The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1850-04-18


| gree OF heat, by means of which his improved
compound is etfectually changed. The words Sin
operative, or invalid, by reason Of defective OF
insufficient description or specification" means
either that the speculation is not sufficient to ss-
tain the claim made in the patent, that the claim
is not responsive to the Improvement described in
the specifcation-and the first patent exhibits
neither Of these defects-the specification supports
the claim, and the claim fulfils the specifications
Now there is not one word in all this of the great
claims in his amended patent-the curing of India
rubber, as simple substance, by heat. He does
not appear have been aware of its practicabilty
certainly, not to have discovered it. The descrip-
ton, the specification and the claim, all for
triple compound, which compound can be cured by
artificial heat. To call this nadvertency, accident
or mistake, is manfestly perversion of language.
Neither the first patent in any be said to
be imperative or invalid by reason of any defect or
erroneous description.
Fourthly If Goodyear knew when he issued
his first patent that simple rubber could be cured
by heat alone, and did not claim it, it must have
been because he did not believe himself entitled to
the claim, or must have concealed it with fraud
ulent or deceptive intention. BY his amended pa
tent he claims this the great inventon-the prin-
cipa, to which all others are but accessories and
yet, from June, 1874, until December, lSi9-more
than hive years-he has held his peace. The infer
ence of fraud or deception is fair one, from the
facts appearing by the papers themselves
am, therefore, of opinion that the amended pa
tent granted to Mr.. Goodyear is illegal and void,
and proved TO be by the face of the letters them
serves, WllnOut the ald OF auxiliary testimony.
EDGAR S. VAN WINKLE.
New York, February, 1850.
concur with Mr.. Van Wrinkle, that the patent
recently granted to Mr.. Goodyear, dated Dec. 25,
l8i9), upon the surrender of his patent of June,
IS44, is void. +. Il. CUTTING.
February 2, 1850.
On comparing the original and amended letters
patent above referred to, am of opinion that enough
appears on the face Of them, taken together, TO
show the nvalidity of the latter.
Boston, Feb. ~, 1850. BIZ. RAND.
BosroN, February, 20, 1850.
DEAR SIR Enclosed you have my opinion under
the printed opinions of Mr.. Van Wrinkle and Mr..
Cutting. II was formed from careful collation. Of
the two letters patent, e. the original dated 18th
June, 1874, and the amendment, dated 18th De-
cember, 1919.
| think, considering the circumstances under
which the latter was issued, and the strange shape
in which il appears, that it must awaken the atten
ton of every one conversant of these matters, who
may see these patents and compare them, not only
TO the state Of the patent law, but to the state of
the patent Office
Respectfully yours, &C., BN. RAND.
ii. ii. DAY, New York.
OPINION OF r. II. GnIErr.
WASHINGTON, Feb. 25, 1850
SIE-You ask my opinion concerning the va
ldity of patent issued 10 Charles Goodyear,
under date OF Dec IS, lsa9, upon the surrender OF
the one granted to him June Is, 1874
The 18th section OF the patent act of 1896 author
ICES surrender and reissue:-
LIST. Where the patent granted is imperative or
invalid by reason of defective or insufficient de-
scriptiOn or specification
I'd. Where ii is imperative or invalid by reason
OF the patentee claiming in his specification as his
own invention more than he had right to claim
as new.
But il can be done in those cases, only when the
inoperatiycness or invalidity has arsen-
LIST. "By inadvertency, accident, or mistake"
and
I'd. Without any fraudulent or deceptive inten-
ton"
No patent can be surrendered, unless it is inope-
rdtire or inrdtid, and then only in two cases, the
one where this appears from the description spe-
cihcation and the other, where the patentee claims
as his invention what he had no right to claim as
new. The former must appear by the face of the
patent, and the latter from the facts ascerained in
a lawful manner. In these two cases il can only
be done in absence Of FRAUDULENT intent, and
where the error arose from inadyertency, acc-
dent, or mistake" There is no authority for the
surrender or reissue in any other case. The
eighth section of the act OF 1897 does not increase
the number OF cases where surrender is authorized
but il simply authorizes the commissioner, when
patents surrendered, TO revise and restrict the
specification of claim in the same manner as he
could on original application.
In the present case, the following questions
arise;-
LIST. Were the first letters invalid or imperative
in consequence OF accident, inadvertency or mis-
take" and without any fraudulent intentl
I'd. The commissioner having received the sur
rendered letters patent, and issued new ones, are
his acts in so doing, in the absence of fraud and
| collision, conclusive upon third partesl
have read the first letters and specification of
| Mr. Goodyear, and cannot learn from them that
they are imperative or invalid, from a defective
| specification or description. They appear to be
both operative and valid. His using and relying
upon them between five and six years, is strong, il
not conclusive, evidence Of Mr.. Goodyear's practi-
cal construction 10 the effect. lie may have
omitted things in his first specification, but that
omission did not render his letters imperative or
invalid cuchs omission will nof
render and reissue. If his whole invention was
not included in his first letters there other law
iul modes OF securing the residue. There may
have been mistakes, and accidental, inadyertant
in them but fthey did not render the patent
imperative invalid, the statute does not authorize
a surrender. These must be corrected in another
way, whether fraudulent or not. Tam Of opinion
that this patent ,rds NOT imperative or iiraiid, by
reason Of a defodire or insufficient specification
bat hatu aJpsars its face raid and inoperatirs,
and that its surrender on that account icas I'M
authorized.
If it was invalid have no evidence before me,
showing whether there was an absence of fraud
and whether the invslidity has been occasioned by
inadvertencc, accident or mistake"
IL does not appear, from the face Of the two
patents, that the first included anything which Mr..
Goodyear wished TO include in consequence Of his
having claimed as his own what was not new.
therefore take II for granted that the first patent was
no, surrendered and amended for this cause.
I'd. The second question -, whether the acts OF
the commissioner, on the surrender and REISSUE,
are conclusive on third persons or partiesi
Ian, therefore Of the opinion that on both grounds
the acts Of the commissioner are not conoiusirt, bat
ntJcd 10 denomination.
r. II. GILLET.
G.. M. KSEAvErT, New York.
OPINION op GEORGE oRrscow
PmIADELrHIA, March 2, 1850.
The separate letters patent issued 10 Charles
Goodyear, dated December .. 1910, for alleged
" IMPROVEMENT IN FELrTNo INDIA RuBBEn wIrr
COTTON FABRIC, are, in my opinion, clearly In
valid
The claim in the specification Of the new sub
stued, separate" letters patent IL for exactly
the same thing, with an addition, however, Of an
entirely new claim, Of vastly more importance,
which IL stated az follows
"What claim as my invention, and desire TO
secure by letters patent, Is the curing Of Caout-
chouc, India Rubber, by subjectng Il TO the ac-
ton Of high degree Of artificial heat. &c, &c."
The cancelled patent relates solely to the curing
OF the triple compound" Of caoutchouc, sulphur,
and white lead, while the separate or substituted
letters patent extend to the curing OF the gum IL
cell, IN its simple form-a concentration the posi-
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