abatement, for the non-joinder of parties as defendants, the admission of liability as a partner, by one not joined in the suit, being good in an action against him, was held to be also receivable on this issue, to prove him a partner.1

§ 485. The proof of partnership may be answered by the defendant, by evidence of an arrangement between the parties, by which either the power of the acting partner to bind the firm, or the defendant's liability on the contracts of the firm, was limited, qualified, or defeated; provided the plaintiff had previous and express notice. The defendant may also show, that he was not a partner in the particular trade in which the transaction took place, and that the plaintiff knew the fact; or, that the partnership was previously dissolved; or, that he had notified the plaintiff not to deal with his partner, without his own concurrence.1

§ 486. In an action against the administrators of a deceased partner, the surviving partner is a competent witness to prove the partnership; for he has no interest in the matter, such an action not being maintainable at law. But in an action brought by the surviving partner, as such, the widow of his deceased partner is not a competent witness for him, her testimony going to increase the fund, of which she is entitled to a distributive share. A dormant partner is a competent witness for his partner in an action by the latter, if he releases his interest in the subject of the suit.7

1 Clay v. Langslow, 1 M. & Malk. 45.

Sed quære, and see ante, Vol. 1,

§ 395; Miller v. M'Clenachan, 1 Yeates, 144.

2 Minnett v. Whitney, 5 Bro. P. C. 489; Collyer on Partn. 214, 456; Ex parte Harris, 1 Madd. 583; Alderson v. Clay, 1 Campb. 404.

3 Jones v. Hunter, Dan. & Lloyd, 215; Collyer on Partn. 456.

4 Willis v. Dyson, 1 Stark. 164; Ld. Galway v. Matthew, 10 East, 264.

5 Grant v. Shutter, 1 Wend. 148.

6 Allen v. Blanchard, 9 Cowen, 631.

7 Clarkson v. Carter, 3 Cowen, 84. 41 *

PATENTS.

§ 487. THE remedy for the infringement of a patent right, both by statute and Common Law, is by an action on the case. From the nature of the action and the tenor of the declaration, as stated below, it is apparent that the plaintiff, under the general issue may be required, and therefore should

1 Stat. U. S. 1836, ch. 357, § 14; 1 Chitty on Plead. 131. The declaration for the infringement of this right is given by Mr. Phillips in his excellent Treatise on the Law of Patents, p. 520, as follows:-" To answer to A. of B. in the county of S. in the district of manufacturer, in a plea of trespass on the case, for that the plaintiff was the original and first inventor [or discoverer] of a certain new and useful art [machine, manufacture, composition of matter, or improvement on any art, machine, &c., taking the words of the statute most applicable to the subject of the invention] in the letters-patent hereinafter mentioned and fully described, the same being a new and useful [here insert the title or description given in the letters-patent] which was not known or used before his said invention [or discovery], and which was not, at the time of his application for a patent as hereinafter mentioned, in public use or on sale with his consent or allowance; and the plaintiff, being so as aforesaid the inventor [or discoverer] thereof, and being also a citizen of the United States [if the fact is so],1 on the day of [here insert the date of the patent] upon due application therefor, did obtain certain letters-patent therefor in due form of law under the seal of the patent office of the United States, signed by the secretary of state, and countersigned by the commissioner of patents of the United States, bearing date the

1 "It has been suggested, in a preceding part of this work, p. 408," (says Mr. Phillips in his note in this place,) "that the citizenship of the patentee need not be proved by the plaintiff, and, if so, it need not be averred. This, will, however, depend upon the construction that shall be given to the 15th section of the act of 1836, c. 357, by which, if the patentee be an alien, the defendant is permitted to give matter in evidence, tending to show that the patentee has failed and neglected for the space of eighteen months from the date of the patent to put and continue on sale to the public, on reasonable terms, the invention or discovery.' The position referred to in p. 408 assumes, that the burden on this point is, in conformity to the language of the statute, in the first instance, on the defendant. But to go on the safer side, the above form of declaring assumes the burden to be on the plaintiff to aver and prove, in the first instance, that the patentee is a citizen of the United States; or, if an alien, and the eighteen months have expired before the date of the writ, that he has put and continued the invention on sale in the Uniied States on reasonable terms."

be prepared to prove, (1.) the grant and issuing of the let ters-patent, together with the specification, and the assign

day and year aforesaid, whereby there was secured to him, his heirs, administrators, executors, or assigns, for the term of fourteen years from and after the date of the patent, the full and exclusive right and liberty of making, using, and vending to others to be used, the said invention [machine, improvement, or discovery,] as by the said letters-patent, in Court to be produced,2 will fully appear.3 And the plaintiff further says, that from the time of the granting to him of the said letters-patent, hitherto, he has made, used, and vended to others to be used, [or he has made, or has used, or has vended to others to be used, as the case may be] the said invention [machine, improvement, or discovery] to his great advantage and profit [or if he has not made, used, or vended, then, instead of the above averments, may be substituted after the word 'hitherto,' 'the said exclusive right has been and now is of great value to him, to wit, of the value of $ .']4 Yet the said D. well knowing the premises, but contriving to injure the plaintiff,5 did on the [some day after the date of the patent] and at divers times before and afterwards, during the said term of fourteen years, mentioned in said letters-patent, and before the purchase of this writ, at C. in the county of M. in the said district of " unlawfully and wrongfully, and without the

1" Act of 4th of July, 1836, ch. 357, s. 5.

2" Which the plaintiff brings here into Court. Chit. Pl. v. 2, p. 765, 5th ed. 8" The English precedents here state the making and filing of the specification, the assignment of the patent, and the recording of the assignment, if the action be in the name of an assignee, or if an assignee of part of the right is joined.

"If the patentee is an alien, and the counsel chooses to declare very cautiously, if eighteen months have expired from the date of the patent, he may here introduce the averment, that within eighteen months from the date of the patent, namely, on, &c., at, &c., he (or his assignees,) put the invention on sale in the United States, on reasonable terms, and from that time always afterwards to the time of purchasing the writ, he, (or they, or he and they) had continued the same on public sale in the United States on reasonable terms.

4" The principle upon which these averments are made is the same as that upon which, in an action for trespass upon personal property, the value of the property is alleged, by way of showing that it was a thing in respect to which the plaintiff might sustain damage. Mr. Gould says of this averment, As he (the plaintiff) is not obliged to state the true value, the rule requiring it to be stated would seem to be of no great practical use.' Gould's Pl. c. 4, s. 37, p. 187. Mr. Chitty says the above averments as to profit, by making, using, and vending, are sometimes omitted. The propriety of making the averment of the value seems to depend upon the question, whether the allegation of ownership of an article or species of personal property, or interest in it, and possession of it, imports a value to the plaintiff without specifically alleging its value; for if it does, then a ground of action distinctly appears without any such specific allegation.

5"Contriving and wrongfully intending to injure the plaintiff, and to deprive him of the profits, benefits, and advantages, which he might and otherwise would have derived and acquired from the making, using, exercising, and vending of the said invention, after the making of the said letters-patent, and within the said term of fourteen years in said letters-patent mentioned.'" Chit. Pl. 5th ed. v. 2, p. 766.

ment to him, if he claims as assignee; (2.) that the invention was that of the patentee, and was prior to that of any other person; (3.) that it is new and useful, and has been reduced to practice; (4.) that it has subsequently been infringed by the defendant; and the damages, if any, beyond a nominal sum, are claimed.

§ 488. (1.) The letters-patent, to which, in the United States, a copy of the specification is annexed as a part thereof, are proved either by the production of the originals, or by copies of the record of the same, under the seal of the patent office, and certified by the Commissioner of Patents, or, if his office be vacant, by the chief clerk. If the patent is for an improvement, and the specification refers to the former patent, without which it is not sufficiently clear and intelligible, the former patent with its specification must also

consent or allowance, and against the will of the plaintiff make [use and vend to others to be used, or did make, or did use, or did vend to others to be used, as the case may be] the said invention [machine, improvement, or discovery] in violation and infringement of the exclusive right so secured to the plaintiff by said letters-patent as aforesaid, and contrary to the form of the statutes of the United States in such case made and provided, whereby the plaintiff has been greatly injured, and deprived of great profits and advantages, which he might and otherwise would have derived from said invention; and has sustained actual damage to the amount of , and by force of the statute aforesaid, an action has accrued to him, to recover the said actual damage, and such additional amount, not exceeding in the whole three times the amount of such actual damages, as the Court may see fit to order and adjudge. Yet the said D., though requested, has never paid the same, or any part thereof, to the plaintiff, but hath refused, and yet refuses so to do."

1 Stat. U. S. 1836, ch. 357, § 4, 5. By this act, no letters-patent are to be issued until the specification is filed; which it is the duty of the clerk to enroll; and therefore no particular evidence of the enrolment is required on the part of the plaintiff. But in England, where the letters-patent are issued before the specification is filed, the party is bound to see to the enrolment of his specification within a limited time, and therefore is bound to show that this requirement has been complied with. Ex parte Beck, 1 Bro. Ch. R. 578; Ex parte Koops, 6 Ves. 599; Watson v. Pears, 2 Camp. 294.

1 "Act of 4th of July, 1886, ch. 357, s. 14."

be produced.1 Where the proof is by an exemplification, it must be of the whole record, and not of a part only. The drawings, if any, must be produced, whenever they form part of the specification.

§ 489. As letters-patent are not granted as restrictions upon the rights of the community, but to promote science and the useful arts, the Courts will give a liberal construction to the language of patents and specifications, adopting that interpretation, which gives the fullest effect to the nature and extent of the claim made by the inventor. The meaning, is a question for the Court, the words of art having been interpreted by the Jury. If there is any obscurity in them, reference may be had to the affidavit of the patentee, made and filed prior to the issuing of the patent.5 No precise form of words is necessary, provided their import can be clearly ascertained by fair interpretation, even though the expressions may be inaccurate. But if the claim is of an abstract principle or function only, detached from machinery, it is void.?

§ 490. The plaintiff must give some evidence of the sufficiency of the specification, if denied; such as, the evidence of persons of science, and workmen, that they have read the specification, and can understand it, and have practised the invention according to it; and such evidence will be suffi

1 Lewis v. Davis, 3 C. & P. 502; Phillips on Patents, p. 401, 402.

2 Blanchard v. Sprague, 3 Sumn. 535.

3 Ryan v. Goodwin, 3 Sumn. 514. Where a patent is granted for a term of years, the day of the date of the patent is reckoned inclusive. Russell v. Ledsman, 9 Jur. 557, 558.

4 Neilson v. Harford, 8 M. & W. 806.

5 Pettibone v. Derriger, 4 Wash. 215.

6 Wyeth v. Stone, 1 Story, R. 273; Minter v. Mower, Webst. Pat. Cas. 138, 141; 6 Ad. & El. 735, S. C.; Derosne v. Fairie, Id. 154, 157; 5 Tyrw. 393; 1 M. & Rob. 457, S. C.

7 Blanchard v. Sprague, 3 Sumn. 535; Wyeth v. Stone, 1 Story, R. 273; Lowell v. Lewis, 1 Mason, 187; Earle v. Sawyer, 4 Mason, 1; Phillips on Patents, p. 95-100, 109-113; Godson on Patents, ch. iii. sec. v.