(e) 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;11 even when an invention is abandoned it becomes public property and cannot be resumed by an inventor.2 (f) MUST 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; that is, he must be an original inventor, and not an Completeness of Publication Question of Fact. Whether a publication offered in evidence describes the invention claimed in the patent, is a question of fact. Adams v. Bellaire Stamping Co., 28 Fed. Rep. 360. 1. Evans v. Eaton, 3 Wheat. (U. S.) 454; s. c., I Robb Pat. Cas. 68; Winans v. Schenectady R. Co., 2 Blatchf. (U. S.) 279; Evans v. Hettick, 3 Wash. (U. S.) 408, s. c., 1 Robb Pat. Cas. 166; Sewall v. Jones, 91 U. S. 171; s. c., 9 Pat. Off. Gaz. 47. See Reed v. Cutter, 1 Story (U. S.) 590; s. c., 2 Robb Pat. Cas. 81. Presumed to Know Prior Inventions or Patents. A patentee is presumed to have knowledge of previous inventions. Foote v. Silsby, 2 Blatchf. (U. S.) 260; Woodcock v. Parker, 1 Gall. (U. S.) 438. Also presumed to know of a preceding patent. Odiorne v. Winkley, 2 Gall. (U. S.) 51. Foreign Patent.-When an invention has been patented in a foreign country, or described in a public work the alleged inventor here is presumed to have been acquainted with that invention as it was known in the foreign country. Swift v. Whisen, 2 Bond (U. S.) 115. 2. Colt v. Massachusetts Arms Co., 1 Fish. Pat. Cas. 108; Whipple v. Baldwin Mfg. Co., 4 Fish. Pat. Cas. 29; White . Allen, 2 Cliff. (U. S.) 224; s. c., 2 Fish. Pat. Cas. 440; Northwestern Fire Extinguisher Co. v. Philadelphia Fire Extinguisher Co., 1 Bann. & Ard. Pat. Cas. 177; Shoup v. Henrici, 2 Bann. & Ard. Pat. Cas. 249; s. c., 4 Pat. Off. Gaz. 1162. Lost Art.-A rediscovered "lost art" has been placed on a different footing. Gayler v. Wilder, 10 How. (U. S.) 477. 3. Dixon v. Moyer, 4 Wash. (U. S.) 68; Smith v. Goodyear Dental etc. Co., 93 U. S. 486; Reeves v. Keystone Bridge Co., 5 Fish. Pat. Cas. 462; s. c., 1 Pat. Off. Gaz. 466; Byerly. Cleveland Linseed Oil Works, 31 Fed. Rep. 73; Draper v. Potomska Mills, 3 Bann. & Ard. Pat. Cas. 215; Bates v. Coe, 98 U. S. 34; Consolidated Bunging Apparatus v. Woerle, 29 Fed. Rep. 449. And, consequently, where an invention is shown to be made before the sealing of an English patent, the invention is not anticipated by it. Railway Registering Mfg. Co. v. Broadway etc. R. Co., 26 Fed. Rep. 522. He can show the date of his invention. Parker v. Hulme, 1 Fish. Pat. Cas. 44; Judson v. Cope, 1 Bond (U. S.) 327; s. c., I Fish. Pat. Cas. 615. A description in a printed publication cannot invalidate a patent unless prior to the invention. It is not enough that it was prior to the application for letters patent. Bartholomew v. Sawyer, 1 Fish. Pat. Cas. 516; s. c., 4 Blatchf. (U. S.) 347; Howe v. Morton, 1 Fish Pat. Cas. 586; Cochrane v. Deener, 94 U. S. 780; Reeves v. Keystone Bridge Co., Fish. Pat. Cas. 458; s. c., 9 Phila. (Pa.) 368; s. c., 1 Pat. Off. Gaz. 466. English Specifications.-American patentee made his invention before the filing of English specification. Held, that his patent was not invalidated. Lorrilard v. Dohan, 9 Fed. Rep. 509; s. c., 20 Pat. Off. Gaz. 1587; De Florez v. Raynolds, 17 Blatchf. (U. S.) 436; s. c., 17 Pat. Off. Gaz. 503. The specification or other description must be published before the date of invention of American patentee, provided the latter believed himself, at the time of his application for letters patent, to be the first inventor. Elizabeth v. American Pavement Co., 97 U. S. 126. 4. Sewall v. Jones, 91. U. S. 171. importer of the invention.1 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. 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. 582. Proof of prior use in a foreign country will not supersede a patent granted here unless the alleged invention was patented in some foreign country. Proof of such foreign manufacture and use, if known to the applicant for the patent, may be evidence to show he was not the inventor of the alleged new improvement; but it is not sufficient to supersede the patent if he did not borrow his supposed invention from that source, unless the foreign inventor obtained a patent for his improvement or the same was described in some printed publication. Roemer v. Simon, 95 U. S. 214; Doyle v. Spaulding, 19 Fed. Rep. 744; Illingworth v. Spaulding, 9 Fed. Rep. 611. 2. Crandal v. Walters, 9 Fed. Rep. 659; Aron v. Manhattan R. Co., 132 U. S. 84; Proctor v. Bennis, 36 C. D. 740; May v. Fond du Lac Co., 27 Fed. Rep. 691. Novelty in Combinations. When a patent is for a combination, it is immaterial whether the patentee is the inventor of any of the elements of ingredients. They may all be old, and yet if the patentee was the first to combine them for the particular purpose, he is entitled to be protected in that improvement. Silsby v. Foote, 20 How. (U. S.) 378; O'Reilly v. Morse, 15 How. (U. S.) 62; Pennock v. Dialogue, 4 Wash. (U. S.) 538; s. c., 2 Pet. (U. S.) 1; s. c., 1 Robb Pat. Cas. 466; Ryan v. Goodwin, 3 Sumn. (U. S.) 514; s. c., I Robb Pat. Cas. 725; Sessions v. Romadka, 28 Pat. Off. Gaz. 721. The theory of a combination is that all the parts are old and the invention consists in the new combination. Union Sugar Refinery Co. v. Mathiesen, 2 Fish. Pat. Cas. 600; s. c., 3 Cliff. (U. S.) 639. The test of novelty as applied to a combination seems to be, whether the application of the powers of nature by such means and appliances as the patentee claims to have invented, is new. Bell v. Daniels, 1 Fish. Pat. Cas. 372; s. c., I Bond (U. S.) 212. Therefore, where the combination is new, the elements may have been in the most common and extensive use. Ryan v. Goodwin, 3 Sumn. (U. S.) 514; s. c., I Robb Pat. Cas. 725. A Substitute or an Improvement.-If a device is a substitute for one element of a combination, and not merely an improvement on it, then a machine containing this substitute and the other old elements is a new and different machine from a machine containing the combination of old elements known before the invention, and not merely an improvement upon such machine containing such combination of old elements. Potter v. Holland, I Fish. Pat. Cas. 382; s. c., 4 Blatchf. (U. S.) 238. Although Part of the Apparatus Might Have Been Applied to a Similar Purpose.A combination is new although part of the apparatus might have been applied to similar purposes in other and different machines. Pitts v. Whitman, 2 Story (U. S.) 609; s. c., 2 Robb Pat. Cas. 189. But the novelty of a combination cannot be supported by the evidence of the novelty of a part. Batten v. Clayton, 2 Whart. Dig. 363. 3. U. S. Rev. Stats., § 4886. Lockwood v. Cleveland, 18 Fed. Rep._37; Hutchinson v. Everett, 26 Fed. Rep. 531; Cross v. Union etc. Fastening Co., 29 Fed. Rep. 293. A foreign use is not contemplated by the statute. Worswick Mfg. Co. v. Steiger, 17 Fed. Rep. 250. 4. Andrews v. Hovey, 123 U. S. 267. The circuit court decisions on this question are collected and analyzed in the motion for rehearing. Andrews v. Hovey, 123 U. S. 267. the ordinary transactions of life in the ordinary course of business,1 1. A machine which, whether entirely satisfactory or not, has been used in the ordinary course of business for twenty or thirty years, and is patented precisely as it is used, cannot properly be called an experimental machine. Perkins v. Nashua Card etc. Co., 5 Bann. & Ard. Pat. Cas. 395; Campbell v. Mayor, 44 Pat. Off. Gaz. 1085. Even when the patentee expresses himself doubtful of the durability of the device, and claims a desire to test it, a use of a permanent nature in the ordinary course of business for over two years will invalidate the patent. Root v. Third Ave. R. Co., 37 Fed. Rep. 673. What Is Public Use.-Public use is: (1) where an inventor allows his invention to be used by other persons, either with or without compensation, or where it is put on sale without his consent for such use. Elizabeth v. American etc. Pavement Co., 97 U. S. 126. (2) Where an inventor in the general course of business sells his invention even by a conditional sale. Henry v. Francestown Soapstone Co., 5 Bann. & Ard. Pat. Cas. 108; Plimpton v. Winslow, 23 Pat. Off. Gaz. 1731. Number of Persons Using, Unimportant. Whether use is public or not, does not depend upon the number of persons to whom the use is known. Egbert v. Lippmann, 104 U. S. 333. Also Number of Articles Made.-Nor upon the number of articles made; one is sufficient, though a greater number may tend to strengthen the proof. Egbert v. Lippmann, 104 U. S. 333; Consolidated Fruit Jar Co. v. Wright, 12 Blatchf. (U. S.) 149; s. c., 6 Pat. Off. Gaz. 327; s. c., I Bann. & Ard. Pat. Cas. 320; Henry v. Francestown Soapstone Co., 5 Bann. & Ard. Pat. Cas. 108. And Time.-A device was used two and one-half months only, then laid aside. Held, an anticipation of the patent when the use was not for the purpose of testing the device, but was a public and practical one with as much success as was reasonable to expect at that early stage of a particular art. Brush v. Condit, 28 Pat. Off. Gaz. 451; 20 Fed. Rep. 824. Where a device did such practical work as might reasonably be expected in the state of the art at that time, and was put in ordinary, though not constant use, for a short time, in the pres ence of employees of a factory, and though but one device was made and was soon laid aside, it was held a perfected invention, and not an abandoned experiment, and the use was held to be public. Brush v. Condit, 20 Fed. Rep. 826; 28 Pat. Off. Gaz. 451. Use of Machine in Factory; Workmen Not Pledged to Secrecy.-Use of machine in a factory where the workmen are not pledged to secrecy, is a public use, even though chance visitors are excluded. Perkins v. Nashua Card etc. Co., 5 Bann. & Ard. Pat. Cas. 395. When an inventor puts his incomplete or experimental device upon the market and sells it as a manufacture more than two years before he applies for his patent, he gives the device to the public in the condition or stage of development in which he sells it; and his patent cannot cover what he has thus given away. Lyman v. Maypole, 28 Pat. Off. Gaz. 810; s. c., 19 Fed. Rep. 735. A machine and a process were used for a series of years without a change in either. Held, not an experimental use. Manning v. Cape Ann etc. Glue Co., 108 U. S. 462. An inventor allowed two persons the use of his invention without any injunction of secrecy or other condition. Held, a public use. Manning v. Cape • Ann etc. Glue Co., 108 U. S. 462. Double Purpose of Profit and Experiment.-A patent is void if, more than two years before the application for it was filed, the patentee sold the patented article for the double purpose of seeing whether they would sell and of realizing from the proceeds. Consolidated Fruit Jar Co. v. Wright, 12 Blatchf. (U. S.) 149. Offering a device for sale whether any sales were made or not, two years prior to the application, invalidates_the patent. Plimpton v. Winslow, 23 Pat. Off. Gaz. 1731. or to test the invention.1 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, or what is merely Partial Success of Machine.-Though the machine embodying an invention was not a success as a whole, if used or especially if sold over two years prior to the application, the patent is void. Newark Machine Co. v. Hargett, 28 Fed. Rep. 567. 1. Where the inventor uses his machine for the bona fide intent of testing its qualities, although he makes no alterations. Elizabeth v. American etc. Pavement Co., 97 U. S. 126. Where a use for profit was incidental and subordinate to the experimental use. Jennings v. Pierce, 15 Blatchf. (U. S.) 42; s. c., 3 Bann. & Ard. Pat. Cas. 361. Where the use is an experiment, although the public derived an incidental advantage. Elizabeth v. American etc. Pavement Co., 97 U. S. 126. › Where the use prior to the period of two years was by way of trial and resulted in a change of the machine. Pitts v. Hall, 2 Blatchf. (U. S.) 229. Where a machine is imperfect and requires continuous experiments to remedy the defects of its organization. Sprague v. Smith etc. Mfg. Co., 12 Fed. Rep. 721; Eastern Paper Bag Co. v. Standard Paper Bag Co., 30 Fed. Rep. 63. Where a machine is put up and used on the premises of another, and the use enures to the benefit of the owner of the establishment, but is used under surveillance of inventor for the purpose of enabling him to test the machine. Elizabeth v. American etc. Pavement Co. 97 U. S. 126. Distinction Between Public Use and Use in Public.-There is an obvious distinction between a public use or a use by the public, and an experimental use in public. Locomotive Truck Co. v. R. Co., 1 Bann. & Ard. Pat. Cas. 470. A Use In Public of a Device Which Cannot be Tested Privately.-If a thing cannot be tested in private, a public use may be deemed experimental. Campbell v. New York, 20 Pat. Off. Gaz. 1817; s. c., 9 Fed. Rep. 500. Sale of Imperfect Invention.-Sale of imperfect invention does not invalidate the patent. American Hide etc. Co. v. American Tool etc. Co., 1 Holmes (U. S.) 503; Henry v. Francestown Soapstone Co., 5 Bann. & Ard. Pat.Cas. 108. The test, whether an article is perfect or imperfect, is whether it is or is not the invention-that is, "whether it embodies the whole of it." Draper v. Wattles, 3 Bann. & Ard. Pat. Cas. 619. When Machine Is Altered.-If a machine as originally constructed is subsequently altered so as to make a machine substantially different in its construction and mode of operation, the time begins to run from the completion of the last machine. Haskell v. Shoe Mach. Co., 3 Bann. & Ard. Pat. Cas. 553. Distinction Between Completed Invention and Completed Machine.-The distinction between the invention and the machine which embodies it must be preserved. The invention may be perfect, and the machine which embodies the invention may be an imperfect machine. American Hide etc. Co. American Tool etc. Co., 1 Holmes (U. S.) 503; s. c., 4 Fish. Pat. Cas. 284. v. 2. U. S. Rev. Stats., § 4886; Page v. Ferry, 1 Fish. Pat. Cas. 299; Lowell v. Lewis, 1 Robb Pat. Cas. 131; Wintermute v. Redington, I Fish. Pat. Cas. 239; Winans v. Schenectady etc. R. Co., 2 Blatchf. (U. S.) 279; Vance v. Campbell, 1 Fish. Pat. Cas. 483; Shannon v. Bruner, 33 Fed, Rep. 289. v. An invention which exposes the operator to great bodily harm cannot be regarded as useful. Mitchell Tilghman, 19 Wall. (U. S.) 287. Or is simply dangerous. Converse v. Cannon, 2 Woods (U. S.) 7; s. c., 9 Pat. Off. Gaz. 105; Hoffheins v. Brandt, 3 Fish. Pat. Cas. 218. An improvement, which, in effecting a subsidiary end (as arresting the sparks of a locomotive), is destructive of the ends of the principal machine, is not useful. Wilton v. R. Co., 2 Whart. Dig. 360. But it must be of some use or benefit. Cox v. Griggs, 2 Fish. Pat. Cas. 174; Wintermute v. Redington, 1 Fish. Pat. Cas. 239. It must not be "utterly worthless.' Vance υ. Campbell, I Fish. Pat. Cas. 483; s. c., I Black (U. S.) 427. 3. Bedford v. Hunt, 1 Mason (U.S.) frivolous.1 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, or is capable of improvement, or has even been driven out of the market by later inventions,5 is unimportant. 302; s. c., I Robb Pat. Cas. 148; Westlake v. Cartter, 6 Fish. Pat. Cas. 519; s. c., 4 Pat. Off. Gaz. 636. 1. Lowell v. Lewis, 1 Robb Pat. Cas. 131; Winans v. Schenectady etc. R. Co., 2 Blatchf. (U. S.) 279. Ad An invention must not be for a frivolous object, "like the invention of an improvement in playing cards." ams v. Edwards, 1 Fish. Pat. Cas. 1; Wintermute v. Redington, 1 Fish. Pat. Cas. 239. Or only applicable to gambling purposes. Nat. Automatic Device Co. v. Lloyd, 40 Fed. Rep. 89. Utility a Question of Fact.-Utility of an invention is a question of fact usually depending upon the actual experiment. Tilghman v. Mitchell, 4 Fish. Pat. Cas. 599. And the court will not declare a patent invalid for want of utility, except on the strongest proof. Kearney v. Lehigh Valley R. Co., 32 Fed. Rep. 320. Evidence of Utility.-Where an invention supersedes all others, it is very strong evidence that some useful result was obtained. Smith v. O'Connor, 6 Fish. Pat. Cas. 469. "In face of the proofs, the denial of the utility of the invented process is remarkable. The evidence shows the invention or process to have been pre-eminently useful. It has gone into very extended use throughout the entire oil regions and its use has immensely increased the production of oil." Roberts v. Schreiber, 5 Bann. & Ard. Pat. Cas. 491. The remarkable increase of demand for brushes of that class, together with substantial imitation of it by the infringer, are conclusive evidence of the utility of the invention. Megrave v. Carroll, 5 Bann. & Ard. Pat. Čas. 325. Any invention which increases the salability of an article may be said to contain the elements of utility. New bury v. Fowler, 28 Fed. Rep. 454. 2. Doherty v. Haines, 1 Bann. & Ard. Pat. Cas. 289; Gibbs v. Hoefner, 19 Fed. Rep. 323; Curtis on Patents, § 106; Adams v. Loft, 4 Bann. & Ard.. Pat. Cas. 494; Fryer v. Mutual L. Ins. Co., 30 Fed. Rep. 787. The utility need not be general; it may be limited to a few cases. Bedford v. Hunt, 1 Mason (U. S.) 304; s. c., 1 Robb Pat. Cas. 148. 3. An invention, to be useful, need not supersede by general utility all other inventions now in practice to accomplish the same purpose. Bedford v. Hunt, I Mason (U. S.) 302; s. C., I Robb Pat. Cas. 148; Shaw v. Colwell Lead Co., 20 Blatchf. (U. S.) 417. Nor be better than anything invented before, or that shall come after. Hoffheins v. Brandt, 3 Fish. Pat. Cas. 218. Even if it does not accomplish its object as well. as other articles intended for the same purpose, the patent is not void. Wilson v. Hentges, 26 Minn. 288; Bell v. Daniels, 1 Fish. Pat. Cas. 372; s. c., I Bond (U. S.) 212. That it does not accomplish its object as well as another affects the value of the patent and not its validity. Bell v. Daniels, 1 Fish. Pat. Cas. 372; s. c., I Bond (U. S.) 212. In ascertaining usefulness, it is not important that it should be more valuable than other modes of accomplishing the same results; but it must be a practical method of doing the thing designated, in which its utility may more or less consist. Roberts v. Ward, 4 McLean (U.S.) 565. It is not necessary that it should be the best thing of its kind. Winans v. Schenectady etc. R. Co., 2 Blatchf. (U. S.) 279. 4. Wheeler v. Clipper Mower etc. Co., 10 Blatchf. (U. Š.) 181; s. c., 6 Fish. Pat. Cas. 1; s. c., 2 Pat. Off. Gaz. 443; National Hat Pouncing Mach. Co. v. Thom, 25 Fed. Rep. 497. 5. Cook v. Earnest, 2 Pat. Off. Gaz. 89; s. c., 5 Fish. Pat. Cas. 396; National Hat Pouncing Mach. Co. v. Thom, 25 Fed. Rep. 497. Simplicity of Invention Not a Bar.An invention may be simple and not import the exercise of very high mechanical or scientific talent. Wayne v. Holmes, 2 Fish. Pat. Cas. 20; s. c., I Bond (U. S.) 27. Lack of utility is not to be inferred from simplicity. Bell v. Daniels, 1 Fish. Pat. Cas. 372; s. c., I Bond (U. S.) 212. A billiard table having the broad side rails beveled or inclined inwards |