Abandoned Experiments-Abandonment.
See EXPERIMENTS; ANTICIPATION, I; PRIOR Use, 2.
1. C. applied for a patent in January, 1859. The application was
rejected in February, 1859. No appeal was taken. In February,
1560, the application was withdrawn, and the balance of the fee
was refunded. In May, 1868, C. filed a new application, which
was rejected on the ground of abandonment. This decision was
affirmed by the Commissioner of Patents, and his decision was
reversed by the Supreme Court of the District of Columbia. The
Commissioner then declined to issue the patent. After the pas
sage of the Patent Act of July 8th, 1870 (16 U. S. Stat. at Large,
198), a new application was filed, and the patent was issued, it be-
ing for "improvements in breech-loading guns." During the eight
years from 1360 to 1968, C. obtained twenty-two patents on his
own application, nine of them relating to breech-loading fire-arms,
and though, during a part of the time, he was poor, and in debt,
and in ill health, he prosecuted his other inventions with energy.
During the same interval patents were granted to others embody-
ing his inventions: Held, that, under § 35 of said Act of 1870,
which provides that, upon the hearing of the renewal, provided
for by that section, of an application before rejected or withdrawn,
"abandonment shall be considered as a question of fact," the de-
cision of the Commissioner on the question of abandonment is
not final, but may be reviewed in a suit brought on the patent.
U. S. Rifle and Cartridge Co. v. Whitney Arms Co.
2. That no laches could be imputed to C. after May, 1868. Id.
3. That his invention was abandoned before May, 1868. Id.
See ANTICIPATION, I; DATE OF APPLICATION, I; DEDICATION,
1; EXPERIMENTs, I; Particular Patents, 67; Reissue,
14, 22.
VOL. II-41
Account-Annulling Patents.
See PROFITS And Damages; ATTACHMENT, I; BILL IN EQUI-
TY, 1, 2, 3; INFRINGEMENT, II; MASTER, I.
1. Priority having been declared in favor of the invention described and claimed in the complainant's patent, in an interference proceeding with the inventor of the invention described and claimed in the patent under which the defendants act: Held, that after long public acquiescence, as was shown in this case, it is too late to open the inquiry as to priority on a motion for a preliminary injunction. American Shoe Tip Co. v. National Shoe Toe Protector Co.
See INJUNCTION, 9, 16; LICENSE, 7; PARTICULAR PATENTS, 40,
See BILL IN EQUITY, I, 3; PRACTICE, I.
See EXECUTORS AND ADMINISTRATORS.
1. The principle of aggregation is as applicable to designs as it is to mechanical inventions. Northrup v. Adams.
1. Whether the Circuit Courts of the United States have jurisdiction over any proceeding instituted by the United States to vacate a patent and declare it null ab initio, upon the ground of false suggestion or that the Government has undertaken to grant that which it cannot grant, quære. If such authority exists, the information should be filed in the name and on behalf of the United States. Attorney-General v. Rumford Chemical Works.
298 2. A suit in effect to limit a patent, or to declare that it does not extend to a certain class of cases, and, pro tanto, to have it adjudged void, can only be sustained by the Attorney-General, in behalf of
the United States. Celluloid Manufacturing Co. v. Goodyear Dental
Vulcanite Co.
See INJUNCTION, 10; INTERFERING PATENTS, 2.
1. The court cannot take notice of what was not set up in the answer
against the complainant's patent. United States and Foreign Sala-
mander Felting Co. v. Haven.
2. In a suit brought for the infringement of a patent, an answer to
the bill, alleging a license from the complainant to practise the in-
vention, raises a perfect defence, and where the license is proved
the bill must be dismissed. The court will not decree the relief
prayed for as the result of an inquiry touching the fulfilment or
non-fulfilment of the contract. Tilghman v. Hartell.
3. In a suit brought for the infringement of letters patent, one of the
defendants appeared and filed an answer, in which he alleged that
two valid patents were granted to him, which he still holds and
which, as he alleged, were granted to him for inventions of which
he was the original and first inventor. Having described these
patents, he admitted that he had caused machines, for the same
purpose as complainant's machines to be made and sold for use
in accordance with those patents, but he denied that in such acts
he had infringed the patent of the complainant. He also denied
infringement in any and every form in which it was charged in the
bill of complaint: Held, that, under these pleadings, the complain-
ant having made prima facie proof that he was the original and first
inventor of the improvement, which he could do by the introduc-
tion in evidence of his patent in due form, the only question in
the case was whether the patent had been infringed by the defend-
Storrs v. Howe.
I. A device, consisting of a combination of the same elements, ar-
ranged and operated in substantially the same way and for the
same purpose as the patented device, and which has been used,
prior to the invention of the patented device, sufficiently to illus
trate and test its complete efficiency for that purpose, is an antici-
pation of the patented invention, and is not to be regarded merely
as an abandoned experiment, although its use may have been quickly
discontinued. Shoup v. Henrici.
See DEDICATION, I; ORIGINALITY, I; PARTICULAR PATENTS,
13, 43, 45, 52, 78, 83; PRIOR USE, 2; PUBLIC USE, 1, 2;
UTILITY, I.
See STATE OF THE ART; CONSTRUCTION OF PATENTS, 7.
See CONSTRUCTion of Patents, 7; Particular PATENTS, 66.
1. M., the patentee, assigned to B. his interest in the patent for the
State of Pennsylvania, and afterwards reissued the patent. Sub-
sequently to the reissue, B. assigned his title to a certain territory
in the State of Pennsylvania, under the reissued patent, to the
complainants, who filed a bill against the defendants. The de-
fendants demurred to the bill on the ground that B.'s interest was
outstanding at the time of the surrender by the patentee, and that
he did not appear to have been a party or to have assented to or
approved of the surrender, and that, therefore, the reissue was void:
Held, that B. was not an assignee within the meaning of the stat-
ute, and it was not, therefore, necessary for him to join in the sur-
render in order to give validity to the reissued patent. Meyer v.
Bailey.
2. Whether a court of equity will entertain a suit for the benefit of
an assignee of a right of action for a tort, quære.
Carroll.
See PROFITS AND DAMAGES, 8; REISSUE, 7, S.
1. R., the patentee and owner of letters patent, agreed with M.,
shortly before the patent expired, that he would apply for its ex-
tension, and assign the extension, if obtained, to M., and M., in
consideration, paid to R. $500, and agreed to pay him $1,500 more
on receiving such assignment, and also the expenses paid by R. in
procuring the extension. R. died without applying for the exten-
tension, and left a will appointing his wife his sole executrix, and
making her and his daughter his sole bencficiaries. The will was
probated in Massachusetts. Afterwards, a corporation, by assign-
ment from M., acquired his rights under said agreement. There-
after, the widow, as executrix, and acting in the interest of the
corporation, applied for and obtained an extension of the patent,
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