cation to the public-that the plaintiff was justified and had a right to test the utility of his invention, and see what improvements might be made before he applied for his patent, and that this was an article which would be tested by being put into several families, where it might be differently used by different housekeepers.

In charging the jury, Judge Thompson, after stating the case and the difficulties arising from the obscurity of the language employed in the summary of the specification, remarked that in all cases, where consequences of great importance to the parties were involved, the jury must expect that the views of each, would be presented with great earnestness and zeal. Nor is it surprising (said he) that in such controversies, matters not materially connected with the merits of the issue, should be brought before the Court and Jury during the progress of the trial.

These remarks are applicable to the case now under consideration. It evidently involves matters of importance to the parties concerned, and has been accompanied by circumstances having no material bearing upon the questions in issue. We, however, are to examine the controversy, and determine it, by the law and the evidence, without reference to extrinsic matters, having no bearing upon its merits. And in this view of the subject, it is of no consequence whether the plaintiff, Mr. Stanley, has, or has not, accumulated a fortune, as the fruits of his invention. If, by his own talents, industry, and perseverance, he has produced a machine, useful in itself, and approved of by the public, he is entitled to the protection of the law, so far as he has rights to be preserved and guarded. And if, on the other hand, he has interposed claims which cannot be the subject of legal sanction, he must abide by the consequences of his fault, or misfortune.

I state to you, gentlemen, in the outset, that this is not a case free from difficulties. But I have the consolation of knowing that my decision of the matter need not be final, and that any mistakes committed here, may be reviewed and corrected by another tribunal, where I, too, shall have an opportunity of considering the subject with more care.

In my view of the case, much evidence has been introduced upon both sides, which is entirely irrelevant. The plaintiff's rights, whatever they are, depend upon his patent, and if he has any by his patent, and has not abandoned them to the public, he is entitled to protection. I confess to you, that my own prepossessions lean towards useful improvements, and I would construe the patent act with a liberal spirit, and expanded views. It is a beneficial law, having its foundations in public policy. Its object is, to encourage the enterprise of ingenious men, that the results of their labours, being brought into view, may be first enjoyed by the inventors for a limited period, and then dedicated to the public benefit forever afterwards. Nevertheless, I do not mean to say that all patents are to be protected at all events, but those only are to be sustained which have the sanction of law. It is a well known fact that patents are granted at the Patent Office, not after an examination into their merits, but upon ex parte statements, and hence their real claims may be afterwards investigated with proper strictness in a court of law.

There are some general rules always to be observed while considering this subject. In the first place, to entitle a patentee to maintain an action for a supposed violation of his rights, his invention must be both useful and new; not that its usefulness is to be scanned with a critical eye, to ascertain a given amount of benefit to be derived from it, but the invention must be useful, as contradistinguished from that which is frivolous, or wholly

worthless. If not frivolous, or entirely useless, the requirements of the law in this particular are complied with.

With regard to the invention before us, it is clearly useful; this is proved by the testimony of witnesses on all sides. It is proved, also, by the great extent of the plaintiff's sales, by the favour of the public, which has been liberally bestowed upon it, and by the palpable imitations of the plaintiff's models in the case under consideration.

If the plaintiff has legal rights here, there can be no doubt that they have been violated by the defendant. There is no substantial difference between the stove made by the defendant, and that invented by the plaintiff; the one is a copy of the other. And as to the extent of the violations, there is as little doubt. If you believe the testimony of Mr. Randal, the defendant sold a hundred stoves before the commencement of this suit, if his own declarations are to be credited, for he told the witness, in express terms, not only that a hundred stoves like these had been sold in Vermont, but that they had been sold by him. If this witness, therefore, is worthy of credit, (and he stands entirely unimpeached in every respect,) there can be no doubt that the plaintiff's rights have been violated by the defendant, if, in fact, it shall appear that he has any which the law can protect.

But the great question is, whether he has any such rights, and the solution of that question is to be found in the patent itself.

And here I may remark, that much has been proved and said in relation to the inventions of Town and Gould. The evidence upon these points is only important in one point of view, and in that it will be here considered. It shows that the materials, or component parts, of Stanley's stove are not in themselves new; and if the plaintiff claims a combination of things, he has evidently taken old materials to form his machine with, whatever it may be.

In relation to this part of the case, I would observe, that the particular words used in the specification and summary of this patent are of no importance. The office of words is to convey ideas, and our province is to determine what the party intended to express by the language employed. Did the patentee intend to claim the discovery of a principle, in the abstract or philosophical sense of that term? or did he intend to describe a contrivance, or machine, new and useful in reference to the purpose for which it was produced? He claims in his summary, "the revolving top plate," as a constituent part of his invention, and the first inquiry is, whether, before the use of Stanley's stove, a contrivance had been used by which the utensils to be heated had been brought over the fire, by means of a top revolving upon its centre. If the patentee claims this revolving motion as his own discovery, in its application to a cooking stove, he evidently includes in his patent that which is not his own discovery; for Town's stove had a revolving top, or drum, intended to accomplish the same object, by means somewhat similar.

It is very possible that Town could not maintain a patent for that invention, because he long ago gave it up, and abandoned it to the public. He did not, however, abandon it to the plaintiff, and all other persons might use it as well as he. If Town's discovery was abandoned, the only claim to it which Stanley can maintain, is the use of the thing as a part of his combination; and here we must determine what Town's invention was.

It is evident that he invented a revolving drum or top of a stove, to convey vessels to and from the fire by a rotary motion and concentrate the heat around them when placed there. This contrivance he gave up, or

cation to the public-that the plaintiff was justified and had a right to test the utility of his invention, and see what improvements might be made before he applied for his patent, and that this was an article which would be tested by being put into several families, where it might be differently used by different housekeepers.

In charging the jury, Judge Thompson, after stating the case and the difficulties arising from the obscurity of the language employed in the summary of the specification, remarked that in all cases, where consequences of great importance to the parties were involved, the jury must expect that the views of each, would be presented with great earnestness and zeal. Nor is it surprising (said he) that in such controversies, matters not materially connected with the merits of the issue, should be brought before the Court and Jury during the progress of the trial.

These remarks are applicable to the case now under consideration. It evidently involves matters of importance to the parties concerned, and has been accompanied by circumstances having no material bearing upon the questions in issue. We, however, are to examine the controversy, and determine it, by the law and the evidence, without reference to extrinsic matters, having no bearing upon its merits. And in this view of the subject, it is of no consequence whether the plaintiff, Mr. Stanley, has, or has not, accumulated a fortune, as the fruits of his invention. If, by his own talents, industry, and perseverance, he has produced a machine, useful in itself, and approved of by the public, he is entitled to the protection of the law, so far as he has rights to be preserved and guarded. And if, on the other hand, he has interposed claims which cannot be the subject of legal sanction, he must abide by the consequences of his fault, or misfortune.

I state to you, gentlemen, in the outset, that this is not a case free from difficulties. But I have the consolation of knowing that my decision of the matter need not be final, and that any mistakes committed here, may be reviewed and corrected by another tribunal, where I, too, shall have an opportunity of considering the subject with more care.

In my view of the case, much evidence has been introduced upon both sides, which is entirely irrelevant. The plaintiff's rights, whatever they are, depend upon his patent, and if he has any by his patent, and has not abandoned them to the public, he is entitled to protection. I confess to you, that my own prepossessions lean towards useful improvements, and I would construe the patent act with a liberal spirit, and expanded views. It is a beneficial law, having its foundations in public policy. Its object is, to encourage the enterprise of ingenious men, that the results of their labours, being brought into view, may be first enjoyed by the inventors for a limited period, and then dedicated to the public benefit forever afterwards. Nevertheless, I do not mean to say that all patents are to be protected at all events, but those only are to be sustained which have the sanction of law. It is a well known fact that patents are granted at the Patent Office, not after an examination into their merits, but upon ex parte statements, and hence their real claims may be afterwards investigated with proper strictness in a court of law.

There are some general rules always to be observed while considering this subject.

In the first place, to entitle a patentee to maintain an action violation of his rights, his invention must be both useful and usefulness is to be scanned with a critical eye, to ascerof benefit to be derived from it, but the invention must distinguished from that which is frivolous, or wholly

worthless. If not frivolous, or entirely useless, the requirements of the law in this particular are complied with.

With regard to the invention before us, it is clearly useful; this is proved by the testimony of witnesses on all sides. It is proved, also, by the great extent of the plaintiff's sales, by the favour of the public, which has been liberally bestowed upon it, and by the palpable imitations of the plaintiff's models in the case under consideration.

If the plaintiff has legal rights here, there can be no doubt that they have been violated by the defendant. There is no substantial difference between the stove made by the defendant, and that invented by the plaintiff; the one is a copy of the other. And as to the extent of the violations, there is as little doubt. If you believe the testimony of Mr. Randal, the defendant sold a hundred stoves before the commencement of this suit, if his own declarations are to be credited, for he told the witness, in express terms, not only that a hundred stoves like these had been sold in Vermont, but that they had been sold by him. If this witness, therefore, is worthy of credit, (and he stands entirely unimpeached in every respect,) there can be no doubt that the plaintiff's rights have been violated by the defendant, if, in fact, it shall appear that he has any which the law can protect.

But the great question is, whether he has any such rights, and the solution of that question is to be found in the patent itself.

And here I may remark, that much has been proved and said in relation to the inventions of Town and Gould. The evidence upon these points is only important in one point of view, and in that it will be here considered. It shows that the materials, or component parts, of Stanley's stove are not in themselves new; and if the plaintiff claims a combination of things, he has evidently taken old materials to form his machine with, whatever it may be.

In relation to this part of the case, I would observe, that the particular words used in the specification and summary of this patent are of no importance. The office of words is to convey ideas, and our province is to determine what the party intended to express by the language employed. Did the patentee intend to claim the discovery of a principle, in the abstract or philosophical sense of that term? or did he intend to describe a contrivance, or machine, new and useful in reference to the purpose for which it was produced? He claims in his summary, "the revolving top plate," as a constituent part of his invention, and the first inquiry is, whether, before the use of Stanley's stove, a contrivance had been used by which the utensils to be heated had been brought over the fire, by means of a top revolving upon its centre. If the patentee claims this revolving motion as his own discovery, in its application to a cooking stove, he evidently includes in his patent that which is not his own discovery; for Town's stove had a revolving top, or drum, intended to accomplish the same object, by means somewhat similar.

It is very possible that Town could not maintain a patent for that invention, because he long ago gave it up, and abandoned it to the public. He did not, however, abandon it to the plaintiff, and all other persons might use it as well as he. If Town's discovery was abandoned, the only claim to it which Stanley can maintain, is the use of the thing as a part of his combination; and here we must determine what Town's invention was.

It is evident that he invented a revolving drum or top of a stove, to convey vessels to and from the fire by a rotary motion and concentrate th heat around them when placed there. This contrivance he gave up.

abandoned, because it was useless, that is, useless in its then combination, though not in the abstract-for the principle or contrivance, as to the revolution, remains. As a cooking machine, the stove of Town was good for nothing; but its revolving motion might be made useful when brought in connexion with other constituents properly adapted to the objects in view. The same remarks are applicable to the raised cones, or collars, and the flues. Each of these was old, and each had before been used either by itself or in other combinations. Stanley himself had used the collars in his own stove, as far back as the year 1828. So had Wilson-and this part of the machine is confessedly old. So with regard to the flues. If Stanley was the inventor of these, he had abandoned them to the public long before the date of his patent, and he cannot, therefore, now claim them as the subject of a patent. But the question is, whether Stanley does claim these materials or constituents as his invention ?-for if he does his patent is void. He would then claim as his own the discoveries of others, or endeavour to maintain that which he had, by use, dedicated to the public.

If, on the other hand, the patentee claims a combination here, and nothing more, then I have no hesitation in saying that his rights are secured. If he goes for the elements or constituents of his machine, his patent is void, but if he merely claims a new combination of old materials, his rights may be protected. The patent itself is somewhat obscurely drawn, but the invention is useful and meritorious, and I am disposed to give it all the protection which the law will allow. A liberal construction should be given to these instruments, nor should a severe criticism be bestowed upon language used, for the most part, by the inventors themselves, who are, in many cases, altogether unskilled in the use of technical terms. We are always to ask ourselves on these occasions, what was the intention of the writers, and if that be discovered, the particular words used are altogether unimportant. With these views, and under these considerations, I proceed now to give you my notions as to what this patent contains. It concludes with a summary in the following words:-" the principle for which I claim the invention, and for which I ask letters patent," is "the revolving top plate or fixture into or on which are placed the principal utensils used in cooking," &c.

By the patent law, the party is required to describe that which he makes, that the public may understand the thing, and be able to construct the like after the patent shall have expired; and hence there is a necessity for a proper observance of this requirement of the act. In this case, the plaintiff claims the specific thing set forth in the summary, and we must turn to the specification in order to understand what that thing is. The term used in the summary is "principle," but a reasonable interpretation must be given to it, or no sensible exposition of the parties' meaning can be obtained. He evidently did not intend to claim the discovery of an abstract thing, or entity, but some tangible mechanical contrivance, described in the specification. By "principle," he evidently intended a contrivance or thing described; and as there is no magic in words, we may fairly give this interpretation to the term used.

The plaintiff then patents this "revolving top plate," with its collars and flues, but instead of describing his invention as it really is, a combination, he describes the constituent parts. His improvement consists of a combination, and he should so have described it, and I have no doubt that a specification may be drawn which will secure all his rights. If the plaintiff had properly described his invention as it actually exists, his patent would have been good, for then the combination would have appeared.