Gambar halaman

Brooklyn etc. R. Co. 19 Blachf. (U. 2 Fish. Pat. Cas. 461; Pitts v. Wemple, S.) 473; s. C., 14 Fed. Rep. 457.

1 Biss. (U. S.) 87; Northwestern Fire One or two successful applications Extinguisher Co. v. Philadelphia Fire are sufficient. Miller v. Foree, 9 Fed. Extinguisher Co., 1 Bann. & Ard. Pat. Rep. 603; s. C., 21 Pat. Off. Gaz. 947. Cas. 177.

Insuficient Use.-If a process is prac- Reduction into Practice Does Not Mean ticed once as an experiment and then Necessarily Putting Into Use.—“Reducabandoned, it will not be an obstacle tion to practice” does not necessarily to the right of a subsequent inventor. mean bringing the invention into use. Piper v. Brown, i Holmes (U. S.) 20. Heath v. Hildreth, 1 Cranch Pat. Dec.

What is Experiment Only.-In most 96; Perry v. Cornell, i Cranch Pat. cases a sufficient use of the alleged Dec. 132; Coffin v. Ogden, 3 Fish. Pat. prior invention must be shown to prove Cas. 640; s. C., 7 Blatchf. (U. S.) 61. that it will accomplish what is claimed; But putting the invention into a form otherwise it rests in the region of mere ready for practical use. Coffin v. Og. experiment. Chicago etc. R. Co. v. den, 3 Fish. Pat. Cas. 640; s. c., 7 Sayles, 97 U. S. 554.

Blatchf. (U. S.) 61; Heath v. Hildreth, The party alleged to have made the Cranch Pat. Dec. 96. prior invention, must have proceeded But it need not be carried to a point so far as to have entitled himself to a where there cannot be any subsequent patent. Allen v. Hunter, 6 McLean improvement, and any practical utility, (U. S.) 303.

however small, is sufficient to show the Contra, Hildreth v. Heath, 1 Cranch invention completed. Johnson v. Root, Pat. Dec. 95.

i Fish. Pat. Cas. 351. If a person understood his invention A completed invention signifies that and applied it successfully in one or the invention should be of some practwo instances, it is a sufficient reduction tical utility; it need not be of a high to practice to defeat the claim of a sub- degree. Johnson v. Root, i Fish. Pat. sequent inventor. Miller v. Foree, 21 Cas. 351. Pat. Off. Gaz. 947; s. c., 9 Fed. Rep.603; A perfected invention is one that is Rich v. Lippincott, 2 Fish. Pat. Čas. 1. brought to such a condition as to be

If the machine was complete, capa- capable of practical use. Hayden v. ble of working and known to at least Suffolk Mfg. Co., 4 Fish. Pat. Cas. 86; five persons, was put into use, tested aft'g 3 Wall. (U. S.) 315. and successful, it will invalidate a sub- A written description of a machine, sequent patent. Coffin v. Ogden, 18 although illustrated by drawings, which Wall. (U. S.) 120.

has not been given to the public, does Extent of Use Necessary.- Where the not constitute an invention within the invention has been put into greater or meaning of the Patent Laws. Evidence less use, or extent of diffusion of that such a description was made does knowledge, it is not criterion whether show, of itself, a prior invention. it invalidates a subsequent patent. Such a description has not the same Rich v. Lippincott, 2 Fish. Pat. Cas. I; effect as a printed publication. It Spring v. Packard, 1 Bann. & Ard. Pat. lacks the essential quality of such a pubCas. 531.

lication, for even though deposited in The prior machine must be perfect the Patent Office, it is not designed for and capable of being used; it is not general circulation, nor is it made acnecessary that it should have been used. cessible to the public generally, being Parker v. Ferguson, i Blatchf. (U. S.) so deposited for the special purpose of 407; Pitts v. Wemple, 2 Fish. Pat. Cas. being examined and passed upon by 10; s. C., 1 Biss. (U. S.) 87.

the Patent Office, and not that it may The use of a successful invention thereby become known to the public. which needed no change of mechanism, Although it may incidentally become may be entirely discontinued without known, the deposit of it is not a publiits ceasing to anticipate a subsequent cation of it within the meaning of the invention. Shoup v. Henrici, 2 Bann. statutes of the law. Moreover, al& Ard. Pat. Cas. 249; Waterman v. though the description may be so full Thompson, 2 Fish. Pat. Cas. 461; Mc. and precise as to enable any one skilled Nish v. Everson, 2 Fed. Rep. 899. in the art to which it appertains to con

Success of Use.—The prior invention struct what it describes, it does not atneed not be worked with any greater tain the proportions or character of a skill and success than to demonstrate complete invention until it is embodiea its usefulness. Waterman v. Thomson, in a form capable of useful operation.

are beyond the stage of mere experiment, and are of such a character that the patented device can be constructed from them without the exercise of invention.2

(6) EXPERIMENT.Where the inventor has never attained a knowledge such as will enable him to put his idea into successful practice, although he has made trials and experiments to accomplish it, 3 or has not reduced his idea to practice and embodied it

Northwestern Fire Fxtinguisher Co. v. 3. United Nickel Co. v. Anthes, i Philadelphia Fire Extinguisher Co., 6 Holmes (U. S.) 155; s. C., 5 Fish. Pat. Pat. Off. Gaz. 34; Lyman Ventilating Cas. 517; s. C., i Pat. Off. Gaz. 578; New etc. Co. v. Lalor, 12 Blatchf. (U. S.) York v. Ransom, 23 How. (U. S.) 487; 303; . c., 1 Bann. & Ard. Pat. Cas. 403. Wayne v. Holmes, i Bond (U. S.) 27;

1. Where an inventor has perfected Hubbell's Case, 5 Ct. of Cl. 1; Stickhis invention and obtained patent els v. Borden, 3 Blatchf. (U. S.) 535; therefor the patent cannot be invali- Smith v. Allen, 2 Fish. Pat. Cas. 572; dated by showing that crude and un- Many v. Jagger, 1 Blatchf. (U. S.) 372; successful experiments were made by Seymour v. McCormick, 19 How. (U. others previous to his invention. La S.) 96; Smith v. Fay, 6 Fish. Pat. Cas. Baw v. Hawkins, 1 Bann. & Ard. Pat. 446; Latta v. Shawk, i Fish. Pat. Cas. Cas. 428; Aultman v. Holley, 11 465; Doughty v. Day, 9 Blatchf. (U. S.) Blatchf. (U. S.) 317; s. c., 6 Fish. Pat. 262; Ellithorp v. Robertson, 4 Blatchf. Cas. 534; s. c., 5 Pat. Off. Gaz. 3; (U. S.) 307; Śtainthorp v. Humiston, 4 Albright v. Celluloid etc. Harness Fish. Pat. Cas. 107; Ball v. Murry, 10 Trimming Co., 2 Bann. & Ard. Pat. Pa. St. 14; Wilcox v. Komp, 7 Blatchf. Cas. 629; s. C., 12 Pat. Off. Gaz. 227; (U. S.) 126. Uhlmann v. Bartholomae etc. Brewing Two Meanings of "Experiment."-An Co., 41 Fed. Rep. 132; Ansonia Brass experiment may be a trial either of an etc. Co. v. Electrical Supply Co., 32 incomplete mechanical structure to asFed. Rep. 81.

certain what changes or additions may An article which was made merely be necessary to make it accomplish the as a curiosity and not for the trade will design of its projector, or of a comnot defeat a subsequent invention. pleted machine to test its efficiency. Lamb v. Hamblen, 11 Fed. Rep. 722. In the first case, abandonment having

2. Crandal v. Watters, 20 Blatchf. taken place, no effect is caused on sub(U. S.) 97; Crandal v. Parker Carriage sequent invention; but if the experietc. Co., 28 Pat. Off. Gaz. 369.

ment, in second case, shows the capaProcess and Product.- Where an ar- city of machine to effect the inventor's ticle is patented, a prior publication re- object, he has the merit of producing lied upon to anticipate it, need not de- complete invention. Northwestern Fire scribe the process by which it is made, if Extinguisher Co. v. Philadelphia Fire it describes the article. Cohn v. United Extinguisher Co., I Bann. & Ard. Pat. States Corset Co., 93 U. S. 366.

Cas. 177. Where alleged prior invention was What Amounts to an Abandoned Exshown to be very near the realization of periment.- Where an inventor for some the invention, but could not, at a reason breaks up his invention, and period long subsequent make a machine while not wholly intending to abandon embodying the invention, held, that it it, yet uncertain whether he will resume was not sufficient to defeat a patent the subject, it shows not an unconeven though witnesses testified it was ditional abandoment but an entire unsuccessful. Dolbear v. American Bell certainty during the suspension, Telephone Co., 126 U. S. 1; Taylor v. whether or not the invention will be Wood, 1 Bann. & Ard. Pat. Cas. 270. given to the public, there being no ap

Where prior inventors approach plication for a patent; another, who invery near the discovery of patentee but vents the same thing, perfects it, redo not discover the principle feature of duces it to practice, patents and con

his invention, and are not able to give signs it to public use will be regarded . any directions by which same can be as the first inventor. White v. Allen,

successfully prepared and applied, the 2 Fish. Pat. Cas. 440; s. C., 2 Cliff. (U. patent is not anticipated. Cahill v. S.) 224; Gallahue v. Butterfield, 10 Brown, 3 Bann. & Ard, Pat. Cas. 580. Blatchf. (U. S.) 232; s. C., 6 Fish. Pat.

in some distinct form, he has not progressed beyond an experi. ment. The idea must be embodied.2

Cas. 203; s. C.,.2 Pat. Off. Gaz, 645; Although prior unsuccessful experi. Adams etc. Mfg. Co. v. Rathbone, 26 ments involved the same idea or prinFed. Rep. 262; Hutchinson v. Everett, ciple as subsequent patent, the latter 26 Fed. Rep. 531.

will not be invalidated. United Nickel A man made and tested several de Co. v. Authes, 5 Fish. Pat. Cas. 517; vices, but after testing them, took them S. c., i Holmes 135; Roberts v. Dickey, to pieces and laid them away. Held, 3 Brews. (Pa.) 260; American Bell an abandoned experiment.' Fayv. Teleph. Co. v. People's Teleph. Co., 25 Allen, 24 Fed. Rep. S04.

Fed. Rep. 725.

Fed. Ren Extreme Case.-Half a dozen articles Model Insufficient.--The mere makwere made and the manufacture was ing a model of an invention, held not to abandoned. Held, their manufacture constitute invention, as against a patent was an abandoned experiment. Hicks subsequently granted to another for the v. Otto, 29 Pat. Off. Gaz. 365; s. c., 19 same thing: Stillwell etc. Mfg. Co. Fed. Rep. 749.

v. Cincinnati Gas etc. Co., 1 Bann. & Abandoned Experiment. - If an al- Ard. Pat. Cas. 610. leged prior invention was only an aban- Same rule obtains, although the model doned experiment, never perfected, it was capable of operation for the purcannot affect a subsequent patent. pose of experiinents. Cahoon v. Ring, Corn Planter Patent, Brown v. Guild, i Cliff. (U. S.) 592. 23 Wall. (U. S.) 161; Adams v. Jones, Especially where the model was one i Fish. Pat. Cas. 527; Gottfried v. Phil. filed in the Patent Office and recalled lip Best Brewing Co., 5 Bann. & Ard. by the applicant because it did not rep. Pat. Cas. 4; Woodward v. Dinsmore, resent his invention “truly." Decker 4 Fish. Pat. Cas. 163; United Nickel v. Grote, 10 Blatchf. (U. S.) 331; s. C., Co. v. Authes, i Holmes (U. S.) 135; 6 Fish. Pat. Cas. 143; s. C., 3 Pat. Off. 8. C., Pat. Office Gaz. 578.

Gaz. 65. If alleged prior machine is abandoned Use of Knowledge Obtained from an as useless after experimental trials, pre- Abandoned Experiment—When It Makes sumption will be that it is not identical Subsequent Patent Void.-If the knowl. with subsequent invention of proved edge derived from a prior abandoned merit. Wayne v. Holmes, i Bond (U. experiment is sufficiently clear and defiS.) 27.

nite to enable an inventor to construct A single machine abandoned many the improvement which is the subject years before, will not invalidate a pat- of his invention, the patent is void; ent. Blake v. Rawson, i Holmes (U. otherwise, where an original inventor S.) 200; s. c., 3 Pat. Off. Gaz. 122; of an improveinent, though having Taylor v. Wood, 12 Blatchf. (U. S.) knowledge of such an experiment, who 110; s. c., 1 Bann. & Ard. Pat. Cas. is entitled to the benefit of all unsub270.

stantial changes and improvements, If suggestions came to the inventor notwithstanding such modifications from prior experiments, and he is the may run into and include forms of first who reduced these suggestions to mechanism shown in the abandoned practice, he is entitled to his invention experiment. Union Paper Bag etc. Co. Roberts v. Dickey, i Pat. Off. Gaz. 4. v. P. & W. Co., 15 Blatchf. (U. S.) 160;

1. Parkhurst v. Kinsman, 1 Blatchf. 8. C., 3 Bann. & Ard. Pat. Cas. 403; s. (U. S.) 488.

C., 15 Pat. Off, Gaz, 423. 2. Richardson v. Noys, 2 Bann. & The following have been held to be Ard. Pat. Cas. 398; s. c., 10 Pat. Off. experiments only: A single machine Gaz. 507

abandoned directly, and apparently imWhere a patent has been granted for practicable. Blake v. Rawson, 6 Fish. improvements which, after a full and Pat. Cas. 74; 8. C., 3 Pat. Off. Gaz. 122; fair trial, resulted in unsuccessfull ex. Taylor v. Wood, 12 Blatchf. (U.S.) 110; periments and have finally been aban- s. C., i Bann. & Ard. Pat. Cas. 270; S.C., doned, and another person takes up the 8 Pat. Off. Gaz. 90; Tatum v. Gregory, subject of the improvements and is suc- 41 Fed. Rep. 142. cessful, he is entitled to the merit of A device not showing an important them as an original inventor. Whitely element. Roberts v. Dicky, 4 Brews. v. Swayne, 7 Wall. (U. S.) 685.

(Pa.) 260; s. C., 20 Fish. Pat. Cas. 532; (c) CONCEALED INVENTION.-A patent is not invalidated by a concealed invention, or by one accidentally made and never communicated.2

(d) By PUBLICATION.-A patent is anticipated by a publication, 3

S. C., i Pat. Off, Gaz, 4; Hitchcock v. Status of Publication.-"Under the
Tremaine, 9 Blatchf. (U. S.) 550; s. c., provisions of law, if the publication in
5 Fish. Pat. Cas. 537; s. C., i Pat. Off. the English work preceded the discov.
Gaz. 633.

ery by Heaton, the defense was made A similar product made by a some out. Under the law the publication is what similar process, but apparently put upon the same footing with a patnot successful and not continued. Smith ent taken out at the time of the public v. Glendale etc. Fabric Co., i Holmes cation. The sole question is, therefore, (U. S.) 340; s. C., 5 Pat. Off. Gaz. 429. did Heaton make his invention before

Cases where alleged anticipating dé- the date of the English publication?" vice declared experiment through the Webb v. Quintard, 9 Blatchf. (U. S.) non-success of the result. Smith v. 352; s. C., 5 Fish. Pat. Cas. 276. Goodyear Dental etc. Co., 93 U.S. 487; When a Printed Description Becomes a s. c., 11 Pat. Off. Gaz. 246.

"Publication."-A printed description 1. Whitney v. Emmett, 1 Baldw. (U. of an invention is not deemed pubS.) 303; s. c., i Robb Pat. Cas. 567; lished until after it has been left some Rowley v. Mason, 2 A, L. T. 106; Jud. time in a place accessible to the public. son v. Bradford, 3 Bann. & Ard: Pat. Coburn v. Schroeder, 22 Pat. Off. Gaz, Cas. 539; s. c., 16 Pat. Off. Gaz, 171; 1538; s. C., II Fed. Rep. 425. Sayles v. Chicago etc. R. Co., 2 Fish. What Does Not Amount to a PublicaPat. Cas. 523; s. c., 1 Biss. (U. S.) 468; tion.-A description of an invention Stainthrop v. Humiston, 4 Fish. Pat. contained in an application for a patCas. 107; Piper v. Brown, 4 Fish. Pat. ent which was rejected because it Cas, 175; Zinsser v. Kremer, 39 Fed. lacks the essential quality of a publicaRep. III.

tion, in that it is not accessible to the Especially is this the case where an public generally or designed for general invention is afterward forgotten. Gay- circulation. Northwestern Fire Exler v. Wilder, 10 How. (U. S.) 477; tinguisher Co. v. Philadelphia Fire ExHall v. Bird, 3 Fish. Pat. Cas. 595; s.c., tinguisher Co., i Bann. & Ard. Pat. 6 Blatchf. (U.S.) 438; Bullock Printing Cas. 177; s. C., 6 Pat. Off. Gaz. 34. Press Co. v. Jones, 3 Bann. & Ard. Pat. Business circulars sent only to perCas. 195.

sons engaged or supposed to be enAnd where only a single specimen of gaged in the trade. New Process Ferthe invention was in existence. Ca- mentation Co. v. Koch, 21 Fed. Rep. hoon v. Ring, i Fish. Pat. Cas. 397. 580; Parsons v. Colgate, 15 Fed. Rep.

That a device had been kept se- 600. cret some time does not prevent it A book, of which there was no evifrom being afterwards patented. Ayl. dence other than that furnished by the ing v. Hall, 2 Cliff. (U. S.) 494.

copy, that the work was ever on sale or 2. New York v. Ransom, 23 How. 'circulation. Cottier v. Stimson, 20 (U. S.) 322.

Fed. Rep. 906. 3. Publication means put into gen A book offered as an anticipatory eral circulation. Cotter v. Stimson, 20 publication must be proved to be put Fed. Rep. 906.

in circulation or offered to the public If an invention has been described before the patentee's invention, by in a public work anterior to the sup- other evidence than the date on the posed discovery, the patent is void. title page. Reeves v. Keystone Bridge Evans v. Eaton, 3 Wheat. (U. S.) 454; Co., 5 Fish. Pat. Cas. 458; s. C., 9 Phila. 8. c., 1 Robb Pat. Cas. 68; Winans v. (Pa.) 368; s. c., i Pat. Off. Gaz. 466. Schenectady etc. R. Co., 2 Blatchf. (U. A written description of a machine, S.) 279; Evans v. Hettick, 3 Wash. (U. although illustrated by drawings, which S.) 40%.

has not been given to the public, does A specification of a prior foreign not constitute an invention within the patent is a prior publication. Sewall meaning of the Patent Laws, so as to v. Jones, 91 U. S. 171.

defeat a subsequent patent to an inde

which clearly sets forth the invention it is intended to describe. 1


pendent inventor, even though it be de- steps necessarily antecedent need not posited in the Patent Office as part of be. Cohn v. United States Corset Co., an application for a patent. Lyman 93 U. S. 366. Ventilating etc. Co. v. Lalor, 1 Bann. "Inventions patented here cannot be & Ard. Pat. Cas. 403.

superseded by the mere introduction of A mere rejected application showing a foreign patent or publication, although that the device described was ever prac. of prior date, unless the descriptions tically made and used, does not antici- and drawings contain and exhibit a subpate a patent. Barker v. Stowe, 3 Bann. stantial representation of the patented & Ard. Pat. Cas. 337.

improvement in such full, clear and exWhen the inventor's idea is perfected act terms as to enable anyone skilled in by a practical adaption of it in the form the art or science to which it appertains, of mechanism, a rejected specification without resorting to experiments, to with the drawings, must be considered make, construct and practice the invenin connection with it, in ascertaining tion as he would be enabled to do from the date of invention, design of inven- a prior patent for the same invention." tor, and the principle intended function Cahill v. Brown, 15 Pat. Off. Gaz. 697; and mode of operation of his mechan. 9. C., 3 Bann. & Ard. Pat. Cas. 580, ism. Northwestern Fire Extinguisher citing Betts v. Menzies, 7 L. T., N. S. Co. v. Philadelphia Fire Extinguisher 110. Co., 1 Bann. & Ard. Pat. Cas. 177. Where the alleged prior publication

A prior application for a patent with remotely suggested the device, but did out evidence to show that the described not construct it so that the public could device was ever constructed, is not suf- manufacture and put it to the use deficient to defeat subsequent patent. signed without further invention. McAdams v. Howard, 26 Pat. Off. Gaz. Comb v. Ernest, i Woods (U. S.) 195;

Howe v. Williams, 2 Cliff. (U. S.) 245; An English provisional specification Carr v. Rice, i Fish. Pat. Cas. 196. is not a bar to a patent, only as a printed Scientific Speculation Insufficient.specification describing the invention. A publication showing only suggestions The patent constitutes no objection. and speculations of scientific men who Cohn v. United States Corset Co., 12 had never tested the practicability of Blatchf. (U. S.) 225.

the device. Jensen v. Keasbey, 24 Fed. A provisional specification which is Rep. 144; Hays v. Sulsor, i Bond (U. not shown to take effect as a publication S.) 279; s. c., i Fish. Pat. Cas. 532. prior to the date showing the invention, Incompleteness and Indefiniteness Fadoes not anticipate a patent. Ireson v. tal.-Statements in a prior publication Pierce, 39 Fed. Rep. 795; Smith v. not full and definite enough to enable Goodyear Dental etc. Co., 93 U. S. 486; those skilled in the art to put the invens. c., 11 Pat. Off. Gaz. 246.

tion into practice. Hord v. Boston Car 1. A description in a prior publi- Spring Co., 21 Fed. Rep. 67; Cohn v, cation, in order to defeat a patent, must United States Corset Co., 93 U, S. 366; contain and exhibit a substantial repre- Downton v. Yaeger Milling Co., 108 sentation of the patented improvement U. S. 466. in such full, clear and exact terms as to When the published description does enable any person skilled in the art or not give the public a practical knowlscience to which it appertains to make, edge of the invention. Roberts v. construct and practice the invention Dickey, 4 Brew. (Pa.) 260. patented. It must be an account of a Where the invention cannot be made complete and operative invention, and used merely by use of the publicapable of being put into practical cation without the aid of anything not operation. Seymour v. Osborne, i known. Begnall v. Harvey, 18 Blatchf. Wall. (U. S.) 516; Cohn v. United (U. S.) 353; Carr v. Rice, i Fish. Pat. States Corset Co., 93 U. S. 366; Elec- Cas. 198; Goff v. Stafford, 14 Pat. Off. trical Accumulation Co. v. Julien Elec- Gaz. 748. tric Co., 38 Fed. Rep. 117; Adams v. Burden to Show Sufficiency on DefendBellaire Stamping Co., 28 Fed. Rep. ant.—The defendant has to make out 360; Downton v. Yaeger Milling Co., the sufficiency of the description. Cohn 108'U. S. 466.

v. United States Corset Co., 12 Blatchf. If the thing patented is described, the (U. S.) 225.

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