Thus, unless the article in question was obviously patentable, the informer was required to aver and prove that the thing on which the word was placed was legally the proper subject for a patent.[1]
If this holding had not been promptly overruled, it would doubt-less have been modified to mean that the article marked must appear to be, or be averred to be, such a one as might be considered patentable by the ordinarily reasonable man. Even this softening of the old rule leaves much to be desired, for who shall be sure of his opinion when experts disagree? Only in such cases where a court can say, out of its judicial knowledge of commonplace things, that the article complained of has never been patented and cannot be patented, will the declaration be demurrable on the ground taken in United States v. Morris.[2]
Under this rule, should the case of obvious unpatentability arise, an averment that the article was patentable would be idle as against manifest truth. But all this exception can amount to is that no statutory offence will be found when the marking was evidently so ridiculous that deceit stood out of the question. A man may mark his cows "patented" with impunity so far as the statute is concerned, even if his actual intent to deceive the public is of the most virulently evil character.
With equal reason the courts hold that there is no offence against the statute in marking goods with the date and number of an expired patent; the public is presumed to know the term of United States patents.[3]
In treating cases which arise under this statute, inquiry must be directed to the critical period in the transaction, namely, the time when the marks were affixed.
If, at the time when the word " patented," or words and marks of like import, were affixed to the article there was no guilty intent, then subsequent development of an intent to deceive is of no consequence, and is insufficient to support an information. Marks applied in the honest expectation that a patent is presently to be granted are innocent.[4]
Thus, where a defendant was charged with unlawfully affixing patent marks in Cincitnnati, and with renewing the offence by bringing the goods marked for sale into New York, the court in the District of New York held that the act provided for by the
