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Patents and Patent Law.

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PATENTS AND PATENT LAW-Continued.

efit of an examination into the facts of the supposed prior use.

Hays v. Sulsor, 279.
72. A reference to a county in which, it is alleged, the prior use took

place, is not sufficiently definite and explicit, as to place, to fill the

requirements of the spirit of the act. Ib.
73. The defendant plead the general issue, and gave notice under section

15 of the act of July 4, 1836, attacking the novelty of plaintiff's
patent. He also filed special pleas, averring prior use and inven-
tion, abandonment, etc. Upon motion the special pleas were stricken

out. Latta v. Shawk, 259.
74. A notice that a prior machine was used at “Cincinnati," " Coving-

ton," " Pittsburg," " Wayne county, Indiana," etc., is not sufficiently
specific, and does not lay the foundation for the introduction of

proof. Ib.
76. The notice of special matter, required under section 15 of the act of

1836, must give the name of some person who had knowledge of the
prior use at the place indicated. It is not enough to name tbe par-
ties using the thing—the notice must state the name of some witness.
Judson v. Cope, 327.

PRACTICE.
76. If there is no sufficient ground for the allowance of an injunction,

and the case is to be viewed as a mere proceeding to recover com-
pensation for an infringement of the exclusive right of the complain-
ant, there would seem to be an adequate remedy at law, which would
render the interposition of a court of equity improper. Jenkins v.

Greenwald, 126.
77. The equity rules adopted by the Supreme Court, under the authority

of an act of Congress, are, of course, obligatory on the Circuit
Courts. The latter have not the authority to rescind a rule adopted
by the Supreme Court for the government of their practice in chan.

cery. Ib.

78. In a trial at law, it is not competent to compare prior machines with

that used by the defendant. The issues of novelty and infringement
are distinct, and the testimony upon the issue of novelty must be
confined to a comparison of the prior machines with that of the

patentee. Judson v. Cope, 327.
79. When H. sold all his right in certain territory, but reserved the right

to send machines for sale within the territory, he, by virtue of the
right reserved to him, must be viewed as a "party aggrieved" in the
words of section 17 of the act of July 4, 1836, and he had an un-
doubted right to proceed in equity, for the protection of his rights,
without joining M., A. & Co. As parties complainant. Hussey v.
Whitėly, 407.

Patents and Patent Law.

PATENTS AND PATENT LAW-Continued.
80. By law, a district judge is associated with a justice of the Supreme

Court of the United States in holding a Circuit Court, and may hold
that court alone, in the absence of the superior judge; but it would
be clearly wrong in a district judge, as a judge of the Circuit Court,
in any case, to review or set aside the action of the superior judge.

Ib.
81. But, if the aspect of the case, as presented to the district judge, is

substantially changed by new evidence, which, it may be fairly
presumed, if brought to the notice of the presiding judge, would
have led to different action, it would be the duty of the former to

consider such proof and act in accordance with it. Ib.
82. If the defendant upon a motion to dissolve an injunction, so clearly

and conclusively impeaches the novelty of the invention of com-
plainant as to leave no doubt on that point, it might be the duty of
the court, against all the presumptions in the patentee's favor, to re-
lease the defendant from the operation of the injunction. Ib.

PRINTED PUBLICATION.
83. The description, in the prior printed publication, should be, in some

degree, in the nature of a specification, so far as to enable a mechanic
skilled in the art, to construct the machine. It should not be vague
reference to, or suggestions of the thing described. Hays v. Sulsor,

279.
84. To make the defense of prior publication in a foreign country avail-

able, it must appear that the improvement has been so clearly and
intelligibly described, in the prior publication, as that the invention
could be made or constructed by a competent mechanic. Judson v.

Cope, 327.
85. Such proof of prior knowledge must be anterior not merely to the

date of the patent, but to the time when the invention was actually
made. Ib.

REISSUE.
86. The surrender of a patent for reissue is equivalent to a distinct admis-

sion, made in the most solemn form, that the patent has no validity
in the sense of entitling the patentee to an action for its infringe-

ment. Moffitt v. Gaar, 315.
87. The statute gives no right of action for an infringement occurring

under the original and void patent, and before the reissue of the
new patent. Ib.

SPECIFICATION.
88. The requirement of the statute, in reference to certainty and definite-

ness in the directions for constructing a machine for which a patent
is sought, has in view two distinct objects. The one is, that the
public may know precisely what the invention ; the other, that is,

Patents and Patent Law.

PATENTS AND PATENT LAW-Continued.

upon the expiration of the patent, they may have an unerring guide
in the specification or record in the Patent Office in the construction

of the patented machine. Wayne v. Holmes, 27.
89. In a patent for an improvement in the manufacture of wash-boards

from wood and metal combined, by sharpening the cutting edges of
the zinc, or other metal, and incising the edges by pressure into the
frame, it is not a material defect in the specification that it does not
give the precise angle of the cutting edge, or describe the mode of ap-

plying the pressure, or the depth of the incision. Ib.
90. If competent mechanics, skilled in the business, testify there would be

no difficulty in constructing the machine from the specification
and drawing, the assumption of vagueness and uncertainty in the
description is repelled, unless it clearly arises from the language used

by the patentee. Ib.
91. The description of the invention is required to be full, clear, and exact,

that the public may be admonished of the precise claim, that it may
not be ignorantly infringed ; and that when the exclusive right shall
have expired, the public may be at no loss to know what the nature
of the invention is, so as to make it valuable and practical. Judson

7. Moore, 285.
92. If, with the exercise of ordinary intelligence and skill, the invention

could be constructed from the information given in the patent, there
would be no doubt that the specification answered the requisites of

the statute. Ib.
93. It is competent for the patentee to embrace two improvements on the

same machine in the same patent, and if the defendant has used both
or either of the improvements, there is infringement. Morris v.

Barrett, 254,
94. The description of Tilghman's process in his specification is sufficient. ·

A fixed rule is given, which will certainly insure success, and it is
also made known that certain variations may be made without
changing the process. Tilghman v. Werk, 511.

SUGGESTION,
95. Others may have made suggestions to the patentee as to the possi-

bility of making the improvement subsequently patented; they
may have thought upon the subject and made experiments with ref.
erence to it, but unless their experiments resulted in discovery, such
approaches to invention would be no bar to the granting of a patent
to one who succeeded in making the discovery and perfecting it.

Bell v. Daniels, 212.
96. If A. had a distinct conception of the invention as patented to B. and

communicated that knowledge to B., then, in a legal point of view,
A. must be considered the first inventor. Judson v. Moore, 285.

&

Penalty-Perjury.

PATENTS AND PATENT LAW-Continued.
97. Mere conversation, about the practicability of an improvement, or

suggestions as to the manner in which it might be carried out or ac-
complished, will not, of themselves, defeat the claims to originality

of him who perfects the idea and secures a patent. Ib.
98. But any information to a patentee, sufficient to enable him to con-

struct the thing itself, would destroy the originality of the inven-
tion. But that knowledge must be definite and tangible. Ib.

UTILITY.
99. The patent raises the presumption of utility, and the jury are not to

conclude that there is no utility in an improvement because of its
apparent simplicity, nor from the fact that it may not be the best
mode of effecting the result. This last consideration would affect

the value of the patent, but not its validity. Bell v. Daniels, 212.
100. The evidence of the success and practical results of an invention goes

more directly to the question of utility, but the jury may take it
into consideration, in deciding on the novelty and originality of the

invention. Judson v. Moore, 285.
101. It is a principle well settled and often recognized that, if the jury find

that the defendant has used the invention itself or something sub-
stantially like it, he is estopped from denying its utility, for use im-

plies utility. Hays v. Sulsor, 279.
102. The superior working of the patented machine, as distinguished from

all prior machines, may be evidence of a difference in principle,
and is competent testimony upon the issue of novelty. Judson v.

Cope, 327.
103. The degree of utility is not pertinent to the question of the validity

of a patent, but may, perhaps, form a proper subject of inquiry in
estimating the quantum of injury resulting from the infringement.

Tilghman v. Werk, 511.
PENALTY-
Where the word penal or penalty is used in a contract, it must be con-

strued as being so intended by the parties; but where a sum named
is called liquidated damages, it will be held as a penalty if it seems
from the contract that it was so intended by the parties, and the
justice of the case requires such a construction. White v. Arleth,

319.
PERJURY-
1. To convict of the crime of perjury, under section 13 of the act of

Congress of March 3, 1825, it must be shown by evidence that the
defendant was sworn; that he was sworn in a case, matter, hearing,
or other proceeding, where an oath or affirmation is required to be
taken or administered under or by any law or laws of the United

Pleading-Presumptions.

PERJURY_Continued.

States, and that he “knowingly and willingly" swore to that which

was false. United States v. Coons, 1.
2. Under an indictment for this offense, the prosecution must establish,

by proof, that the oath was administered to the defendant by the
person named in the indictment; that such person had authority to
administer the oath, and that the defendant swore, with a wicked and
corrupt intent, willfully false in regard to the matters alleged in the

indictment to be untrue. Ib.
3. The statements of a defendant, which are made the basis of a charge

of perjury, must be disproved by two witnesses, or one witness and

corroborating circumstances. Ib.
PLEADING-

A plea of a prior suit pending is not sustainable, without the averment

and proof that the cases are between the same parties and for the

same cause of action. Thurston v. Steamboat Magnolia, 93.
See PARTIES; OYER; EQUITY; RECOGNIZANCE.
POSTMASTER-
1. Where a postmaster in a quarterly return shows a balance in his

hands, the postmaster-general may apply the balance reported in a
subsequent return to the extinguishment of the previous balance.

United States v. Kershner, 432.
2. And where, in an account current continued for years, the postmaster-

general thus makes the application of balances reported by a post-
master, any deficiency on final settlement due from the postmaster
will be chargeable to and appear in the last quarterly account of the
postmaster; and unless two years have elapsed from the return of
the last quarterly account to the time of bringing suit on the post-
master's bond, the sureties in the bond are not protected from liabil.
ity by the provision of the act of Congress requiring suit to be
brought within two years, or in case of neglect so to sue, the sureties

not to be liable. Ib.
POWER OF ATTORNEY. See AGENCY.
PRACTICE-
The Circuit Court of the United States, within the Southern District

of Ohio, has adopted, as a rule of practice, the proceeding in aid of
execution provided for by the code of Ohio. Gregory v. Hewson $

Holmes, 277.
See CONSTRUCTION; PATENTS AND PATENT LAW (Practice.)
PREFERENCE. See FRAUD.
PRESUMPTIONS-
1. In & case charging collision by a steamboat on a flat-boat heavily

laden, if there is doubt on the question of fault, by reason of a con-

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