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a felon caught with the mainor, that is, with the goods in his hands, because he had not parted with them, though perhaps from want of opportunity, and permitting him to escape on delivery of them to the owner.

So here, a post-entry is to wipe away all the penalty, if the goods not being landed is not enough, and free the party from all obligations of proving what the law, in cases of disagreement of the cargo on board with the manifest delivered, requires. This never could have been the legislative intention. Should this view of the subject be deemed irrelevant, the construction of the proviso contended for by the counsel, who always makes the best defence his case admits, would at any rate give every encouragement and means of “eluding the statute," to those inclined to defeat the objects of the law. Among these objects evidently are those comprehended in the provisions which enforce the necessity of returning fair and true accounts of all goods, not only then on board, but of furnishing proof when required as to those which had been any part whatever of the goods of such ship or vessel." No proof whatever has been adduced to make it appear, that there were in the vessel or had been no goods landed, since they were taken on board, other than those entered, and those discovered after such entry. The captain's declarations on this subject have been proved to be false, by the testimony of witnesses and the discovery of the goods. I am, therefore, of opinion, that neither the words nor manifest intention of the proviso relied on, justify the defence set up in this cause, in point of law, and of course judgment must be entered for the United States.

Circuit Court of the United States.

District of Pennsylvania, 1809.

PATENT RIGHT.

Oliver Evans versus John Weiss.

THIS
HIS was an action on the case for a violation of the plain-

tiff's patent right, and came on upon the following case agreed:

The plaintiff being the inventor of the improvements in the manufacture of flour hereafter mentioned, and the patent right for the same by him heretofore obtained having been declared by the court void in the action of the said Evans against Chambers, and the time for which the said patent was granted having also run out, an act of congress, entitled an act for the relief of Oliver Evans, was passed on the 21st of January 1808; in consequence of which the said Oliver duly obtained letters patent, bearing date the 22d of January 1808; notice whereof was given to the defendant in February last.

On the 7th of May 1802, during the continuance of the former patent, the defendant purchased of the plaintiff a right to use the said improvement at his mill on Wissahiccon creek in Philadelphia county, in this district, for one wheel and pair of stones; but prior to the passing said act of congress he had applied and used, and continues to apply and use, the same improvements for two wheels and two pair of stones in the same mill. The question submitted is whether the defendant is liable for damages for the use of said improvements, in application to this second wheel and pair of stones, since the act of the 22d of January, and whether if so he is liable before notice from the plaintiff. If the opinion of the court be in favour of the plaintiff, judgment to be entered generally, and amount to be adjusted afterwards by the attorneys.

the first argu

Judge Washington delivered the opinion of the court.

It is contended by the plaintiff, that the defendant is liable for using the plaintiff's improvement, in application to the second wheel and pair of stones, since the 22d of January 1808, or at all events since the time when the defendant received notice of the plaintiff's patent; because the proviso in the act passed on the 21st of January 1808 for the relief of Oliver Evans extends only to cases of improvements erected for use or used prior to the passage of said law, and does not protect the defendant from damages for using, after the issuing of the patent under this law, an improvement erected prior thereto.

On the other side it is insisted, that such a construction would render this an ex post facto law, and consequently repugnant to the constitution. To avoid which it should be so construed as to connect with the use of the improvement the erection of it, subsequent to the grant of the patent. Although the court at the last term and

upon ment, felt strongly inclined to give it the construction contended for by the defendant; yet upon further reflection, we are satisfied that we should do a violence to the words, which no rule of construction would warrant. The words of that proviso are,

person,

who shall have used the said improvement, or have erected the same for use before the issuing of the said patent, shall be liable to damages therefor.” That is, shall be liable for having erected or for having used the improvement at any time prior to the patent. But with respect to the use of it after the issuing of the patent, no protection whatever is afforded against the claim for damages under this law.

The next inquiry is, does the general law give to the plaintiff a right of recovery against a person who erected a machine prior to the issuing of a patent to the first inventor of it, and who afterwards made use of the same.

The act of the 17th of April 1800, which as to this point is the only law in force, declares that if any person without permission from the inventor shall make, devise, use or sell the thing whereof the exclusive right is secured to the patentee,

that no

he shall pay three times the damage sustained by the patentee, to be ascertained by a jury. Now, whatever doubts might have existed as to the meaning of the words “ devise and use" in the 5th section of the act of 21st of February 1793, thus connecting the using with the devising of the improvement, there can be done under the 3d section of the act of 1800, which repeals the whole of the 5th section of the old law.

It is plain that the using of the improvement invented by another and secured by patent is of itself an offence, no matter at what time such improvement was devised or made. Whether the word "devise," which has been a good deal criticised, is synonymous with make; as one of the plaintiff's counsel seemed to think, ur means to invent, a mere act of the mind, a construction which, whether it be to make, or to contrive, to plan, form or design, it is unnecessary in this case to decide; because the charge against the defendant is the using of the plaintiff's improvements, unconnected with the making or devising it.

But it is objected to this construction, that it would render the law ex post facto in its operation, in respect to one who has erected his improvement prior to the granting of the patent to the plaintiff.

It must be admitted that cases of great hardship may occur, if, after a man shall have gone to the expense of erecting a machine, for which the inventor has not then and never may obtain a patent, he shall be prevented from using it by the grant of a subsequent patent and its relation back to the patentee's prior invention. But the law in this case cannot be termed ex post facto, or even retrospective in its operation, because the general law declares beforehand that the right of the patent belongs to him who is the first inventor, even before the patent is granted; and therefore any person, who, knowing that another is the first inventor, yet doubting whether that other will ever apply for a patent, proceeds to construct a machine, of which it may afterwards appear he is not the first inventor, acts at his peril, and with a full knowledge of the law, that by relation back to the first invention a subsequent patent may cut him out of the use of the machine thus erected,

Not only may individuals be injured by a liberal construction of the words in the law, but the public may suffer, if an obstinate or negligent inventor should decline obtaining a patent, and at the same time keep others at arms' length, so as to prevent them from profiting by the invention for a length of time, during which the fourteen years are not running on. But all these hardships must rest with congress to correct. It is beyond our power to apply a remedy. No such hardships exist in this case, where the defendant erected the improvement with a knowledge not only that the plaintiff was the first inventor, but had absolutely obtained a patent, although it was afterwards declared invalid.

The circumstances of this case render it unnecessary to give an opinion as to the right of a first inventor, after patent obtained, to recover against one who believing himself to be the first inventor, constructs a machine or improvement upon the principles of his new invention, or uses the same after such patent issued.

Upon the point of notice, we think that the act of 1808 being a private act, the defendant is liable only from the time he received notice of the law.

Judgment for plaintiff.

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