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"All that can be secured for an American inventor under the German law is the right to obtain a patent in Germany if the application be made within three months from the date of the publication of the American patent. This benefit of the German law extends only to those States which warrant reciprocity, according to a publication in the Reichsgesetzblatt. The benefit, then, is not granted until the publication of a notification that such reciprocity exists.
“ Now, under American law the German inventor has more than the German law would give an American inventor if it were declared that reciprocity exists; for a German inventor may apply in America for a patent for his invention at any time during the life of his German patent unless he has permitted his invention to be in public use in the United States for more than two years prior to his application, so that he has in any event two years in which to apply, while the American inventor could only get a patent in Germany by applying within three months from the time of getting his American patent.
" The claim that reciprocity does not exist is, according to Baron von Ketteler's note of September 15, 1892, based on two grounds.
- First. That to obtain a patent in the United States the German applicant must swear that he is the inventor, while in Germany patent is granted to the inventor or anyone who has legally come into possession of the invention.
- Second. That the right of caveat is confined to American citizens and not granted to German subjects.
* When this subject was previously under discussion here it was suggested by the Imperial Government that it be left for adjustment under the proposed new treaty between the United States and Gerinany in regard to patents and trade-marks. That treaty has not yet been agreed upon, and my instructions are to endeavor to reach an understanding with the German Government separately and apart from that treaty (which involves other things) whereby American citizens may enjoy the benefit of the German law before referred to.”
Memorandum handed by the American ambassador, at Berlin, to the Ger
man Government, Oct. 19, 1894. For. Rel. 1895, I. 529. “ The negotiation of a treaty for the reciprocal protection of patents, trade
marks, and designs has been the subject of correspondence between this Government and that of Germany for a number of years past without so far reaching a conclusion satisfactory to both Governments." (Mr. Adee, Second Assist. Sec. of State, to Mr. Brown, Nov.
1, 1897, 222 MS. Dom. Let. 131.) This was a controversy relating to a trade-mark for protective paint for ship’s bottom. The court held:
(1) That no valid trade-mark was proved on that part of the Rahtjens Company in connection with paint sent from Germany to their agents in the United States prior to 1873, when they procured a patent in England for their composition;
(2) That no right to a trade-mark which includes the word “patent," and which describes the article as “ patented," can arise when there has been no patent;
(3) That a symbol or label claimed as a trade-mark, so constituted or worded as to make or contain a distinct assertion which is false, will not be recognized, and no right to its exclusive use can be maintained ;
(4) That of necessity when the right to manufacture became public, the right to use the only word descriptive of the article manufactured became public also;
(5) That no right to the exclusive use in the United States of the words “ Rahtjen's Compositions” has been shown.
Holzapfel's Co. v. Rahtjen's Co. (1901), 183 U. S. 1.
March 20, 1883, a convention for the protection of industrial propIndustrial prop- erty was concluded at Paris between Belgium, Brazil, erty union.
France, Guatemala, Italy, the Netherlands, Portugal, Salvador, Spain, and Switzerland. It was subsequently acceded to by the Dominican Republic, Great Britain, Sweden and Norway, the United States, and Tunis, while Salvador withdrew. See, as to the accession of the United States, For. Rel. 1887, 1067.
A supplemental convention was signed at Madrid April 15, 1891.
An additional act modifying the convention of March 20, 1883, was signed at Brussels December 14, 1900, the signatory powers being Belgium, Brazil, Denmark, Dominican Republic, France, Great Britain, Italy, Japan, the Netherlands, Portugal, Servia, Spain, Sweden and Norway, Switzerland, the United States, and Tunis.
The convention of 1883 provided (Art. II.) that the citizens or subjects of the contracting states should enjoy in the various states of the union, so far as concerned patents for inventions, trade or commercial marks, and the commercial name, such advantages as the respective laws of those states then accorded or should thereafter accord to citizens or subjects.
The British merchandise-marks act, 1887, designed “to carry out in their complete spirit the principles ” of the convention, is printed in For. Rel. 1887, 546.
See, as to certain proposed additional articles to the convention, For. Rel. 1887, 636.
“I have the honor to acknowledge the receipt of your note of the 27th ultimo, enclosing a circular received by you from Her Majesty's principal secretary of state for foreign affairs, enquiring as to the manner in which effect is given in the United States to the stipulations contained in the International Convention for the Protection of Industrial Property of March 20, 1883, and what protection is afforded foreigners in the matter of patents, trade-marks, &c.
“ The first question asked by Her Majesty's Government is understood to be in effect whether the convention referred to has immediately force of law by virtue of the accession of this Government, or whether it only becomes of effect, as in England, by virtue of separate legislative enactments.
* In reply it may be said that by virtue of legislative enactments already in existence at the time of the adhesion of the United States to the convention, its general provisions, so far as they are effectual at all, cook effect at once. These general provisions are contained in Article II. of the convention, and provide for the reciprocal enjoyment by the subjects and citizens of each of the contracting states of all rights in all the other states, that they accord to their own subjects and citizens, in respect to patents, trade-marks, and other industrial property.
“ So far as concerns patents for inventions and designs the United States statutes already extend to every person all the rights which American citizens possess. Sections 4886 and 4929 of the Revised Statutes give the privilege of obtaining patents to 'any person, no
' discrimination being made against foreigners.
“ With respect to trade-marks, section 1 of the act of Congress of March 3, 1881, provides for the registration of trade-marks whose owners are 'domiciled in the United States or located in any foreign country which by treaty, convention or law affords similar privileges to citizens of the United States. It should be observed, however, in respect to trade-marks that the constitutional power of the Federal Government to deal with the registration and protection of trademarks and the precise effect of the statutes enacted by Congress upon the subject, are by no means free from doubt; and the representatives of the United States at the Paris conferences of 1880 and 1883, accordingly made certain reservations, which are to be found in the protocols of those conferences. For your information, I enclose herewith, a copy of a note addressed by me on January 11, 1888, to the minister of Switzerland at this capital bearing upon this subject.
Some of the specific provisions of the convention of 1883 would seem to need further legislation to enable the United States to carry them into effect. Such provisions are found in Articles IX. and X. for the seizure upon importation of merchandise bearing unlawfully a trade or commercial mark or commercial name.
“No machinery exists under the legislation of the United States to enable the seizure of merchandise bearing spurious trade-marks, and it may therefore, be doubted whether these provisions can be carried out without legislation by Congress.
“ The second inquiry of Her Majesty's Government is, in substance, how far the legislation of the United States, irrespective of treaties or conventions, gives protection to foreigners in respect to patents, designs, trade-marks, trade-names, &c.
“ This subject is dealt with in Chapter LX. of the Revised Statutes of the United States sections 4883 to 4971, and in subsequent legislation, particularly in the act approved March 3, 1881, in relation to trade-marks. As already stated this legislation permits inventors of every nationality without reference to treaties, to apply for patents on the same footing as citizens of the United States; and owners of trade-marks used in commerce with foreign nations or with the Indian tribes may obtain registration provided such owners shall be domiciled in the United States or located in any foreign country or tribes which by treaty, convention or law give similar privileges to citizens of the United States.'
“For your further information, I enclose herewith a pamphlet on the ‘History of the International Union for the Protection of In-dustrial Property, including a discussion of the articles of the union and their effect upon industrial property of citizens of the United States, prepared by the Examiner of Trade-Marks under the direction of the Commissioner of Patents."
Mr. Bayard, Sec. of State, to Mr. Herbert, Brit. chargé Jan. 18, 1889,
MS. Notes to Gr. Br. XXI. 38.
to accord to the subjects or citizens of the other members of the
(3) INTERNATIONAL COPYRIGHT.
“ An international copyright conference was held at Berne in Sep
tember, on the invitation of the Swiss Government. Berne Convention. The envoy of the United States attended as a delegate, but refrained from committing this Government to the results, even by signing the recommendatory protocol adopted. The interesting and important subject of international copyright has been before you for several years. Action is certainly desirable to effect the object in view. And while there may be question as to the relative advantage of treating it by legislation or by specific treaty, the matured views of the Berne conference cannot fail to aid your consideration of the subject.”
President Cleveland, annual message, Dec. 8, 1885. (For. Rel. 1885, p.
xiv.) This message referred to the project of an international copyright con
vention which was adopted by the conference at Berne, Sept. 18, 1885.
“ The drift of sentiment in civilized communities toward full recognition of the rights of property in the creations of the human intellect has brought about the adoption, by many important nations, of an International Copyright Convention, which was signed at Berne on the 18th of September, 1885.
“ Inasmuch as the Constitution gives to Congress the power to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries,' this Government did not feel warranted in becoming a signatory pending the action of Congress upon measures of international copyright now before it, but the right of adhesion to the Berne Convention hereafter, has been reserved. I trust the subject will receive at your hands the attention it deserves, and that the just claims of authors, so urgently pressed, will be duly heeded.”
President Cleveland, annual message, Dec. 6, 1886. (For. Rel. 1886, p.
xii.) The convention here referred to was the project adopted by the conference
at Berne on the date mentioned. A new conference met at Berne, Sept. 6, 1886, for the purpose of transforming the project into a definitive diplomatic act. This was done Sept. 9, 1886, the convention being on that day formally signed as an international agreement. A report on the subject may be found in a dispatch of Mr. Winchester, then United States minister at Berne, of Sept. 13, 1886. (For. Rel.
1886, 852.) The text of the convention is printed in For. Rel. 1886, 855. See, also,
For. Rel. 1887, 362, 363.
By an act of Congress approved March 3, 1891, the statutes of the
United States were so amended that international Act of Congress copyright might be obtained in the United States March 3, 1891.
on certain conditions. The whole of the existing legislation of the United States on the subject of copyrights may be found in title 60, chapter 3, Revised Statutes, and the acts of March 3, 1891; March 2, 1895, and Jan. 6. 1897.
The international application of the act of March 3, 1891, 26 Stat. 1110, is discussed in a report given below, in which the effect of section 13 is examined. That section reads as follows:
“ Sec. 13. That this act shall only apply to a citizen or subject of a foreign state or nation when such foreign state or nation permits to citizens of the United States of America the benefit of copyright on substantially the same basis as its own citizens; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States of America may, at its pleasure, become a party to such agreement. The existence of either of the