be no more room for the inventor of the machine than for any one else. It may be doubtful whether such a process or product as these is by itself patentable.

Mr. Justice Grier, in delivering the opinion of the court in Corning v. Burden (15 How., 252), said:

A process eo nomine is not made the subject of a patent in our act of Congress. It is included under the general term "useful art." An act may require one or more processes or machines in order to produce a certain result or manufacture. The term "machine" includes every mechanical device or combination of mechanical powers and devices to perform some function and produce a certain effect or result; but when the result or effect is produced by chemical action, by the operation or applica tion of some element or power of nature, or of one substance to another, such modes, methods, or operations are called "processes." A new process is usually the result of discovery-a machine of invention.

In Cochrane v. Deener (94 U. S., 780) Mr. Justice Bradley said:

A process is a mode of treatment of certain materials to produce a given result. ft ́s an act or a series of acts performed upon the subject-matter to be transförined and reduced to a different state or thing.

This language of Mr. Justice Grier, with more to the same import.. was quoted with approval by Mr. Justice Bradley in Tilghman v. Proctor (102 U. S., 707). Neither of these definitions includes mere mechanical operations like the looping and drawing thread to form stitches in sewing, either by machinery or by hand; and such operations, apart from the means for performing them, do not appear to be within the reach of protection by the patent laws. O'Reilley v. Morse, 15 How... 62; Howe v. Morton, Curtis on Pats., 269; Burr v. Duryea, 1 Wall., 570. There is, of course, no doubt but that a boot or shoe might be the subject of a patent as an article of manufacture, but there would have to be something new about it as such in the sense of the patent laws. Blake did not invent a boot or shoe, nor a sewed boot or shoe, nor a boot or shoe sewed with this kind of stitches. All those were known and in use before. He invented a machine by which boots and shoes. could be sewed with this kind of stitches in parts where they could not be so sewed before. The new effect was due to the operation of the machine. The patentability belonged to the machine, and not to the boot or shoe, as appeared before.

In Collar Company v. Van Duzen (23 Wall., 530) Mr. Justice Clifford on this subject said:

Articles of manufacture may be new in the commercial sense when they are not new in the sense of the patent law. New articles of commerce are not patentable as new manufactures, unless it appears in the given case that the production of the new article involved the exercise of invention or discovery beyond what was necessary to construct the apparatus for its manufacture or production.

In this case that requisite does not appear.

Further, this machine, the process it went through with, and the work it wrought were so intimately connected that the machine could not be conceived of as an operative thing without involving the rest. The specification of the machine and its use in the machine patent included

also a description of the process and product. This is shown by the patent itself, and is proved also by the testimony of experts examined as witnesses. It also appears to have been the view taken by Judge Nixon in McKay v. Dibert, where he suggests that a surrender and reissue of this patent in divisions would have avoided the incongruity arising from the expiration of the patents at different times.

In Miller v. Bridgeport Brass Company it is strongly intimated that whatever a patentee describes in the patent and does not claim is abandoned to the public, unless it was omitted to be claimed by inadwertence or mistake and a correction is sought immediately upon dis covery of the omission. There is an allusion to the statute for defeating a patent by two years' public use and being on sale of the invention, as an illustration or reason, but the case does not seem to hold that two years are to be allowed in which to reclaim what is so described.

Lu-James v. Campbell Norton had taken out a patent December 16, 1842, for a postmarking and postage-canceling stamp containing a combination of the postmarker and blotter and cross-bar connecting them, the blotter to be made of steel or other material which would answer its purpose, and to have on its face circular cutters inclosed in circular rings to cut the postage-stamp at the time of defacing it with ink. The specification described and the drawing showed the whole. The claims were for the canceling-stamp.separately and for the combination of the cauceling-stamp with the cross-bar. On the 5th day of January, 1863, twenty days after, he made application for a patent for a postmarking and postage canceling stamp of the same construction as the other, except that the blotter was to be made of wood, cork, rubber, or similar material held by a tube fastened at one end of the cross-bar. The claims were for the blotter separately and for the blotter in combination with the cross bar and postmarking device. This patent was granted. It was several times reissued, but the validity of it as originally granted came under consideration, and especially the claim for the combination. This combination was not the same as that patented in the former patent in any sense. That was a combination of a blotter with a cross-bar only, while this was a combination of a different blotter with a crossbar and postmarker. The whole of this combination was described in the former patent, except the difference in the blotter of these patents. Mr. Justice Bradley said:

In is kardly necessary to remark that the patentee could not include in a subsequent patent any invention embraced or described in a prior one granted to himself any more than he could an invention embraced or described in a prior patent granted to third person. Indeed, not so well; because he might get a patent for an invention before patented to a third person in this country if he could show that he was the First and original inventor and if he should have an interference declared. Now, a nere inspection of the patents referred to above will show that after December, 1862, Norton could not lawfully claim to have a patent for the general process of stamping etters with a postmark and canceling stamp at the same time, nor for the general combination of a post stamper and blotter in one instrument, nor for the combination

of a post stamper and blotter connected by a cross-bar, for all these things, in one or other specific form, were exhibited in these prior patents.

The original patent was declared to have been invalid upon this ground.

As before shown, Blake's machine patent exhibited both the shoe of his product patent and mode of construction of his process patent, to which he was no more lawfully entitled than Norton was to his second patent for what was exhibited in the first. It is conceded in defendants' brief that there should be a decree for an account of license-fees against Jackman.

Let decree be entered for an account of license-fees in the case against Jackman, and dismissing the bill as to the residue, and dismissing the bills, with costs, in the other cases.

[U. S. Circuit Court-Western District of Pennsylvania.}

SHERIFF et al. v. FULTON et al..

Decided March 25, 1882.

22 O. G., $7.

1. REISSUE-LACHES-ENLARGED CLAIMS.

An inventor, having in his original patent limited his claim of invention to a specified detail of construction, cannot, after a lapse of nine years, procure . valid reissue embodying the enlarged and comprehensive claims that might bave been allowed in the original patent.

2. SAME-SAME-EQUITABLE ESTOPPEL..

An acquiescence by the patentee and his assignees for a period of nine years ita the terms of the patent as originally granted creates an equitable estoppel in favor of the public.

3. SAME-SAME-AMENDING CLAIM.

Doubted whether, after a delay of nine years, the claim of a patent can d☛ materially enlarged upon the suggestion that the original claim was defective in form and required amendment.

Messrs. Bakewell & Kerr for the complainants.

Messrs. Connolly Bros. & McTighe for the defendants.

ACHESON, J.:

This suit is upon Reissue Letters Patent No. 9,199, issued to Hugh Coll, May 18, 1880, the bill charging infringement and praying for an injunction, &c. The original letters patent, No. 110,205, were issued to Coll December 20, 1870. The invention, as the original and reissue bathe recite, consists in improvements to a siphon-pump, patented to said Coll June 8, 1869.

To the proper understanding of the case, therefore, a brief explanation of Coll's earlier letters patent, No. 90,930, dated June 8, 1869, seems necessary. They relate to the construction of a steam siphon-pump or

water elevator having outer and inner pear-shaped hollow heads, so that a jet or current of steam shall elevate water and discharge it through and from either or both the heads. These heads, respectively, have one end tapered down to the form of a tube or pipe, thus forming inner and outer discharge-pipes, the inner one being much smaller than the outer ne. A steam-injection pipe is screwed into or cast on the other or rear end of the outer head and extends some distance into the inner head, which latter at its rear end is screwed on or otherwise fastened to or cast on the injection-pipe. Back of the discharging end of the steam-injection pipe inlets or openings are made in the inner head. The steam passing out of the injection-pipe into the inner discharge-pipe, and thence into and through the outer discharge-pipe, produces a vacuum in the heads, and The water coming up the induction-pipe to fill the vacuum is caught by the flow of steam and forced out of the discharge-pipes, and a regular current is established, which is kept up by the continuous pressure of the steam. By closing up the annular space between the two dischargepipes the water may be discharged entirely through the inner dischargepipe, being slightly warmed by this method. The claim in this patent is exclusively for the combination of the inner and outer pear-shaped reads with the injection-pipe.

The invention secured by the letters patent of December 20, 1870 (No. a10,205), is therein declared to be an improvement on Coll's said pat ented siphon-pump, and to consist "in modifications of form and construction," whereby it is adapted to new uses or made to accomplish old results in a better manner. The outer head being of the usual construc. tion and having the usual water inlet opening and an opening for the insertion of the steam-injection pipe, the material modification is stated to consist in cutting off the base or blunt end of the inner pear-shaped head at or near the broadest part and connecting this head in casting to the outer head by means of radial arms.

In the specification the patentee states the advantage thereby secured to be as follows:

This inner head, d, having a large unobstructed opening at its base, I have devised anore particularly for use in pumping or ejecting bilge-water out of tan-vats, &c. As some tan-bark is necessarily carried up with the water, the holes or passages are apt to become clogged, unless ample room be left for the flow of both. I thus adapt the louble head to the uses described.

The first claim of this patent (which is the principal and only material one) is in these words:

1. The inner head, d, open at its rear end, so as to leave an obstructed opening round the steam-injection pipe for the passage of such pieces of such solid matter as ay be brought up by the water, such inner head, d, being connected to the outer head, a, by means of radial arms a, all arranged substantially as described.

The application for the reissue (No. 9,199) was filed March 13, 1880, and is dated May 18, 1880. The specification of this reissue, after describing the invention and its advantages substantially as the original Specification (No. 110,205) did, and stating that "this ejector operates

on the same principle as my ejector patented June 8, 1869, does," proceeds to set forth other advantages neither mentioned nor hinted at in the original specification (No. 110,205), viz: that the jet of steam is protected and surrounded by the inner head, which acts as a breakwater or dam to break the force or impact of the inflowing current, and hence does not condense so rapidly as in the old form of ejectors, where it came directly in contact with the whole volume and unbroken force of the inflowing water in the outer head, and the force of the steam jet is thereby preserved; that the forward end of the outer chamber is closed and the entire discharge is through the inner head, and that the rear opening of the inner head extends over the induction-opening, and acts as a breakwater to deflect and turn the inflowing stream of water to the back part of the outer head and break its force.

The reissue (No. 9,199) has but one claim, which is as follows:

A water-ejector provided with an inner head or shell extending backward over the water-induction opening, and arranged with relation to the jet-pipe so as to protect the steam-jet from the direct impact of the inflowing current of water, the inner end of said head being provided with a large unobstructed opening, through which all the water passes to the discharge-outlet of the ejector, substantially as and for the purpose described.

Upon a comparison of the original patent of December 20, 1870, with the reissue, it is manifest that the claim made in the reissue is a great expansion of the original. Clearly, the original patent did not cover, and could not rightfully cover, the inner head itself, for Coll's earlier patent showed an inner head, which, moreover, surrounded and protected the steam jet from the direct impact of the inflowing current of water and operated to retard the condensation of the steam.

The specification of the patent of 1870 declares that invention to consist in modifications of form and construction" of Coll's siphonpump theretofore patented. These modifications are distinctly set forth and explained in the body of the specification and are specifically claimed. In lieu of the inlets at the rear end of the inner head, the blunt end of this head is cut off, and at its rear end an obstructed opening is left around the steam-injection pipe for the passage of such pieces of solid matter as may be brought up with the water. It is an essential feature of the device that the steam-injection pipe shall be inserted through the usual opening in the outer head into the inner head. Coll himself, testifying in this case in behalf of the plaintiffs, states that the difference between his patents of 1869 and 1870 is "a difference of construction only," and that "the difference is in the large unobstructed opening in the rear of the inner head, and the manner in which the head is secured to the outer head, and putting this nozzle in and across the space between the inner and outer heads." All this plainly appears both by the specification and the drawing, and is specified in the claim. Undoubtedly the claim is for the specific device described. But we search the reissue in vain for such limited claim. It has disappeared from the patent, and substituted therefor is a sweeping claim, covering