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COMBINATIONS-Continued.

2. CONSTRUCTION OF PATENTS-COMBINATIONS.-In cases where none of the ele-
ments of a combination are new or are claimed separately and there are other
similar kindred combinations in use, the evident tendency of late decisions
18 to limit the patentee to the particular form of the various elements com-
posing the combination shown by his drawings. * Heine Safety Boiler Com-
pany v. Smith Feed Water Healer and Purifier Company, 499.

3. SAME-VALIDITY.—If the claim in Letters Patent No. 304,195, granted August
26, 1884, to Hermann Heine, were to receive a broader construction, it is by no
means certain that it is valid and ought to-be sustained, in view of the state
of the art when the patent issued. *Id.

4. COMBINATIONS-PATENTABILITY.-The rearrangement of an old combination,
when each element operates practically as before, is not patentable unless a
new or greatly-improved result is obtained. *Consolidated Roller Mill Com-
pany v. Coombs, 526.

COMMISSIONER OF PATENTS. See Abandoned and Rejected Files, 2, 4; Appeal
to the Commissioner; Interference, 7, 8, 9, 10, 11; Limitation of United States
Patents by Foreign Patents Preriously Granted, 4; Motion to Dissolve Interference,
8; Practice in the Patent Office, 1, 2; Priority of Invention, 4, 5; Rehearing,
6, 7, 8, 10, 13, 14, 17; Reissues, 4; Rejected Applications.
DUTIES OF THE COMMISSIONER DEFINED-WHICH ARE SUBJECT TO REVIEW.-
The duties of the Commissioner of Patents are in part administrative and in
part of a judicial nature. In the discharge of the latter duties he acts as the
direct representative and agent of the law, subject to no appeal excepting to
the tribunals expressly designated by statute. The ruie limiting the right
of an administrative officer to review his predecessor's decision to the three
cases specified may be applicable to the Commissioner in his capacity as an
administrative officer; but it is clear that it is not binding upon the Commis-
sioner in the discharge of his judicial duties. Daniels v. Morgan, 150.
CONCEPTION OF INVENTION. See Abandoned Applications, 3; Invention, 16;

Priority of Invention, 7, 8, 9.
CONSTRUCTION OF CLAIMS. See Anticipation; Infringement, 3, 5, 6, 7, 8, 11, 13, 17.
1. CLAIM CONSTRUED AND RESTRICTED.

The prior state of the art and the express language of the specification in
Letters Patent No. 180,857 combine to restrict the second claim to the use of
a stencil made by the electric pen. * Edison et al. v. Klaber, 494.

2. CONSTRUCTION OF CLAIMS.-Claims of patents should receive such interpretation
as will enlarge or restrict them, so as to cover the actual invention, when not
absolutely inconsistent with the language used by the patentee. (Winans v.
Denmead, 15 How., 330; Van Martyr v. Miller, 15 Blatchf., 562.) If, upon the
one hand, the state of the art shows the invention to have been a narrow one,
a strict interpretation will be given the claims. (Manufacturing Company v.
Ladd, 102 U. S., 408.) And it is of no practical consequence whether such re-
strictions are imposed by the Patent Office or not. (Toepfer v. Goetz, 41 O. G.,
933; C. D., 1887, 608.) If, upon the other hand, the patentee has taken a
decided step in advance of the state of the art at the time his application
was filed, the courts will, if possible, construe the language of his claim so
as to give him the full benefit of his improvement. (Turrill v. Railroad
Company, 1 Wall., 491; Rubber Co. v. Goodyear, 9 Wall., 788.) * Consolidated
Roller Mill Company v. Coombs, 526.

3. ENLARGEMENT of Scope of CLAIM.-The claim as allowed defines the patent-
ee's invention, and it ought not to be enlarged beyond the fair interpretation
of its terms. It would not be justifiable to import into the claim an element
which would operate to so enlarge its scope as to cover an invention in no
nanner indicated upon its face. Day v. The Fair Haven and Westville Rail-
way Company, 647.

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CONSTRUCTION OF CLAIMS-Continued.

4. CONSTRUCTIon of Claim-DEVICE SHOWN BUT NOT CLAIMED.—The court below
having decided where certain devices were shown in the drawing of the patent
but not in terms referred to either in the specification or in the claims as a part
of the invention, nor in anyway alluded to, except incidentally in the specifi-
cation, that the claims could not be thereby limited by construction to make
such devices an essential feature of the invention, Held that the construction
the court gave to the claims of the patent as originally issued was indisputa-
bly correct. * Roemer v. Neumann et al., 654.

5. CONSTRUCTION OF CLAIM.-Where a patentee, on the rejection of his applica-
tion, inserts in his specification, in consequence, limitations and restrictions
for the purpose of obtaining his patent, he cannot, after he has obtained it,
claim that it shall be construed as it would have been construed if such limit-
ations and restrictions were not contained in it. * Roemer v. Peddie et al., 686.
6. INFRINGEMENT.--Where the complainant after the rejection of his application
inserted a statement in his specification to the effect that in his lock-case he
dispensed with an extended bottom plate, and in his patent confined his claim
to a lock-case with sides notched near its ends to receive and hold the handle-
rings of a traveling-bag, and the defendants' lock-case did not have notches
in its sides, but the notches were in the sides of an extended struck-up bot-
tom plate, Held that there was no infringement. *Id.
CONSTRUCTION OF RULES. See Abandoned and Rejected Files, 1,2; Appeal to the
Commissioner, 2, 3; Appeal to the Examiners-in-Chief, 2, 3; Assignees, 1, 2;
Cross-References; Examination of Applications, 1; Interference, 7, 8, 9, 14, 17, 20,
21, 22; Motion to Dissolve Interference, 1, 2, 4, 5, 7, 8; Oath; Particular Patents,
21, 22; Priority of Invention, 3; Rehearing, 13, 18; Withdrawal of Cases from
Issue, 1, 2.
CONSTRUCTION OF SPECIFICATIONS AND PATENTS. See Aggregation; Assign-
ment of Void Patents; Change of Structure; Citizenship; Combinations; Construc-
tion of Claims; Disclaimerɛ, 1; Infringement, 2, 3, 4, 5, 6, 7, 8, 11, 12, 13, 16,
17, 21, 22; Invention; Invention Described but not Claimed; Joint Invention ;
Limitation Imposed by the Patent Office; Limitation of United States Patents
by Foreign Patents Previously Granted; Mechanical Skill; Oath of Applicant, 2;
Particular Patents; Patents; Public Use; Reissues.

1. MATERIAL NOT ESSENTIAL.—The slide employed in the Brinkerhoff instrument
and covered, broadly, by the first claim of the patent is made of metal. The
patent makes no mention of any novelty existing in the material of which
the slide is composed. Held that the claim is anticipated by a glass slide in a
similar instrument. Brinkerhoff v. Aloe, 281.

2. LIMITATION IMPOSED BY PATENT OFFICE.-The intimation in Sargent v. Hall
(114 U. S., 38; C. D. 1885, 251) that the limitations introduced into an appli-
cation after it was persistently rejected must be strictly construed against
the inventor and in favor of the public, and looked upon as in the nature of
disclaimers, means no more than that when under the state of the art and the
action of the Office a patentee of a combination has modified and limited his
claim he shall be held strictly to the combination as he has described it. It
does not debar the patentee from the benefit of the doctrine of equivalents.
*Rodebaugh et al. v. Jackson et al., 435.

3. SCHILLINGER-CONCRETE PAVEMENTS-REISSUE.-Reissued Letters Patent No.
4,364, granted May 2, 1871, to John J. Schillinger, for an improvement in
concrete pavements, as it stood after the filing of the disclaimer (March 1,
1875), was not open to the objection that it was not for the same invention as
that of the original Patent No. 105,599, dated July 19, 1870. *Hurlbut v.
Schillinger et. al., 459.

CONSTRUCTION OF SPECIFICATIONS AND PATENTS-Continued.

4. SAME-INVENTION CONSTRUED. -Thus sustained and construed the invention is
held to consist in dividing the pavement into blocks, so that one block can be
removed and repaired without injury to the rest of the pavement, the divis-
ion being effected by either a permanent or a temporary interposition of
something between the blocks. *Id.

5. INFRINGEMENT.-The use of a bottom layer of coarse cement, and placing on it a
course of fine cement, and dividing the upper course into blocks by a trowel
run partially or wholly through the upper course while it is plastic, in a line
coincident with the joints between the sectious in the lower layer, accom-
plishes the substantial results of Schillinger's invention, in substantially the
way devised by him, and is within the patent as it stands after the disclaimer.
*Id.

6. DISCLAIMER-INFRINGEMENT.

The patent might be held to be invalid on ac-
count of its covering the product, of which the patentee is not the inventor,
and which is a material and substantial part of the thing patented (R. S.
4920;) but regarding this as claimed through inadvertence, accident, or mis-
take, without any willful default or intent to defraud or mislead the public,
the patentee may file a disclaimer to the second claim now, and thereupon
have a decree for the infringement of the first claim, without costs. "Hake
v. Brown et. al., 470.

7. DESCRIPTION.—The description in the specification of the patent, which, it should
be remembered, is addressed to persons skilled in the particular art to which
the invention relates, is sufficiently explicit to enable a person skilled in the
art to practice the invention. *Am Ende v. Seabury & Johnson, 485.

8. MATTERS OF COMMON Knowledge OF WHICH THE COURT WILL TAKE JUDICIAL
NOTICE. The Court will take judicial notice of matters of common knowl-
edge, such as a strap used by the driver at the front of an omnibus to open
and close the rear door, devices for opening or closing valves at a distance in
steam and hydraulic apparatus, and devices used at railway switches for
opening and closing the rails. *Aron v. The Manhattan Railway Company, 650.
9. SAWYER AND MAN-CLAIM VOID-ANTICIPATION.-Such a claim is void for want
of novelty, in view of the fact that wood charcoal had previously been used
for electric lighting in incandescent lamps. The Consolidated Electric Light
Company v. McKeesport Light Company, 657.
10. SAME AMENDMENT TO APPLICATION.-The original application of Sawyer and
Man, filed January 9, 1880, for a patent for improvements in incandescing
electric lamps, was evidently intended to secure only the arched form of the
carbon burner; but in 1885, after Edison's inventions had been published to
the world, the purpose of the application was changed to secure the use of
all carbons made of fibrous material. Held that such a change was not justifi-
able and the claim based thereon is void. *Id.

11. DISCLAIMER-COMBINATION.-—A patentee will not be permitted to say that cer-
tain specified elements of his combination claim are not essential to the com-
bination. Watson v. The Cincinnati, Indianapolis, St. Louis & Chicago Rail.
way Company, 677.

CONSTRUCTION OF STATUTES. See Abandoned Applications, 5; Abandoned and
Rejected Files, 3; Claims; Copyrights; Interference, 9; Limitation of United
States Patents by Foreign Patents Previously Granted; Marking Goods, “Patent
Applied for"; Oath of Applicant, 1; Patents, 2; Public use, 1,3,4; Suits in Equity
for a Patent under section 4915, Revised Statutes; Trade-Marks 20, 23, 24.

CONTEMPT OF COURT. See Motion for Attachment for Contempt.

CONTINUOUS APPLICATION.

CONTINUING APPLICATIONS.-A second application cannot legally be considered a
continuation of a first or earlier application by the same inventor unless it
contains the same invention. Green v. Hall et al., 110.

CONTRACTS. See Assignments, 1; Rehearing, 6.

COPIES OF ABANDONED OR REJECTED FILES.
Files, 2, 4, 5.

COPYRIGHTS. See Jurisdiction, 1.

See Abandoned and Rejected

1. COPYRIGHT.-Although there can be no copyright in the opinions of judges,
or in the work done by them in their official capacity as judges, yet there is
no ground of public policy on which a reporter who prepares a volume of
law reports, of the character of those in this case, can, in the absence of a
prohibitory statute, be debarred from obtaining a copyright for the volume.
which will cover the matter which is the result of his intellectual labor.
*Callaghan et al. v. Myers, 304.

2. SAME RIGHTS OF REPORTER OF DECISIONS THERETO.-Even though a re-
porter may be a sworn public officer, appointed by the authority of the gov.
erument which creates the court of which he is made the reporter, and even
though he may be paid a fixed salary for his labors, yet, in the absence of
any inhibition forbidding him to take a copyright for that which is the law-
ful subject of copyright in him, or reserving a copyright to the government
as the assignee of his work, he is not deprived of the privilege of taking out
a copyright, which would otherwise exist. *Id.

3. COPYRIGHT-SECTION 4963 CONSTRUED-PENALTY.-The language of section
4963, Revised Statutes, providing a penalty for falsely marking articles
66 "Copyrighted," is not "for each copy," and while it may be true that if
upon different days, under different circumstances, separate copies are
printed, each transaction thus separate would constitute a separate offense,
yet when the printing of many copies is a single continuous act only one
offense is committed thereby. Taft v. The Stephens Lithographing and

Engraving Company, 488.

4. SAME-SAME-ARTICLES NOT COPYRIGHTABLE.-The law is clear that no offense
is committed when the word "Copyrighted" is placed upon an article that
is not the subject-matter of copyright-that cannot be copyrighted. *Id.

5. Demurrer.-It being alleged in the petition that the print is not the subject of
copyright, the demurrer sustained.
* Id.

CORPORATIONS. See Damages and Profits, 7. Service of Process.

CORRECTION OF DEFECTIVE PATENT. See Defective Patents, 3, 4, 5.
COURT OF CHANCERY. See Assignments, 1.

CROSS-REFERENCES. See Reference to Another Pending Application.

WHAT IS SUFFICIENT CROSS REFERENCE UNDER RULE 43.-A cross-reference
which refers by serial numbers only to applicatious which may never mature
into patents is not sufficient and not in compliance with Rule 43. Cross-ref-
erences must be of such nature that they will impart a more or less definite
conception of their scope. It cannot be assumed that all applications will
mature into patents, nor can it be permissible that they shall refer for pur
poses of construction or interpretation to instruments to which the public
has no access. Ex parte Everitt, 213.

DAMAGES AND PROFITS. See Licensees; Master's Report; Measure of Damages;
Suits for Infringement; Use of Patented Articles.

1. DEFECTIVE PATENTS-WHAT PROFITS TO BE ACCOUNTED FOR.-In this instance
there can be no accouuting for profits earned subsequently to the suit, which
was not tenable at the date of its commencement.

Shepherd & Company, 263.

*Marsh et al. v. Nichols,

DAMAGES AND PROFITS-Continued.

2. MEASURE OF DAMAGES.-It is a general rule in patent causes that established
license-fees are the best measure of damages that can be used. In this case
the master excluded certain liceuse-fees as the basis of computing damages
on the ground that they were practically settlements of pending litigations
between the complainants and the parties taking said licenses, made with one
exception after the commencement and during the pendency of this suit.
Held that those licenses were in full operation when the defendants elected
to resume their infringing manufacture; that they are competent evidence
as bearing upon the fair market value of the privilege which the infringers
have wrongfully undertaken to exercise, and that the defendants took the
risk of being compelled to pay damages on the basis of the rate of license
thus established. *Cary et al. v. The Lovell Manufacturing Company (Lim-
ited,) 421.

3. INFRINGEMENT-ESTIMATING DAMAGES.-The basis for estimating damages for
infringement should be the amount of profit or savings made by the use of
the infringing device over what could have been made by the use of devices
free and open to the public. *McMurray et al. v. Emerson, 441.

4. MEASURE OF DAMAGES-ROYALTIES.-In order that a royalty may be accepted
as a measure of damages against an infringer who is a stranger to the license
establishing it, it must be paid or secured before the infringement complained
of; it must be paid by such a number of persons as to indicate a general ac-
quiescence in its reasonableness by those who have occasion to use the inven-
tion, and it must be uniform at the places where the licenses are issued.
*Rude et al. v. Westcott et al., 543.

5. Same-PROOF OF DAMAGES.Where complainants have failed to establish a roy-
alty as measure of damages, and no evidence of the value of the invention to
defendants is adduced, except the conjectural estimates of witnesses who had
no practical knowledge of the subject, a decree for anything more than nomi-
nal damages cannot be sustained. *Id.

6. INFRINGEMENT, ACCOUNTING.-Under section 4921 of the Revised Statutes, where
a decree is given in a suit in equity restraining the infringement of a right
secured by patent, the court may also decree a recovery of the profits arising
from such infringement and the damages the plaintiff has sustained thereby.
*Asbestine Tiling and Manufacturing Company v. Hepp et al., 622.

7. MUNICIPAL CORPORATION-INFRINGEMENT OF PATENT.-Where the council of
Portland authorizes a contractor to lay a sewer in cne of its streets in pursu-
ance of a power contained in its act of incorporation, and in so doing the
contractor infringes upon the patent of another for making sewer-pipe, the
act being a corporate one for the benefit of the corporation, it is liable for
such infringment the same as a private corporation or person. *Id.
DATE OF DEFECTIVE PATENT. See Defective Patents, 4, 5.

DATE OF FILING APPLICATIONS. See Interference, 20.

DECREE.

1. PRACTICE IN THE COURTS.—The facts are set forth in the statement. The Court
held that the whole basis and foundation of the present suit had disappeared
by reason of its decree in a former case, and that the cause should be remanded
to the circuit court with instructions to allow the appellant, defendant below,
to tile such supplemental bill as he may be advised, in the nature of a bill
of review, or for the purpose of suspending or avoiding the decree, upon the
new matter arising from the reversal of the decree in the former case. *Bal-
lard v. Searls, 428.

2. INFRINGEMENT.-To justify a decree for infringement actual proof must be pre-
sented of the defendant's illegal acts. It will not do to substitute therefor
suspicion and conjecture. *Winne v. Bedell, 690.

EDICATION TO THE PUBLIC. See Abandonment.

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