The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1849-04-17

pdCeu IN snlldI pOSlllOn, WOun resign tn0
| We are, your ob't serv'ts,
James shs f Lewis s.T1s M esy' acs oss
M. p. Denney
| ----Soe-
JUDGE CRANCH's DECISION IN THE CASE OF
Balm Us. MoRsE.-In the very able opinion de
livered by Judge Cranch, in the case of Balm Us
Morse, on Bain's appeal from the decision of til,
Commissioner of Patents, we have clear exposi
ton of what is patentable under the Patent Law
If Judge Cranch's opinion is correct, and Justice
Mckinley regards it as sound law, the injunction
against O'Reiy, issued by Judge Monroe, canno
be maintained. We understand that Judge Nc
Kinley to preside in the of Morse rs. OReily
at Frankfort, next month; and, in all probability
the injunction granted by the District Judge will
| be dissolved
The counsel of Mr. Morse, in argument, said:
Its obvious, and is admitted by our adversaes thai
Moes instrument Is very different thing. in its form and
| structure, from Bain's."
But form and structure very important mat
tiers in machinery; and if they enable the operator
| to do the work in better manner, or with more
ease, or less expense, in less time, it is no inter
| ference, but Is an improvement for which the in
| ventor may have patent
When the application is for a patent for a COM
bination of machinery and materials form and
DocOuie SUBSTANCE; lney are OF the
| of the invention and an admission that Morse 3
instrument is very different thing in its form and
| structure from Bans, is an admission of a fact
which is praa tacie evidence, at least that there is
| no interference between the two, and throws the
burden of proof on the other side
There was no evidence laid before the Commits
sioner of Patents upon the question of interference
| so that he must have adjudged the Interference
upon comparison of the two specifications; posi-
bly, without considering that the only patent which
either could obtain would be patent for his own
con binaion, all the materials of which Mr. Morse q
combination consists being old and not now patent
able.
The question is not now, whether the claims of
Mr. Balm and Mr.. Morse interfere as to matters not
now patentabie /; but whether they interfere as to
matters now patentable; and the only matter now
patenable, in Mr.. Morse's specification is his own
combination of machinery and materials That
combination constitutes his machine; and his ma
chine is admitted to be very different thing in its
form and structure from Mr.. Bain's. Form and
structure constitute the identity of machinery. The
combination consists in the form and structure
and the patent if issued WILL presume, be issued
for the form and structure of the instrument.
1t being admitted that the form and structure of
MIR. Bans instrument is very different from Morses,
there can be no interference in that respect and if
form and structure constitute the identity of ma
chlnery, there is no interference in the two nstr
ments and if the instruments are the combinations
or the result of the combinations, for which patents
are now claimed there is no interference in the two
instruments in regard 10 any matter patentable
But 1t is not necessary to rely alone upon the adj
mission OF Mr. Morse's counsel to show that there
is a great difference between The machinery used
by the contending applicants to effect the Object
l. e. the rapid transmission of intelligence by the
power OF the electric current. Any one who will
compare the specifications, and drawings, and mo-
dels, VIII at once perceive the difference.
A patentable improvement is not an interference.
The Commissioner in Jao
1t appears from the records of the office that the app
was made APrls 1913 and upon alton Of his claims
mltted to patent no invention of like character appearing
mt the public 1a records of the office Pubca
Arc; aSyss d were Y and i found that sspea
been there deposited in compliance with provisions Of law
which presented claims conflicting with those before
This shows that but for the supposed interfering
claim of MIR. Morse, Mr.. Balm was entitled to his
patent; and if there be no interference in respect
to patentabe matter, he is still entitled to patent
for his own combination.
But the counsel for Mr. Morse say:
There is an inerfeence-that Bains third claim paIpa.
Balm could DO al that Morse claims right to do
e1 ,si Write Moes characters precisely Morse
ana tnat therein consists the Interference
But the only matter now patentable and claimed
In Mr. Morses specification, is his peculiar comb
nation o. material and machinery as therein desert
bed. All the materials used in that combination
are Old, and he will not, under this patent be emit
tied to the exclusive Use of any of them separately
or In any other combination than that which he has
described In his specification. There cannot be |
patent for principle; for the application of
principle; nor for an effect Two persons may use
the same principle and produce the same effect By
d!Terent means, without interference or infringe
ment, and each would be entitled to patent for |
his own invention-Godson, 60, 68. a.
SO, In the present case although the mower used |
by both applicants is the same, and the subject the
same; yet as the effect is produced by means which
appear to me so different as to prevent an interfe-
renee, the question Of priority Of Invention does not
section of the act of 1885, but under the 18th section
OF the same act. So that each of the applicants
may have patent for the combination which he
mas invented and claimed and described in his spe-
he shall have complied with
all he requisites of the law to entte him to patent.
1t this were doubtful question: ] should think
It my duty to render the same judgment, SO as to
give Mr. Balm the same right to have the validity
OF his patent tested by the ordinary tribunals of the
country which Mr.. Morse would enjoy as to his
patent; and finally TO obtain the judgment of the
supreme Court of the United States upon it, For
i the Commissioner and the Judge should reject
MIR. BAN application for patent, the decision
would De hnal and conclusive against him, unless
ne could obtain relief by bill in equity under the
10th section of the act Of 1885, and The 10th section
'ie act vi 1908; winch, 1t Is said, is doubtful.
l am, therefore, of opinion, and so decide
That there is no interference in the claims of
hese applicants. in relation to any matter con-
aimed in their respective specifications nop patent
lble; and therefore that Samuel F. B. Morse is
entitled to patent for the combination which he
has invented claimed and described, in his speci-
alton, drawings and model. And that Alexander
Balm is entitled to patent for the combination
Which he has invented, claimed and described, in
MS specification, drawings and model; provided
ney snail respectively have complied with all the
equsltes OF the law, to entitle them to their
espective patents.
ny other points involved by the reasons of appeal
w. CRANCH.