BLATCHFORD, J. :

The first claim of the patent, the only one infringed, is for pressing and binding short-cut hay into bales. Short-cut hay was known before. Pressing and binding it into bales made no change in its properties or quality, but enabled it to be more conveniently handled for sale as merchandise and for transportation. The profits to which the plaintiffs are entitled do not include any profits of converting long hay into short-cut hay. They include only the profits of pressing and binding into bales short-cut hay-hay after it is cut short. They do not include, either, any profits on the hay as hay except such profits as resulted from the fact that, as short-cut hay, it was pressed and bound in bales, such lastnamed profits being the extra profits due to selling the short-cut hay pressed and bound in bales over selling it as loose short-cut hay, or as short-cut hay manipulated for market in some prior-known way. The master appears to have reported profits on cutting the hay and also other profits on the hay as hay than those above specified as allowable. The third exception must therefore be allowed. It was the duty of the plaintiffs to give evidence separating the profits above defined. In the absence of such proof only nominal profits can be allowed. It is also manifest that the master, in fixing one dollar a ton as profit in respect of the matter covered by the second exception, included profits on cutting hay and the other improper profits above mentioned. The seeond exception is allowed. For the same reasons the fourth exception is allowed, and also the first.

The report is set aside, and the case is referred back to the master with liberty to the plaintiffs to apply to him for leave, to be granted or refused, in his discretion, to give further proofs as to profits, and for a further report from him based on the principles above laid down.

INDEX.

[The names of U. S. court cases are designated by an asterisk, (*;) State courts by a double dagger (†.)]
ABANDONED APPLICATIONS.

SECTION 4894 REVISED STATUTES-APPLICATION, NOT INVENTION, ABANDONED-
Section 4894 Revised Statutes, which provides that upon failure to prosecute an
application within two years after action is had thereon by the Patent Office it
shall be regarded as abandoned, refers to the application, not the invention, and
does not prevent a subsequent application for the same invention. Lindsay v.
Stein, 245.

ABANDONED EXPERIMENTS. See Particular Patents, 77, Spring; Prior Use, 1.
ABANDONED INVENTIONS. See Abandoned Applications, 1; Prior Use, 1; Reissues,

37.
ABANDONMENT.

See Abandoned Applications, 1; Priority of Invention, 1, 2, 3; Reis-
sues, 2, 23, 37.

ACCOUNT OF PROFITS. See Bill in Equity, 1, 3, 4; Damages and Profits.
ACQUIESCENCE. See Infringement, 8; Injunction, 13; Practice in the Courts; Reissues,
25; Right to Use. 1.

ACTION AT LAW. See Bill in Equity, 1, 2; Construction of Statutes, 1, 2; Damages and
Profits, 8.

ADMISSION OF TESTIMONY. See Answer to Bill 1; Construction of Specifications and
Patents, 7; Defenses 2; Preliminary Statement, 1; Testimony.

AFFIDAVITS. See Injunction, 4, 12.

AGENTS. See Contracts 1, 2.

AGGREGATION. See Combinations 2, 4; Construction of Specifications and Patents, 6;
Non-Invention, 3; Non-Patentability, 1, 2.

AGREEMENT. See Contracts, 3, 5; Licenses, 5.

AMBIGUITY. See Construction of Claims, 2.

AMENDMENTS. See Applications, 2; Reissues, 26, 27.

AMENDMENT TO ANSWER. See Answer to Bill, 1, 2.

AMENDMENTS TO APPLICATION. See Applications, 2.

1. AMENDMENTS OF APPLICATION WHEN FILED MUST CONFORM TO RULE 69.—An
application cannot be amended at the will of the applicant before it is taken up
for examination. Rule 69 attaches upon the filing of the application, which
occurs when the applicant has completed his application, as provided in Rule 31.
Ex parte Snyder, 22.

2. AMENDMENT-RULE 47.-The case of McDougall (21 O. G., 1783) was not intended
to open the door to the admission into an application once completed of any and
all inventions made prior to the date of filing the original application. Id.

3. SAME-SAME-MAY CORRECT But Not CHANGE THE APPLICATION.—The appli-
cant may be permitted, upon proper occasion, to supplement his description or
drawing by restoring features of the original invention which were inadvertently

AMENDMENTS TO APPLICATION-Continued.

omitted or incorrectly shown in the original disclosure through a clerical error
of the draftsman or the unfamiliarity of the inventor with official forms. He
cannot be permitted, however, to change and alter his application to represent
a different invention. Id.

AMENDMENT TO PRELIMINARY STATEMENT. See Preliminary Statement, 1, 2.
ANALOGOUS DEVICES. See Designs, 6, 7, 8; Infringement 2, 3, 4, 5, 6, 7, 9, 10, 11,
12, 13, 14, 17. See Injunction, 9; Prior Use, 1.

ANSWER TO BILL. See Defenses, 2; Demurrer, 1; Motion to Strike Plea from Files, 1;
Prior Use, 2; Reissues, 40.

1. AMENDMENT OF ANSWER-DOES NOT LET IN INADMISSIBLE TESTIMONY AL-
READY TAKEN.—Where evidence of anticipations not set up in the answer has
been taken, and a motion afterward made to amend the answer, the granting of
such motion would not make that evidence admissible which was taken under
objection before the amendment. *Allis v. Buckstaff et al., 480.

2. SAME DISCRETION OF COURT IN SUCH CASES.-But it is discretionary with the
court in such a case, especially after the objecting party has fully cross-exam-
ined the witnesses and taken rebutting proofs, either to let the testimony stand
in the case or to strike it out and permit the defense to take the testimony anew
under the amended answer. *Id.

ANTICIPATION. See Answer to Bill, 1; Infringement, 14; Particular Patents: 29 Gardner,
30 Gosling, 43 Hibbard, 56 Miller et al., 69 Rice, 70 Root, 81 Stow, 84 Vinton;
Prior Use, 1.

PITCHING BARRELS-Prior PUBLICATION.-The invention is anticipated by the
prior German publication, Der Bierbrauer, describing a method of drying the in-
terior of casks or vessels by warm or hot air by an apparatus substantially like
the plaintiff's in construction, mode of operation, and effect, and differing only
in the particular that the hot air is drawn from the furnace through an exhaust-
passage by a fan located between the furnace and valve, and thence driven with
the products of combustion into the cask. The applicant has merely applied
the old devices to a new use. *Gottfried v. The Crescent Brewing Co., 355.
APPARATUS AND PROCESS. See Reissues, 35, 44.

APPEALS. See Costs of Suit, 1; Decree, 1; Labels, 6.

APPLICATION. See Abandoned Applications, 1; Amendment to Applications, 1, 2, 3; Date

of Application, 1; Design Application, 1; Interferences, 2; Renewed Applications, 1.
1. CONTINUOUS APPLICATION-PUBLIC USE.-Where a second application is filed
for a certain part of an invention disclosed in a prior application the two appli-
cations will be regarded as a continuous proceeding, and public use of the inven-
tion, to defeat a patent granted upon such second application, must be shown to
have occurred more than two years prior to the first application. *Graham v.
McCormick et al., 229.

2. AMENDMENT OF APPLICATION-New Matter-SUPPLEMENTAL OATH.-Under
Rule 47 an applicant may introduce into his application by amendment a part
of the invention originally made which was not incorporated into the applica-
tion either as a part of the specification or claim, if he swears that the matter
which he desires to introduce into his application and make a part thereof was
a part of his original invention. Ex parte McDougal, 7.

3. SAME-SAMe-Date of COMPLETION OF APPLICATION CHANGED.-Under this
practice, however, the Examiner will enter the date of the new oath on the face
of the file-wrapper and change the date of the completion of the filing of the
application to agree therewith. Id.

ASSIGNEES. See Contracts, 5; Damages and Profits, 8; Partics to suit, 2.
ASSIGNMENTS. See Contracts, 1, 2, 4; Date of Application, 1; Damages and Profits, 8;
Employés, 2, 3; Licensees, 4; Licenses, Public Use, 5; Right to Use, 1; Sale of
Patent by Order of Court, 2; Title to Patent.

1. EQUITY.-Between equal equities the law will prevail. *Wright, v. Randel
et al., 94.

2. ASSIGNEES SUPERIOR TITLE.-Bona fide purchasers, for value, without notice,
under an instrument of assignment which was duly recorded, whereby interests
are assigned in an unpatented invention, and wherein the Commissioner is re-
quested to issue the patent to such assignee, as was duly done, can convey a
good title to such patent as against prior assignees of a prior patent which was
issued to the same inventor, to whom such inventor at the same time assigned
interests in new inventions which he had made, of which the invention above
referred to was one, the prior instrument of assignment having been executed
and recorded first, and the invention the nature of which was definitely referred
to in such prior instrument having been made before any of such assignments.
*Id.

3. REVISED STATUTES SECTION 4898, CONSTRUED

RECORDS.-Section 4898 of the
Revised Statutes does not provide for the recording of assignments, grants, and
conveyances of interests in patents not yet issued. *Id.

4. REVISED STATUTES, SECTION 4895, CONSTRUED CONSTRUCTIVE NOTICE-REC-
ORDS.-Section 4895 of the Revised Statutes makes no provision for the record-
ing of an assignment of an unpatented invention on which the patent is not to
be issued to the assignee; therefore its record is not constructive notice of its
contents to one who subsequently deals with a party to it in respect to its sub-
ject-matter. *Id.

5. ASSIGNMENTS OF PATENTS—Not Under SeAL.-Assignments of patents are not
required to be under seal. The statute simply provides that "every patent or
any interest therein shall be assignable in law by an instrument in writing."
* Gottfried v. Miller, 120.

6. SAME SAMe-Particular CONTRACT.-An assignment therefor, purporting on
its face to be the contract of the corporation therein named, declaring that the
consideration has been received by the company, that it is executed in pursu-
ance of a resolution passed by the company and purporting to be signed by
Smith, president of the company, who declares that he signs it as the act of the
company, is transfer of said company and not the personal deed of Smith. *Id.
ASSIGNMENT OF UNPATENTED INVENTIONS. See Assignments, 2, 3, 4.
ATTACHMENT. See Motion for Attachment, 1; Title to Patent, 1.

BAR TO A PATENT. See Foreign Publications, 1; Priority of Invention, 4.
BAR TO REISSUE.

See Reissues, 24, 25, 30, 37.

BAR TO SUIT. See Motion to Reopen, 1.

SUIT BARRED BY FORMER SUIT.-This suit barred by the decree in the former suit
between the same parties and upon the same issues, in which it was held that
the invention claimed by the plaintiff was anticipated, and that his patent was
invalid. *Barker v. Stowe, 327.

BILL IN EQUITY. See Answer to Bill; Bar to Suit; Injunction, 6; Licensees, 1; Practice
in the Courts, 1, 4; Priority of Invention, 7, 8 9; Proceedings in Equity; Sale of

Patent by Order of Court, 1, 2.

7891-35