.

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§ 88. Objections to an Unwarranted Restriction of the Claim of a Reissue Patent.

The view that the law restricts an inventor in a reissue to claims which are equal to or no greater in scope than the claims of the original patent, thereby debarring a a reissue with an enlarged claim to which the inventor

was justly entitled at the date of his application for the original patent, does not appear to be sound for the following reasons:

1. Because no language to that effect is found in the law.

2. Because if the view that the words "the same invention” mean the invention claimed in the original patent, then a construction of the law which permits. claims narrower in scope than those of the original patent to be made upon its reissue, but at the same time forbids the making of claims broader in scope, is not only inconsistent with that part of the law which specially permits the issue of a reissue patent "for the same invention" when the scope of the claim is reduced, but is illogical; it being plain that a thing which is smaller than another is no more the same as such other, than a thing which is larger than it; and it being also plain that if the claims in the reissue are to for the same invention which is claimed in the original patent, then the scope of the claims cannot be either narrowed or enlarged by reissue, because in either case the invention so claimed would not be the same as that recited in the claim or claims of the original patent.

3. Because it involves the conclusion that the specification and claims of the original patent correctly describe and claim the real invention which the patentee invented. or discovered, and that they cannot be "insufficient” by claiming less than the real invention, and that the patentee cannot make a mistake in the statement of invention made in his original specification; whereas the statute is specially provided for cases among others in which the patent is inoperative because the specification in either its description, drawing or claim, one or

more, is "defective or insufficient;" and authorizes the. issue of a new patent with a "corrected specification" when such insufficiency has arisen from inadvertence, accident or mistake and without fraudulent or deceptive intention.

4. Because a legal construction of the language of the Act, restricting the scope of claims in a reissue to the scope of the claims of the original patent deprives the inventor of relief when his original patent is "inoperative" by reason of a specification "defective or insufficient," from an erroneous description or from claims "defective or insufficient," to protect against infringement the entire invention which he made or discovered before applying for a patent; the taking out of such an inoperative patent being the greatest "mistake" that can be committed.

5. Because to debar the patentee on a reissue from claims broader in scope than the claims or statement of invention given in the specification of the original patent, when his original application (description, drawing or model) shows that he had then described the subject matter of such broader claims, and when the patentee has sworn to their invention in his application for the reissue, and when the state of the art at the date of his original application shows he was then entitled to them, is under color of law to transform the defective claims or defective statement of invention of the patentees original patent into sophistical evidence that he did not invent that which the state of the art at the date of his original application shows he had then invented or discovered.

6. Because the said view is in conflict and inconsistent with the last clause of the same section (4916), which

in certain cases permits the insertion into the reissue of "new matter" which "was a part of the original invention and was omitted from the specification" [of the original patent] "by inadvertence, accident or mistake;" it being plain that if "new matter" is introduced into a reissue patent the invention set forth in it cannot be "the same" as was described and claimed in the original patent which did not contain this matter.

7. Because it is at variance with the practice of courts of equity in reforming instruments relating to other property.

§ 89. Understanding of the Law of Reissue by Mechanics. The view of the mechanic and inventor as to the law of reissue has always been that the law gives the inventor the right to claim in a reissue whatever he had a right to claim at the date of his original application in view of the state of the art at that date, whether the scope of the reissue claim must for that purpose be broader or narrower than that of the original patent, and whether the statement of invention in the specification of the reissue be broader or narrower in scope than the statement in the specification of the original patent; provided however that the defect or insufficiency of the original patent has arisen from inadvertence, accident, or the mistake of himself or of his solicitor who solicited the patent, or of the Patent Office officials who granted it, and without fraudulent or deceptive intention; and provided further that the subject-matter of the enlarged claim is found in his model or sample filed in the Patent Office with the application for the original patent, or in the drawings of the original patent, or in the descriptive portion of the specification thereof; and provided lastly, that