Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1810-04-17
Judge Washiagtou delivered tac Cpl I
Mon of the Court.

THAT the defendant is liable for USING
,the piai1tifs improve nent, in appIi.
cation % the second wheel and pair Of
stones, since the s2d anuary, 1908, or
at all events, since the time when tue
defendant received notice OF the PLAIN
itifi's patent, because the proviso In
Ethe act passed on the sfss OF January,
f8os, for the relief Of Oliver Evans,
extends only to- asea ofimprovements
erected for use, or Used prior to she
tPassage of said law, and does not pro.
tect the defendant from damages, for
Using after the issuing of the patent
under this law, an I'm Improvement erect
ed prior thereto.
On the other aide it is insisted that
such q construction " ould render this
an ex post facto law, and consequence
liy repusnaut TO the constitution. To
avoid. which, ii w-onid be SO construed,
as to connscs with the use of Tie I'M
!provemens the eSeesion OF it, subse-
qusnt TO the graIsa Of the patent.
Although the court at the last ter i, /,
and upon the arst Alignment, felt
strongly incl;oed 70 give it the con.
struction contcadci for hy the defen-
dant; yet upon further rejection, we
are satisfied that We should do vic
lenco TO the wcrds, which no rule of
construction should, warrant.
Ahe words of chat Prcv:so arr g that
nopefson who shall have used the said
improvement, or have erected the same
for use, before the issuing OF the said
Iratent, shall bs liable to damsqss
therefor"
That is, shall be liable for having :.
rsrtcd, or for hsvisC used the improve
nlent, at any tire prior to the patent.
But respect to the use oft, after issu-
ing of the patent, no protection what
ever is afforded against the claim for
damages, under this Law.
/ The mex. eiqai. is--does the re
tasra. law give to the ffia.aislEg : risns
Iof recovery pgainss aepetsca who e.
rectsd a nlaehinc, prior 70 the issuing
OF patent to the frat inventor of il,
and who afterwards made use of the
lsame.
| The act Of the 18th April, 1900,
which as 10 this peiut is the only Law
in force, declares that if any person,
without permission from the inventor,
| ehall make, devise use or cell the thing
| whereof the exclusive lights secured
TO the patenlee, he shall pay three times
the damage sustained by the patantec,
g TO be ascertaincd by jury. NOV
whatever doubts might have existed
as to the meaning Of the words g d..
wise and USE" in the sth section of the
act of a1st February, 1898, thus con-
Hecting the using with the Gevising of
the improvement, there can be none
under the 81 section OF the act of 1900,
which repcsls the whois ef the 5th sec
1 ton Of the old law.
1t 10 plain that the using of an i'm.
4 proyensnt invented by another, and
secured by patent, is Ct itself an of
fence, no matter at what time such
Improvements was devised or made.
Whether the word " deyise,n which
has been good deal criticised, is sy-
nony nous with make, as one OF
the plaintiffs counsel seemed to think,
or means to invent, mere act
of TIE mind. construction which,
whether il DC 10 make, or TO contrive,
to plan, form or design, 1t is unneccs.
sary in this case to decide, because the
charge against the defendant is the o.
sing Of the plaintiffs improvements,
unconDected with the making OK de-
! visirg it.
Bat il is objected to this construS
on, that it would render the law e
post facto ia operation, in respect to
one who has erected his improvement
prior TO the granting of the patent, 70
the plaintiff.
1t must be admitted that cases of
great hardship may occur, if after
man shall have gone 70 the expense o
erecting machine, for which the IN
lventor has NOT then and never may OBJ
tain a patent, he shall be prevented
from using it by the grant Of su5se-
qucnt patent aud It's relation back to !
the pateutee's prior invention. But
the law ia this case cannotbe termed ex
post fAeto, or even retrospective in its
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