No. 5,136 | D. Or. | Aug 9, 1909
This is a motion for a new trial, based upon the instructions of the court touching" the alleged crime charged in the indictment, namely, perjury, anil what act or assevera-tions on the part of the defendant would render him guilty of that offense.
The indictment is drawn under section 5392 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 3053), which provides that every person who, having taken an oath before a competent tribunal, officer, etc., that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury. It is alleged in the indictment that the defendant took an oath before C. W. Hodson, a notary public, to the effect that:
“He verily believes himself to be the original, first, and sole inventor of the improvement in buckles described and claimed in the annexed specification: that ho does not know ¡mil does not believe that the same was ever known or used before his invention or discovery thereof.”
The indictment negatives the statements in the oath in the following language:
““Whereas, in truth and in fact, the said Charles A. Patterson, at the time when he so swore and made his said declaration and affidavit as aforesaid, well knew that he was not the original, first, and sole inventor of said improvement in buckles,” etc., and that he “well knew and believed that the same had been, known and used before his alleged invention and discovery thereof.”
The theory upon which the case was tried, and that upon which the court instructed the jury, was that the charge of perjury was based upon the words contained in the oath, namely:
“Unit he verily believes himself io be the original, first, and sole inventor of the improvement in buckles.”
This is indicated by the instruction of the court, as follows:
“Was it Van Emon, or was it the defendant, who was the inventor of this new improvement? Both of these men claim to be the original or first inventor of said improvement. If the defendant was the original, first, and sole inventor of such improvement, then that is ihe end of this case; because, if so, Ms oath or declaration would be true, and he would not be guilty of perjury under-tlie indictment. But if Van Emon was the original, first, and sole inventor- — and filis you must ascertain — then another question will arise, which has two aspects, namely: Whether the defendant know that Van Emon was*246 such original, first, and sole inventor, and, having such knowledge, took the oath or made the declaration in question; or, whether he had no such knowledge of such fact, but, knowing that he himself was not such inventor, verified said oath or declaration — because in either event he could, not have believed the alleged facts stated in said oath or declaration to be true.”
It will be seen that the word “sole” has a material bearing, both on the theory upon which the case was tried and on that upon which it was put to the jury by the instruction of the court. If perjury cannot be predicated upon the use of that word, in connection with the words “original” and “first,” the oath having been made in a proceeding to obtain a patent, then a new trial should be granted; otherwise, it must be conceded that the judgment is proper: The theory upon which the court proceeded is that the oath was taken in an inquiry before the Commissioner of Patents as to whether a patent should issue for this improvement in buckles to Patterson, the applicant for the patent.
“Any person wbo bas invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any newr and useful improvements thereof, not known or used by others in this country, before his invention or discovery thereof, and not patented or described in any printed publication in this or any foreign country, before his invention or discovery thereof, or more than two years prior to his application, and not in public use or on' sale in this country for more than two years prior to his application, unless the same is proved to have been abandoned, may, upon payment of the fees required by law, and other due proceeding had, obtain a patent therefor.” Section 4886, Rev. St. (U. S. Comp. St. 1901, p. 3382).
It is further provided (section 4888, Rev. St. [U. S. Comp. St 1901, p. 3383]) that, before any inventor or discoverer shall receive a patent for his invention or discovery, he shall make application therefor, in writing, to the Commissioner of Patents (specifying what the application shall contain), which application shall be signed by the inventor and attested by two witnesses. Then follows the requirement of section 4892 (page 3384), which is as follows:
“The applicant shall make oath that he does verily believe himself to be the original and first inventor or discoverer of the art, machine, manufacture, composition, or improvement for which he solicits a patent; that he does not know and does not believe that the same was ever before known or used.”
Then by section 4893:
“On the filing of any such application and the payment of the fees required by law, the Commissioner of Patents shall cause an examination to be made of the alleged new invention or discovery; and if on such examination it shall appear that the claimant is justly entitled to a patent under the law, and that the same is sufficiently useful and important, the Commissioner shall issue a patent therefor.”
It is plain to be seen from these statutes that the Commissioner of Patents has a very important duty to perform in this relation, namely, that of an examination of the application and proofs, for a "determination as to whether or not the applicant is entitled to the patent applied for. It seems to me, therefore,, that the subscribing of the oath in question was the production of matter material to that inquiry, and a false oath taken with reference-thereto would bring the case within the intendment of section 5392 of the Revised Statutes, and
By rule 46 adopted by the Commissioner of Patents, with the approval of the Secretary of the Interior:
“Ilie applicant, if the inventor, must make oath or affirmation that he does verily believe himself to be the original and first inventor or discoverer of the art, machine, manufacture, composition, or improvement for which he solicits a patent; that he does not know and does not believe that the same was ever before known or used, and shall state of what country he is a citizen and where he resides, and whether he is a sole or joint inventor of the invention claimed in his application.”
This rule, if not authorized by law, of course, could not make that perjury which is not constituted perjury, under the statute of Congress. One of the purposes of the inquiry, as indicated by the rule, was to determine whether the applicant was the sole inventor, or whether he had invented a device jointly with some one else. If he were jointly interested with some one else, it is plain that he would not be entitled to a patent in his own right; so that this condition was one very material to the inquiry before the Commissioner of Patents. The Commissioner, if it had appeared by the application in question and under the affidavit made by the defendant, Patterson, that he was a joint inventor with some other person, would not have issued him any patent at all, or else would have issued the same to Patterson jointly with the other individual entitled with him to an in • terest therein. So it is the us,e of the word “sole” was a thing material and important in the inquiry being made, and that an oath taken with reference thereto, if false, constituted perjury under section 5392. After all, the word “sole” is a shorter way of saying that the applicant does not know and does not believe that the same, name ■ ly the invention, was ever before known or used.. If the applicant was a joint inventor with some one else, it follows, without question,' that it would have been previously known and used. Hence the word “sole” means the same thing, practically, as is couched by signification in the clause just alluded to. But it seems to me, however, that the use of the word “sole” in the affidavit as subscribed, in connection with the words “original” and “first,” has a significant and material bearing in the inquiry which was then being prosecuted before the Commissioner of Patents, and that a false oath with reference thereto renders the affiant guilty of perjury.
I am familiar with the doctrine as announced in the cases of Williamson v. United States, 207 U.S. 425" court="SCOTUS" date_filed="1908-01-06" href="https://app.midpage.ai/document/williamson-v-united-states-96744?utm_source=webapp" opinion_id="96744">207 U. S. 425, 28 Sup. Ct. 163, 52 L. Ed. 278" court="SCOTUS" date_filed="1908-01-06" href="https://app.midpage.ai/document/williamson-v-united-states-96744?utm_source=webapp" opinion_id="96744">52 L. Ed. 278, and Robnett v. United States (C. C. A.) 169 F. 778" court="9th Cir." date_filed="1909-05-10" href="https://app.midpage.ai/document/robnett-v-united-states-8770871?utm_source=webapp" opinion_id="8770871">169 Fed. 778; but in those cases the oath was taken with reference to matter not deemed material to the inquiry, and it seems to me they do not have aooli-cation here.
For these reasons, the motion for a new trial will be denied.
For other cases see same topic & § number in Dec. & Am, Digs. 1007 to date, & Rep’r Indexes