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(6) KNOWLEDGE OF PRIOR DEVICE OR DESCRIPTION.—A patent is void, even though the inventor had no knowledge of the prior device or description anticipating it;7 even when an invention is abandoned it becomes public property and cannot be resumed by an inventor.2
(f) MyST BE PRIOR TO DATE OF INVENTION.—To invalidate a patent the anticipating device or description must be prior to the patentee's invention, not merely prior to his application for a patent.3
7. Novelty with Reference to Foreign Inventions.-A patentee must be the inventor with reference to foreign countries, as well as to this ;4 that is, he must be an original inventor, and not an
Completeness of Publication Question Bridge Co., 5 Fish. Pat. Cas. 462; s. C., of Fact. Whether a publication offered i Pat. Off. Gaz. 466; Byerly . Clevein evidence describes the invention land Linseed Oil Works, 31 Fed. Rep. claimed in the patent, is a question of 73; Draper v. Potomska Mills, 3 Bann. fact. Adams v. Bellaire Stamping Co., & Ard. Pat. Cas. 215; Bates v. Coe, 98 28 Fed. Rep. 360.
U. S. 34; Consolidated Bunging Appa. 1. Evans v. Eaton, 3 Wheat. (U. S.) ratus v. Woerle, 29 Fed. Rep. 449. 454; s. C., 1 Robb Pat. Cas. 68; Win- And, consequently, where an invenans v. Schenectady R. Co., 2 Blatchf. tion is shown to be made before the (U. S.) 279; Evans v. Hettick, 3 Wash. sealing of an English patent, the inven(U. S.) 408, S. C., i Robb Pat. Cas. tion is not anticipated by it. Railway 166; Sewall v. Jones, 91 U. S. 171; S.C., Registering Mfg. Co. v. Broadway etc. 9 Pat. Off. Gaz. 47.
R. Co., 26 Fed. Rep. 522. See Reed v. Cutter, i Story (U. S.) He can show the date of his invention, 590; s. C., 2 Robb Pat. Cas. 81.
Parker v. Hulme, i Fish. Pat. Cas. 44; Presumed to Know Prior Inventions or Judson v. Cope, i Bond (U. S.) 327; s. Patents.-A patentee is presumed to c., i Fish. Pat. Cas. 615. have knowledge of previous inventions. A description in a printed publicaFoote v. Silsby, 2 Blatchf. (U. S.) 260; tion cannot invalidate a patent unless Woodcock v. Parker, 1 Gall. (U. S.) 438. prior to the invention. It is not
Also presumed to know of a preced- enough that it was prior to the ing patent. Odiorne v. Winkley, 2 Gall. application for letters patent. Bar(U. S.) 51.
tholomew v, Sawyer, i Fish. Pat. Cas. Foreign Patent.-When an invention 516; s. C., 4 Blatchf. (U. S.) 347; Howe has been patented in a foreign country, v. Morton, i Fish Pat. Cas. 586; Cochor described in a public work the alleged rane v. Deener, 94 U. S. 780; Reeves inventor here is presumed to have been v. Keystone Bridge Co., 5 Fish. Pat. acquainted with that invention as it was Cas. 458; s. c., 9 Phila. (Pa.) 368; s. C., known in the foreign country. Swift i Pat. Off. Gaz. 466. v. Whisen, 2 Bond (U.S.) 115
English Specifications.-American 2. Colt v. Massachusetts Arms Co., patentee made his invention before the i Fish. Pat. Cas. 108; Whipple v. Bald- filing of English specification. Held, win Mfg. Co., 4 Fish. Pat. Cas. 29; that his patent was not invalidated. White v. Allen, 2 Cliff. (U. S.) 224; S. Lorrilard v. Dohan, 9 Fed. Rep. 509; s. C., 2 Fish. Pat. Cas. 440; Northwes- C., 20 Pat. Off, Gaz, 1587; De Florez v. tern Fire Extinguisher Co. v. Philadel. Raynolds, 17 Blatchf. (U. S.) 436; s. c., phia Fire Extinguisher Co., i Bann. & 17 Pat. Off. Gaz. 503. Ard. Pat. Cas. 177; Shoup v. Henrici, 2 The specification or other description Bann. & Ard. Pat. Cas. 249; s. C., 4 must be published before the date of Pat. Off. Gaz. 1162.
invention of American patentee, proLost Art.-A rediscovered "lost art" vided the latter believed himself, at the has been placed on a different footing. time of his application for letters Gayler v. Wilder, 10 How. (U. S.) 477. patent, to be the first inventor. Eliza
3. Dixon v. Moyer, 4 Wash. (U. S.) beth v. American Pavement Co., 97 68; Smith v. Goodyear Dental etc. Co., U. S. 126. 93 U. S. 486; Reeves v. Keystone 4. Sewall v. Jones, 91. U. S. 171.
importer of the invention.
8. Novelty with Reference to Combinations.—The novelty in combinations consists in the embodiment and adaptation of mechanical appliances which are old.2
VI. PUBLIC USE.—Where an invention has been in public use or on sale in the United States for more than two years prior to the application for a patent, the patent granted is void.3 It is immaterial whether the use or sale has or has not been with the consent of the inventor.4 The test whether a transaction is or is not a public sale or use, is whether the use or sale has been in
1. Thompson v. Haight, 1 U. S.L. J. by such means and appliances as the 582.
patentee claims to have invented, is Proof of prior use in a foreign new. Bell v. Daniels, i Fish. Pat. Cas. country will not supersede a patent 372; s. c., 1 Bond (U. S.) 212. granted here unless the alleged inven- Therefore, where the combination is tion was patented in some foreign new, the elements may have been in country. Proof of such foreign manu- the most common and extensive use. facture and use, if known to the appli- Ryan v. Goodwin, 3 Sumn. (U. S.) 514; cant for the patent, may be evidence to S. c., 1 Robb Pat. Cas. 725. show he was not the inventor of A Substitute or an improvement.-If the alleged new improvement; but it is a device is a substitute for one element not sufficient to supersede the patent if of a combination, and not merely an he did not borrow his supposed inven- improvement on it, then a machine tion from that source, unless the foreign containing this substitute and the other inventor obtained a patent for his im- old elements is a new and different maprovement or the same was described chine from a machine containing the in some printed publication. Roemer v. combination of old elements known beSimon, 95 U. S. 214; Doyle v, Spauld- fore the invention, and not merely an ing, 19 Fed. Rep. 744; Illingworth v. improvement upon such machine conSpaulding, 9 Fed. Rep. 611.
taining such combination of old ele2. Crandal v. Walters, 9 Fed. Rep. ments. Potter v. Holland, ı Fish. Pat. 659; Aron v. Manhattan R. Co., 132 U. Cas. 382; s, C., 4 Blatchf. (U. S.) s. 84; Proctor v. Bennis, 36 C. D. 238. 740; May v. Fond du Lac Co., 27 Fed. Although Part of the Apparatus Might Rep. 691.
Have Been Applied to a similar Purpose. Novelty in combinations. When a A combination is new although part of patent is for a combination, it is imma- the apparatus might have been applied terial whether the patentee is the in- to similar purposes in other and differventor of any of the elements of ingre ent machines. Pitts v. Whitman, 2 dients. They may all be old, and yet Story (U. S.) 609; s. C., 2 Robb Pat. if the patentee was the first to combine Cas. 189. them for the particular purpose, he is But the novelty of a combination canentitled to be protected in that im- not be supported by the evidence of the provement. Silsby v. Foote, 20 How. novelty of a part. Batten v. Clayton, (U. S.) 378; O'Reilly v. Morse, 15 2 Whart. Dig. 363. How. (U. S.) 62; Pennock v. Dia 3. U. S. Rev. Stats., $_4886. Locklogue, 4 Wash. (U. S.) 538; s. C., 2 Pet. wood v. Cleveland, 18 Fed. Rep. 37; (Ų. S.) 1; s. C., i Robb Pat. Cas. 466; Hutchinson v. Everett, 26 Fed. Rep. Ryan v. Goodwin, 3 Sumn. (U.S.) 514; 531; Cross v. Union etc. Fastening s. c., i Robb Pat. Cas. 725; Sessions v. Co., 29 Fed. Rep. 293. Romadka, 28 Pat. Off. Gaz. 721.
A foreign use is not contemplated by The theory of a combination is that the statute. Worswick Mfg. Co. v. all the parts are old and the invention Steiger, 17 Fed. Rep. 250. consists in the new combination. Union 4. Andrews v. Hovey, 123 U. S. Sugar Refinery Co. v. Mathiesen, 2 267. Fish. Pat. Cas. 600; s. C., 3 Cliff. (U. The circuit court decisions on this S.) 639. The test of novelty as applied question are collected and analyzed in to a combination seems to be, whether the motion for rehearing. Andrews the application of the powers of nature v. Hovey, 123 U. S. 267.
the ordinary transactions of life in the ordinary course of business, 1
1. A machine which, whether entirely ence of employees of a factory, and satisfactory or not, has been used in the though but one device was made and ordinary course of business for twenty or was soon laid aside, it was held a perthirty years, and is patented precisely fected invention, and not an abandoned as it is used, cannot properly be called experiment, and the use was held to be an experimental machine. Perkins v. public. Brush v. Condit, 20 Fed. Rep. Nashua Card etc. Co., 5 Bann. & Ard. 826; 28 Pat. Off. Gaz. 451. Pat. Cas. 395; Campbell v. Mayor, 44 Use of Machine in Factory; Workmen Pat. Off. Gaz. 1085.
Not Pledged to Secrecy.—Use of maEven when the patentee expresses chine in a factory where the workmen himself doubtful of the durability of the are not pledged to secrecy, is a public device, and claims a desire to test it, a use, even though chance visitors are exuse of a permanent nature in the ordi- cluded. Perkins v. Nashua Card etc. nary course of business for over two Co., 5 Bann. & Ard. Pat. Cas. 395. years will invalidate the patent. Root W hen an inventor puts his incom0. Third Ave. R. Co., 37 Fed. Rep. 673. plete or experimental device upon the
What Is Public Use - Public use is: market and sells it as a manufacture (1) where an inventor allows his in more than two years before he applies vention to be used by other persons, for his patent, he gives the device to the either with or without compensation, public in the condition or stage of deor where it is put on sale without his velopment in which he sells it; and consent for such use. Elizabeth v. his patent cannot cover what he has American etc. Pavement Co., 97 U. S. thus given away. Lyman v. May pole, 126.
28 Pat. Off. Gaz. 810; s. C., 19 Fed. Rep. (2) Where an inventor in the general 735. course of business sells his invention A machine and a process were used even by a conditional sale. Henry v. for a series of years without a change in Francestown Soapstone Co., 5 Bann. & either. Held, not an experimental use. Ard. Pat. Cas. 108; Plimpton v. Wins- Manning v. Cape Ann etc. Glue Co., low, 23 Pat. Off. Gaz, 1731.
108 U. S. 462. Number of Persons Using, Unimpor. An inventor allowed two persons the tant.-Whether use is public or not, use of his invention without any indoes not depend upon the number of junction of secrecy or other condition. persons to whom the use is known. Held, a public use. Manning v. Cape Egbert v. Lippmann, 104 U. S. 333. • Ann etc. Glue Co., 108 U. S. 462.
Also Number of Articles Made.-Nor A use of an invention where it cannot upon the number of articles made; one be seen by the public eye, if allowed by is sufficient, though a greater number the inventor to be used in a complete may tend to strengthen the proof. Eg condition, not as a test, and without bert v. Lippmann, 104 U. S. 333; Con- any obligation of secrecy is a public solidated Fruit Jar Co. v. Wright, 12 use. This is an extreme case. A man Blatchf. (U. S.) 149; 8. C., 6 Pat. Off. made a pair of corset steels; they were Gaz. 327; s. C., i Bann. & Ard. Pat. given to a female friend, and in their Cas. 320; Henry v. Francestown Soap- use were hidden in the corset. Egbert stone Co., 5 Bann. & Ard. Pat. Cas. 108. v. Lippman, 104 U. S. 333; s. C., 21 Pat.
And Time.- A device was used two Off. Gaz. 75. and one-half months only, then laid Double Purpose of Profit and Experiaside. Held, an anticipation of the ment.-A patent is void if, more than patent when the use was not for the two years before the application for it purpose of testing the device, but was a was filed, the patentee sold the patented public and practical one with as much article for the double purpose of seeing success as was reasonable to expect at whether they would sell and of realizthat early stage of a particular art. ing from the proceeds. Consolidated Brush v. Condit, 28 Pat. Off. Gaz. 451; Fruit Jar Co. v. Wright, 12 Blatchf. 20 Fed. Rep. 824.
(U. S.) 149. Where a device did such practical Offering a device for sale whether work as might reasonably be expected any sales were made or not, two years in the state of the art at that time, and prior to the application, invalidates the was put in ordinary, though not con. patent. Plimpton v. Winslow, 23 Pat. stant use, for a short time, in the pres. Off. Gaz. 1731.
or to test the invention.
VII. UTILITY-1. General Principles.—That the invention be useful is essential to the validity of a patent. The term "useful" is employed in contradistinction to what is injurious to the moral health or good order of society, 3 or what is merely
Partial Success of Machine.-Though S.) 503; Henry v. Francestown Soapthe machine embodying an invention stone Co., 5 Bann. & Ard. Pat.Cas. 108 was not a success as a whole, if used or The test, whether an article is perfect especially if sold over two years prior or imperfect, is whether it is or is not to the application, the patent is void. the invention—that is, “whether it Newark Machine Co. v. Hargett, 28 embodies the whole of it.” Draper v. Fed. Rep. 567.
Wattles, 3 Bann. & Ard. Pat. Cas. 619. 1. Where the inventor uses his ma- When Machine Is Altered. If a machine for the bona fide intent of testing chine as originally constructed is subseits qualities, although he makes no al- quently altered so as to make a machine terations. Elizabeth v. American etc. substantially different in its construction Pavement Co., 97 U. S. 126.
and mode of operation, the time begins Where a use for profit was incidental to run from the completion of the last and subordinate to the experimental machine. Haskell v. Shoe Mach. Co., use. Jennings v. Pierce, 15 Blatchf. (U. 3 Bann. & Ard. Pat. Cas. 553. S.) 42; S.C., 3 Bann.& Ard. Pat. Cas. 361. Distinction Between Completed Inven.
Where the use is an experiment, tion and Completed Machine.—The dis. although the public derived an inci- tinction between the invention and the dental advantage. Elizabeth v. Ameri- machine which embodies it must be can etc. Pavement Co., 97 U. S. 126. preserved. The invention may be per.
Where the use prior to the period of fect, and the machine which embodies two years was by way of trial and re- the invention may be an imperfect masulted in a change of the machine. chine. American Hide etc. Co. v. Pitts v. Hall, 2 Blatchf. (U. S.) 229. American Tool etc. Co., I Holmes (U.
Where a machine is imperfect and S.) 503; s. c. 4 Fish. Pat. Cas. 284. requires continuous experiments to 2. U. S. Rev. Stats., § 4886; Page v. remedy the defects of its organization. Ferry, i Fish. Pat. Cas. 299; Lowell o. Sprague v. Smith etc. Mfg.Co., 12 Fed. Lewis, i Robb Pat. Cas. 131; WinterRep. 721; Eastern Paper Bag Co. v. mute v. Redington, 1 Fish. Pat. Cas. 239; Standard Paper Bag Co., 30 Fed. Rep. Winans v. Schenectady etc. R. Co., 2 63
Blatchf. (U. S.) 279; Vance v. CampWhere a machine is put up and used bell, i Fish. Pat. Cas. 483; Shannon v. on the premises of another, and the Bruner, 33 Fed, Rep. 289. . use enures to the benefit of the owner An invention which exposes the of the establishment, but is used under operator to great bodily harm cannot surveillance of inventor for the purpose be regarded as useful. Mitchell v. of enabling him to test the machine. Tilghman, 19 Wall. (U. S.) 287. Or is Elizabeth v. American etc. Pavement simply dangerous. Converse v. CanCo. 97 U. S. 126.
non, 2 Woods (U. S.) 7; s. c., 9 Pat. Distinction Between Public Use and Off. Gaz. 105; Hoffheins v. Brandt, 3 Use in Public.—There is an obvious dis- Fish. Pat. Cas. 218. . tinction between a public use or a use An improvement, which, in effecting by the public, and an experimental use a subsidiary end (as arresting the sparks in public. Locomotive Truck Co. v. of a locomotive), is destructive of the R. Co., 1 Bann. & Ard. Pat. Cas. 470. ends of the principal machine, is not
A Use In Public of a Device which can useful. Wilton v. R. Co., 2 Whart. not be Tested Privately.-If a thing Dig. 360. cannot be tested in private, a public But it must be of some use or beneuse may be deemed experimental. fit. Cox v. Griggs, 2 Fish. Pat. Cas. Campbell v. New York, 20 Pat. Off. 174; Wintermute v. Redington, i Fish. Gaz. 1817; s. C., 9 Fed. Rep. 500. Pat. Cas. 239. It must not be "utterly
Sale of Imperfect Invention.-Sale of worthless." Vance v. Campbell, I imperfect invention does not invalidate Fish. Pat. Cas. 483; s. C., 1 Black (U. the patent, American Hide etc. Co. v. S.) 427. American Tool etc. Co., i Holmes (U. 3. Bedford v. Hunt, 1 Mason (U. S.)
2. Degree of Utility Requisite.—The amount of utility in an invention is unimportant, provided it is useful to some degree ;2 consequently, the fact that a device is not superior to other devices,3 or is capable of improvement, or has even been driven out of the market by later inventions,5 is unimportant.
302; s. C., 1 Robb Pat. Cas. 148; Westgeneral; it may be limited to a few cases. lake v. Cartter, 6 Fish. Pat. Cas. 519; Bedford v. Hunt, i Mason (U. S.) 304; S.C., 4 Pat. Off. Gaz. 636.
S. C., 1 Robb Pat. Cas. 148. 1. Lowell v. Lewis, i Robb Pat. 3. An invention, to be useful, need Cas. 131; Winans v. Schenectady etc. not supersede by general utility all R. Co., 2 Blatchf. (U. S.) 279.
other inventions now in practice to acAn invention must not be for a frivo- complish the same purpose. Bedford lous object, "like the invention of an v. Hunt, i Mason (U. S.) 302; s. c., I improvement in playing cards.” Ad- Robb Pat. Cas. 148; Shaw v. Colwell ams v. Edwards, í Fish. Pat. Cas. 1; Lead Co., 20 Blatchf. (U. S.) 417. Nor Wintermute v. Redington, i Fish. Pat. be better than anything invented before, Cas. 239. Or only applicable to gam- or that shall come after. Hoffheins v. bling purposes. Nat. Automatic De Brandt, 3 Fish. Pat. Cas. 218. Even if it vice Co. v. Lloyd, 40 Fed. Rep. 89. does not accomplish its object as well
Utility a Question of Fact.-Utility of as other articles intended for the same an invention is a question of fact usually purpose, the patent is not void. Wildepending upon the actual experiment. son v. Hentges, 26 Minn, 288; Bell v. Tilghman v. Mitchell, 4 Fish. Pat. Cas. Daniels, i Fish. Pat. Cas. 372; s. C., I 599. And the court will not declare a Bond (U. S.) 212. That it does not acpatent invalid for want of utility, except complish its object as well as another on the strongest proof. Kearney v. affects the value of the patent and not Lehigh Valley R. Co., 32 Fed. Rep. its validity. Bell v. Daniels, i Fish. 320.
Pat. Cas. 372; S. c., 1 Bond (U. S.) 212. Evidence of Utility.—Where an inven. In ascertaining usefulness, it is not tion supersedes all others, it is very important that it should be more valuastrong evidence that some useful result ble than other modes of accomplishing was obtained. Smith v. O'Connor, 6 the same results; but it must be a pracFish. Pat. Cas. 469.
tical method of doing the thing desig\"In face of the proofs, the denial of nated, in which its utility may more or the utility of the invented process is re- less consist. Roberts v. Ward, 4 Mcmarkable. The evidence shows the in- Lean (U. S.) 565. It is not necessary vention or process to have been pre-em- that it should be the best thing of its inently useful. It has gone into very kind. Winans v. Schenectady etc. R. extended use throughout the entire oil Co., 2 Blatchf. (U. S.) 279. regions and its use has immensely in 4. Wheeler v. Clipper Mower etc. creased the production of oil." Roberts Co., 10 Blatchf. (U. S.) 181; s. c., 6 v. Schreiber, 5 Bann. & Ard. Pat. Cas. Fish. Pat. Cas. 1; S. C., 2 Pat. Off. Gaz. 491.
443; National Hat Pouncing Mach. Co. The remarkable increase of demand v. Thom, 25 Fed. Rep. 497 for brushes of that class, together with 8. Cook v. Earnest, 2 Pat. Off. Gaz. substantial imitation of it by the in- 89; s. C., 5 Fish. Pat. Cas. 396; National fringer, are conclusive evidence of the Hat Pouncing Mach. Co. v. Thom, 25 utility of the invention. Megrave v. Fed. Rep. 497. Carroll, 5 Bann. & Ard. Pat. Cas. 325. Simplicity of Invention Not a Bar.
Any invention which increases the An invention may be simple and not salability of an article may be said to import the exercise of very high mecontain the elements of utility. News chanical or scientific talent. Wayne bury v. Fowler, 28 Fed. Rep. 454. v. Holmes, 2 Fish. Pat. Cas. 20; s. C., I
2. Doherty v. Haines, 1 Bann. & Ard. Bond (U. S.) 27. Lack of utility is Pat. Cas. 289; Gibbs v. Hoefner, 19 not to be inferred from simplicity. Fed. Rep. 323; Curtis on Patents, $ 106; Bell v. Daniels, i Fish. Pat. Cas. 372; Adams v. Loft, 4 Bann. & Ard. Pat. S. C., 1 Bond (U. S.) 212. Cas. 494; Fryer v. Mutual L. Ins. Co., 30 A billiard table having the broad Fed. Rep. 787. The utility need not be side rails beveled or inclined inwards