The New York herald., 1851-11-06

conc urrence.
And this consideration furnishes strong argu-
ment for the rule that the Commissioners action
in ordinary cases Of re- issue shall have more than
prina facie influence in finally deciding the question
Of that rue~whether it leaves nothing open for dis.
cussion before the Court but the issue Of fraud
appears to have been the undivided opinion of the
Supreme Court, in the case OF Simpson, 1 How,
it, as We did in Battin vs. Tsggert, cases in which
the invention claimed in the ressued patent is obvi
ously different from that claimed in the original;
whether, with Judge story, in Allen vs. Blunt 3
St0r, IlO, and in Woodworth vs.. Stone, Ibid, 749,
we hold the grant of the amended patent to be
Conclusive as to the existence Of all the facts
which by law are necessary to entitle the Commis-
soner to issue it; at least, unless it is apparent, on
the face OF the instrument ITSELF without any aux
ary evidence, that he was guilty of excess of
thority, or that the patent was procured by fraud
between him and the patentee." Whatever be the
rule or Its limitations, the propriety Of the issue
in the before us can hardly claim judicial re
view. There is no want Of jurisdiction, either appa
rent on the face Of the proceedings, asserted by
the evidences; and there IL No fraud imputed, or
Justly imputable.
Nor is there any fragrant diversity of claim AT
ter repeated and careful examination of the three
specifications, with their respective claims, fully
aided by the acumen of highly ingenious counsel,
We have not found material difference OF import
between any of them. The order in which the SUB
jects of claim are marshaled is no; the same
throughout; phrase is more concise in one, in an
u
general expression takes the place of the descriptive
or defining language, or the detailed particulars OF
another; in word, tney are unequal as specimens
OF artistic writing, and close examination may de-
tect defects in the two first, which are repaired in
the last. Be-. they ali describe the thing es
seniially and should 6nd il easier to argue that
neither the frs. nor the second specification could
be rig htfully regarded as "inoperaive or rvalid
for want Of precision and cearness than that there
was an important variance in the second from III 3
first, or in the third from either.
There observations form the answe. TO the third
objection.
Mr. Morse's patent OF 1910, in all it's changes, as
serts his title 20 two distinct patena ole subjects
the first, founded the discovery CT new art; the
second, on the invention Of the means OF prac-
tisDg it.
l. That he was first TO devise and practice the art
Of recording language at telegraphic distances, by
the dynamic force Of the electro magnet indeed,
by any agency whatever, is, to our minds, plain
upon all the evidence 1t is unnecessary to review
shs testimony for the purpose OF showing this. His
application for patent ia April, lsS, was preceded
by series OF experiments results, lustrations ana
proofs Of final success, which leave no doubt what
ever but that his great invention was contaminated
before the early spring OF 1881 There Is no one
person whese invention has been spoken OF by any
witness or referred to in any book involving the
principle Of Mr.. Morses discovery, but must yell
precedence Of date to this. Neither Steinhal, nor
Cooke and w heatstope, nor Davy, nor Dyer, nor
Henry, had at this time made recording telegraph
Of any sort. The devices Of the three frs. were
merely SemQyOres that spoke 10 the eye for the mo-
ment-besring about TIE same relation TO the great
discovery now before u.s. as the Able Scara IN 7en-
ton Of visual bet for the purposes of CONVEX
sation bore to the ar: of printing with movable
types. Mr.. Dyers had no recording apparatus, as
be expressly tells US; and Professor Henry had con-
tented himself with the abundant honors OF his bo-
ratory and lecture rooms.
When, therefore, Mr.. Morse claimed in his first
specification, "the application OF electro magnets
'for transmitting, by signs and sounds, intelligence
between distant points" and ' the mode and pro-
af Or m n u 0f
intelligence transmitted between distant points,;
and when in his second specification he claimed the
making use ofthe motive power Of magnetism, when
developed by the action Of currents Of electricity, as
a means feperating and giving motion to schinery
which may be used TO imprint signals upon paper or
other suitable MATERIAL "for the purpose Of tele-
graphic communication" characterizing his " in
venton as the first recording or printing telegraph
by means Of ele:tro- gnetism;" and when 10 his
third, after again describing his machinery and
process, he once more characterized it in the sane
terms and claimed as the essence OF his invention
the use ofthe motive power CT the electric or gal
vanic current, electro galvansm, as be now terms
it however developed, for making or printing in
telgible characters, signs or letters, at any dis
tance through there several forms Of specif cation
claiming, and renewing his claim, Of pro 9erty in
the same invention, as it seems to us-and claim
ing in each and all Of them more, rs it also
seems to us, than he was justly entitled to claim
he declared the existence Of art, asserted his
right in il as its inventor and owner, and announc-
ing fully its nature and dement's, invoked in return
the contracted protection Of the laws.
From this time his title was vested as patentee Of
the art, and other men became competitors with
him only in the work Of diversity ing and perecting
its details. He himself used the stylus, to impress
paper or parchment, or wax coated tablets, 1t may
be; though he sometimes made q colored record by
the friction Of pencil; another substitutes liquid
pigment, or stains his paper with hemical ink;
the next perhaps stains his paper beforehand, and
writes on it by decomposing the csloring matter;
and another yet, more studious Of originality than
est writ in n AZ n
line, and manufactures his ink as he goes along, by
decomposng the tip Of his stylus 90 chemically
mois.ened paper. They are, no doubt, all OF them
inventors; as was the man who first cast types in q
mould, or first bent metal into the practical sem
bance Of gray goose quill, first devised sympa
thetc ink, that the curious in letter writing might
veil their secrets from the PrOfane All these tOiled
ingeniously and well, to advance or embellish pre-.
existing art But they had no share in the discovery
Of the art ITSELF and can no more claim to share the
property which its discovery may have conferred on
another, than he who has devised some appropriate
setting FOR gem, can assert an interest In the gem
itself
Yet admitting, for the sake OF argument, that
Mr. Morses leading invention is correctly designated
as a new art; and that he has sought to patent IL
accordingly, by a compliance with all the reqaisi-
tions Of the statute; it is still contended and with
much OF elegant research into the radical meaning
Of the term, that an art, as such, cannot be made
the subject OF patent. But interpreting language
as men use it around as and as it reflects ideas, the
question can hardly be regarded as doubtful. The
constitutional provision under which our patent
laws are fra med, looks to the promotion OF useful
arts" The act ofCongrsss places "a new and use
fu art" among the discoveries it purposes 70 protect
and assigns 70 IL the frst place on the list. The
statute of 2l James J., G. 3, from which the patent
system Of England has grown up, speaks only Of
''new manuisctures" Yet the judges Of that king
dom find warrant in this limited expression for
sustaining patents for art, and even for the re-
newed discovery Of al art that bad been lost. see
the hot blast case Webster, p. 653, III, and Mr.
Webster's note at ?. rs and the case Of Wright's
patent, It'd. 736, ard the cases grouped in Hind
march, 77-l02
Indeed, the author whose treatise we have cited
last asserts with much phsss, that il is the art,
and nothing else, which is the characteristic subject
Of every privilege granted by patent under the
statute, p y2 And IL may be noted, as no. without
interest, that in just accordance with the spirit OF
the English law cases, the English patents Of Cooke
y Wheststone, Davy, and Balm, Claim property in
he rta hich nj hnrirna