Oliver Wendell Holmes, Jr.

“ As to the analogies relied upon below, the disregard of abandoned patent applications however explained cannot be taken to establish a principle beyond the rule as actually applied. As an empirical rule it no doubt is convenient if not necessary to the Patent Office, and we are not disposed to disturb it, although we infer that originally the practice of the Office was different. The policy of the statute as to foreign inventions obviously stands on its own footing and cannot be applied to domestic affairs. The fundamental rule we repeat is that the patentee must be the first inventor. ”

“ This as it seems to us is more than an arbitrary enactment, and illustrates, as does the rule concerning previous public use, the principle that, subject to the exceptions mentioned, one really must be the first inventor in order to be entitled to a patent. Coffin v. Ogden, 18 Wall. 120, 21 L. Ed. 821. We understand the Circuit Court of Appeals to admit that if Whitford had not applied for his patent until after the issue to Clifford, the disclosure by the latter would have had the same effect as the publication of the same words in a periodical, although not made the basis of a claim. ”

“ Rev. Sts. § 4923 (Comp. St. § 9469) . See Westinghouse Machine Co. v. General Electric Co., 207 F. 75, 126 C. C. A. 575. These analogies prevailed in the minds of the courts below.
On the other hand publication in a periodical is a bar. ”