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finally secure a patent. Extreme poverty of the inventor is such a reason;' but poverty which was not sufficient to prevent the inventor from securing patents on other inventions,' or from spending money for an education,' is not such a reason. The fact that during all, or during much of the delay the inventor was within the so-called Southern Confederacy, and therefore unable to apply for a United States patent, has also been repeatedly held to be such a reason. Mental disorder which was great enough to generally incapacitate the inventor for business during the time of the delay, is also such a fact as will negative laches,* and physical disorder ought under the same circumstances to have the same effect.

Neither can laches be predicated of any delay which was caused by the experiments of the inventor in making or perfecting his invention," nor of any delay caused by absorbing misfortune, nor upon any neglect of which his patent solicitor was guilty," nor upon any delay of action on the part of public officers or courts.' Nor does delay constitute laches, when it was caused by the fact that the invention could only be used in connection with one covered by another patent, and by the fact that the inventor failed to make any arrangement with the owner of that patent for the joint use of the two inventions." If, under such circumstances, the inventor waits till the older patent expires before securing his patent, his delay is amply accounted for

Smith v. Dental Vulcanite Co.

93 U. S. 491, 1876; Celluloid Mfg. Co. v. Crofut, 24 Fed. Rep. 796, 1885.

Rifle & Cartridge Co. v. Arms Co. 118 U. S. 24, 1885; Wickersham v. Singer, 1 McArthur's Patent Cases, 689, 1859.

3 Craver v. Weyhrich, 31 Fed. Rep. 607, 1887.

4 Johnsen v. Fassman, 1 Woods, 142, 1871; Knox v. Loweree, 1 Bann. & Ard. 589, 1874.

Ballard v. Pittsburg, 12 Fed.

Rep. 784, 1882.

6 Agawam Co. v. Jordan, 7 Wallace, 583, 1868.

Beedle v. Bennett, 122 U. S. 76, 1886.

8 Birdsall v. McDonald, 1 Bann. & Ard. 165, 1874; Howes v. McNeal, 3 Bann. & Ard. 376, 1878.

Adams v. Jones, 1 Fisher, 530, 1859; Sayles v. Railroad Co. 2 Fisher, 523, 1865.

10 Webster v. New Brunswick Carpet Co. 1 Bann. & Ard. 84, 1874.

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by his desire to enjoy, for the full statutory term of a patent, the practical exclusive right to his invention. To predicate abandonment of delay suffered for such a purpose would be logically impossible.

§ 92. Where an application for a patent is rejected when it ought to be allowed, and where the inventor long acquiesces in that erroneous rejection, supposing it to be right, he cannot, on receiving better information, renew his application or file another, and thereupon secure a valid patent. In such a case the desire of the inventor to secure a patent may never have left him, but there was doubtless a complete, though perhaps reluctant, relinquishment of all expectation of so doing. An abandonment of an invention is not less real because it was unnecessary. But Congress, by a special act, may waive an abandonment and authorize a patent to issue for the abandoned invention.'

$93. Constructive abandonment of inventions prior to applications for letters patent, is the offspring of certain statutes, the earliest of which was the Patent Act of 1836.' Sections 6 and 7 of that Act authorized the Commissioner of Patents to grant a patent only where the alleged invention had not been in public use or on sale with the applicant's consent or allowance, prior to the application. Section 15 provided that in suits for infringement, judgment should be rendered for the defendant, if he should have pleaded and proved that the thing patented had been in public use or on sale, with the consent or allowance of the patentee, before his application for a patent. Section 7 of the Patent Act of 1839' provided that no patent should be held to be invalid by reason of purchase, sale, or use of the thing covered thereby, prior to the application for a patent, except on proof of abandonment of such invention to the public, or on proof that such purchase, sale, or use had

Marsh v. Commissioner, 3 Bissell, 321, 1872; Consolidated Fruit Jar Co. v. Stamping Co. 27 Fed. Rep. 377, 1886.

* Graham v. Johnston, 21 Fed.

Rep. 42, 1884.

35 Statutes at Large, Ch. 357, p. 117.

45 Statutes at Large, Ch. 80, p.

354.

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been for more than two years prior to such application for a patent. This provision of the Act of 1839 was, in one respect, restrictive of the enactments just cited from the statute of 1836; and in one respect it enlarged their operation. Its effect was to amend those enactments in the same way that it would have done, if it had inserted the words "for more than two years" in the proper place in their phraseology, and had also cancelled the qualification which related to consent and allowance.' This phrase "for more than two years means earlier than two years,' so that the law which the two statutes established on the subject is expressed in the following sentence. A patent is void if the invention covered thereby was in public use or on sale earlier than two years before the application for that patent. And that continued to be the law of the United States on the subject under the Consolidated Patent Act of July 8, 1870,' and also under the Revised Statutes.* The two years contemplated by this law are ascertained by measuring backward from the date of the filing of the application in the Patent Office; but where a second or renewed application is filed to take the place of another which described and claimed the same invention, and which was withdrawn or relinquished with intent to file the second application, the two years are ascertained by measuring backward from the date of the filing of the first application."

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$94. What is "public use," within the meaning of the statute? This question has now received light from a sufficient number of decisions, affirming or negativing the fact of public use in particular cases, to make it possible to deduce a moderately precise answer from judicial authorities. If the inventor allows his invention to be used by other

1 Andrews . Hovey, 123 U. S. 267, 1887; 124 U. S. 694, 1887.

2 Consolidated Fruit Jar Co. v. Wright, 94 U. S. 94, 1876.

3 16 Statutes at Large, Ch. 230, p.

4 Revised Statutes, Section 4886. Campbell v. New York, 35 Fed. Rep. 504, 1888.

6 International Crown Co. v. Richmond, 30 Fed. Rep. 778, 1887.

persons generally, either with or without compensation, then it will be in public use within the meaning of the statute.'

If the inventor uses his invention for profit, and not by way of experiment, that is a public use,' unless actual use resulting in profit is necessary to show the inventor how to perfect his invention, and unless he does perfect it in accordance with the teachings of such use. Nor will the fact that the inventor is but an employé in the place where he uses his invention, or the fact that the profit goes primarily to his employer, oust the operation of this rule.*

To constitute public use, it is not necessary that more than one specimen of the thing invented should have been publicly used,' nor that more than one person should have known of that use. Nor is it necessary to public use that the article used could have been seen by the public eye, if the ordinary use of such articles is veiled from view.'

§ 95. Experimental use is never public use within the meaning of the statute, if it is conducted in good faith for the purpose of testing the qualities of the invention, and for no other purpose not naturally incidental to that. In such a case it is immaterial whether the experimental use disclosed a necessity for improvement, or disclosed no such necessity; and is also immaterial whether the use was conducted with secrecy or not. It may indeed have been had in the open air, and have continued every day for several years, and have been known to hundreds of persons, and have incidentally inured to the profit of the user and of the public, and still not be a public use, within the meaning of the statute, if the nature of the invention was such that only

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long-continued out-door use could show whether the invention possessed utility, or show in what respects, if any, it required to be improved.' The liberal ideas which underlie the decision just cited will doubtless be applied to every variety of invention, as occasion serves, and will be found elastic enough to cover every meritorious case. Indeed, Judge LOWELL has gone still further in the direction of liberally allowing scope to experimental use, and has decided that such use is not public use within the meaning of the law, where, in order to test its comparative as well as its absolute utility, and in order to convince others of its merits, an inventor allows them to use his invention after he has himself become satisfied that it is useful.' But where the main object of the use was profit, and improvement was only an incidental aim, the use is not experimental in the eye of the law; and proof of the experimental character of any use which occurred earlier than two years before the application for a patent, must be full, unequivocal, and convincing, or it cannot prevail to save that patent from invalidity.*

§ 96. What is being "on sale," within the meaning of the statute? The answer to this question also, can now be accurately delineated in nearly or quite all of its boundaries.

A single instance of sale of one specimen of the thing invented is enough to constitute putting the invention on sale,' and indeed a device will be on sale within the meaning of the law, if it is offered for sale, whether any specimen of it is actually sold or not. If, however, the nature of the invention is such that the inventor is obliged to put it into the hands of others for crucial experiment, he may sell specimens to those others for that purpose, and such a sale

1 Elizabeth v. Pavement Co. 97 U. S. 134, 1877.

Sinclair v. Backus, 5 Bann, & Ard. 81, 1880.

Smith & Griggs Mfg. Co. v. Sprague, 123 U. S. 256, 1887.

4 Smith & Griggs Mfg. Co. v. Sprague, 123 U. S. 254, 1887. 5 Consolidated Fruit Jar Co. v. Wright, 94 U. S. 94, 1876.

Plimpton v. Winslow, 14 Fed Rep. 921, 1883.

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