The Goodyear Dental Vulcanite Co. v. George Willis. testimony, showing that this claim, as judicially construed, did not involve invention. No case ever before us more eminently called for the application of the rule so frequently relied on to uphold the novelty of inventions, which deduces the fact of novelty from the extent of the revolution immediately resulting in that department of the arts in which they are employed. Formally, the objection was taken that the reissue was not warranted by the original patent. The present claim, as construed by the court, is so undeniably indicated in the original patent that, although we did not understand the counsel for the defense as by any means waiving the point, we did understand by what passed at the bar, and explanations that were made in answer to interrogatories from the bench, that little reliance was placed upon this position. No useful purpose would be subserved in noticing it further. We have no doubt whatever the reissue was warranted by the original patent. It is also insisted that the complainants' manufacture was anticipated by several pre-existing dental plates. It is not deemed necessary to contrast any of these devices with that before us. It has been frequently done by other tribunals before which they have also been proved, and in every instance judicially pronounced to be wholly unlike that described in complainants' claim. There is not sufficient similarity to demand at our hands a comparison. We quote again from the opinion of Judge SHEPLEY, already noticed, the conclusion at which he arrives after a careful and minute discussion of a part, and a general reference to the residue, of the exhibits here claimed as anticipating the patent. After discussing the cast-tin plates made by Hawes and Royce, he says: "Without going into a detailed examination of the Wildman plates, made by casting tin around the roots of the teeth upon gold or silver plates, the unsuccessful attempts to The Goodyear Dental Vulcanite Co. v. George Willis. use gutta-percha, the experiments of Dr. Hill with a secret compound of gutta-percha and some metallic salt, it is sufficient to state that none of these, much less any of the printed publications of which notice is given in the answer, suggest or describe an article of manufacture substantially like that described and claimed in the reissued patent on which this suit in equity is based." It was also urged on the argument here, as it has been in the other cases referred to, that the rights of the complainants had been forfeited under Sec. 7, of the Act of 1836, as amended by the Act of 1839, which provides that if the claimant shall suffer his invention to go into public use with his consent and allowance for more than two years prior to his application for a patent, it shall be deemed abandoned; and that it was also forfeited under Sec. 8, of the Act of 1836, and the additional Act of 1839, providing that if the inven tion shall be patented in a foreign country more than six months prior, and be introduced into public and common use in the United States before the application for a patent, it shall be deemed void. Defendant's counsel concede that if the application for this patent was made in 1855 instead of 1864, then these objections have no application, because no use whatever was proven in this country, nor was the patent issued in England before that date. If the application made in 1864 was but a continuation of the proceeding launched in 1855, so that we may consider the application then made as that upon which the patent rests, neither the two years' period under the one section nor the six months under the other would apply. That within the meaning of these provisions, where successive applications are made in the procuration of a patent, where there is no proof of actual abandonment, the subsequent application will be deemed a continuation of the first, is fully sustained by the following adjudications. 1 Fisher, 377, Bell v. Daniels; LEAVITT, J., The Goodyear Dental Vulcanite Co. v. George Willis. The application filed JanThere was no withdrawal. In Southern District of Ohio, 1858. uary, 1838, was then rejected. March, 1840, a new application was filed, and a patent granted 1840. The court say: "This question is decided by Sec. 7, of the Act of 1836. That section provides that when, a patent is refused the application shall still be in force, unless the applicant, in a manner pointed out, elects to withdraw it." 3 Fish. 616, Blandy v. Griffith, Southern District of Ohio; SWAYNE, J., 1869. The application filed May 3, 1856; June 15, 1857, rejected on appeal; May 26, 1858, last application filed; patent granted August 3, 1858. Sales by inventor continuous from summer of 1855. The applicant never exercised his right of withdrawal. Justice SWAYNE says, p. 617, "The application of May 26, 1858, was in itself too late; but we think it may be properly held to have been in the nature of a petition for the review of the previous rulings, and to have related back to the prior application, and that the final action of the commissioner was not original and independent action, but a renewal and elongation of the former proceedings, and a reversal of the previous rejections." In 1 Wall. 317, Godfrey v. Eames, application January, 1855; rejected May, 1855; withdrawal and new application, 1857; sales in fall of 1854; patent granted March 2, 1858. Justice SWAYNE, delivering the opinion of the court, said: "In our judgment, if a party choose to withdraw his application for a patent and pay the forfeit, intending at the time of such withdrawal to file a new petition, and he accordingly do so, the two petitions are to be considered as parts of the same transaction, and both as constituting one continuous application within the meaning of the law." (Pp. 325–6.) All the following judgments sustain and apply the same principle. The last application is deemed an indivisible part of the proceeding commenced by the first. They all hold that the original application is that upon which the law con The Goodyear Dental Vulcanite Co. v. George Willis. siders the patent depends. 5 Fish. 250, Clark v. Scott, BLATCHFORD, J.; 7 Blatchf. 521, Singer v. Braunsdorf, BLATCHFORD, J.; 5 Fish. 198, McMillin v. Barclay, McKENNAN, J.; 5 Fisher, 473, Johnson v. Fassman, Woods, J.; 3 Pat. Off. Gaz. 630, Jones v. Sewell, CLIFFORD, J.; 1 Fish. 11, Adams v. Edwards, WOODBURY, J.; 1 Fisher, 527, Adams v. Jones, GRIER and MCCANDLESS, JJ.; 1 Fisher, 526, Sayles v. C. & N. W. R. R. Co., DRUMMOND, J. These decisions dispose of the objection that the rights of the patentee were forfeited because the application was not made. in time. This disposition of the objection of forfeiture renders unnecessary what we should otherwise deem it proper to show, that in order to support that part of it resting upon the issuance of a foreign patent, proof should be given connecting the complainant with its procuration. No objection was more strenuously urged than that predicated upon 1 Wall. 317, Godfrey v. Eames, which the defendant claims intimates that there may be an abandonment in fact, intermediate the first and succeeding applications, which will so sever the proceeding as to make the patent rest in legal contemplation upon the last, and if two years before it the thing has gone into public use with the consent or allowance of the patentee, it shall be deemed abandoned. To answer this objection, and negative the idea that Cummings, by his delay in the prosecution of his claim, intended to abandon it, the complainants have put into the record voluminous proofs, showing a continuous and persistent assertion of his right and intention to maintain it. The testimony shows numerous and fruitless attempts to procure assistance to defray the expenses of his application by offering shares of the patent, if obtained, and otherwise, and in the later periods of his delay such a degree of ill health, poverty, and general depression on his part, as shows good reason why he did not prosecute more vigorously his application. The facts do not The Goodyear Dental Vulcanite Co. v. George Willis. warrant, nor was the argument pressed, that there was fatal delay prior to 1859. At that time, Cummings had become insolvent, and his health seriously impaired by chronic diseases, which ultimately terminated his life. The testimony leaves no room for doubt that after this period he wholly ceased to furnish any considerable part of the support of his family. His wife's small separate property was first mortgaged and then sold, to procure what is proved to be the small and sometimes too scanty expenditure upon which they lived. The praiseworthy efforts of his wife as the keeper of a boarding-house, the pawning of her few personal ornaments, and her general care and support of a diseased and dispirited husband, present a picture as affecting as it is demonstrative of Cummings's inability, from sheer poverty, to prosecute his application. The only diligence of which, in his physical and pecuniary condition, he was capable, he manifested by such a constant reiteration of his rights as showed that the idea, in the words of some of the witnesses, "had taken complete possession of his mind," and incapacitated him for all other business. His offer of portions of the future patent were frequently repeated during the whole period till 1864, when, after its partial use by the profession had demonstrated its utility, for the first time his proposition was accepted, the means obtained, and the patent procured.. His history and condition during this entire time exclude the idea that he intended to abandon his claim. The prima facie evidence of a contrary intention springing from the fact that he did make the last application is not overcome by the evidence aliunde, but is proven to be consonant with the real intention of the inventor. There is one most remarkable feature in several of the discussions of this subject before other tribunals, and which with great emphasis presented itself in this. We do not refer to it to censure counsel in the present cause, as those of equal eminence have elsewhere, in the presence of excited |