The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-04-19

CHARGE OF JUDGE NELSON ON THE LAW REsPEcrIN


ton the infringement Of patent for making bricks
The tried former occasion when II
pied the eight days. and 1t has been trial
for the last six days Messrs A. L. Jordan and Staples
having concluded the summing up on the part Of the
defendant Mr. Y. d. Cutting closed on behalf Of the
plaintiff.
Judge Nelson then proceeded to charge the jury. lie
said the patent controversy In th granted
the Sd September 1912 and Is for Improvement in
the construction Of the brick press moulding machine
for making brick The description l. set forth with
great particulary and may say, clearness by the
tentee Models, to. have been produced which render
It perfectly inteligible After describing the various
with specification Of the particular things which he
claims to have invented and TO which shall now call
your attention. The first Is the segment slides acted
on by springs in combination with the patten or hop
per- constructed or arranged described in the spec
cation The object Of this contriyance was to close
the shot in the end of the press which was open,
and through which the shaft Of the press moved The
object was to prevent the mortar from being
that he the original inventor Of the combination of
the carriage f. suspended at It's end in the frame
with the connecting rods and shalt for freeing the
chine from distractions. The construction OF the
riage free itself from dirt &C. meaning all the
parts used by the patentee in the construction Of this
carriage to effect the purposes intended that Is to
free it from dirt, which seems 10 have been difficult
thing in these machines this ARRANGEMENT the plaintiff
claims his invention. and the carriage thus arranged
in combination with the movable carriage construct.
ed in the mode pointed oat IN his specification These
the three things he claims each OF which he supposcs
to BE- improvement all prior machines in As
to the first claim the defendant insists that whether ORR
cinal or ot the contryance destitute of utility and
could not be carried into practical effect and aban
doned by the patentee immediately The defendants
counsel assume the fact to be proved and then they in
t hat this claim il invalid either from want Of i
nalty utility the whole patent becomes. therefore.
void. This is question Of law for the Court to decide
1t il argued by the defendant that in order 10 have
the patent the patentce should have dclamed this part
Of his patent under the It'll and 9TH sections Of the
Of 1s3' that having failed TO make this disclaimer and
TO record it, this suit cannot be maintained and that
the whole patent Is void Though there l. evidence
going TO show that this conriyance may be and
not used before, yet, perhaps, the weight of It
rs that IL useless. could be ODeratel-
perhaps this is the fair result OF the evidence
have looked into the provisions Of the statute and tn,
referred to- and of opinion that this suit may
be maintained under the two sections seventh and ninth
Of the act Of 1857 notwithstanding disclaimer has not
been made recorded; but. in that the plaintiff
would not be entitled TO costs have always heretofore
acted upon this construction of the act but had
before looked particularly intoit The provision in the
ninth section that shall be recovered unless
disclaimer is entered before the suit certainly shows that
the action may be maintained for other parts of the in
vention II the disclaimer has been made and entered
in the patent Office before the suit has been instituted
then the plaintiff RECEIVERS costs in the usual way indie
pcndenty Of any question Of disclaimer but il in the pro-
rress Of the trial it that disclaimer ought
have been made part Of his claim, he may
but shall not be entitled to costs Another question
arises under this section whether there has been
sonable delay negligence in making discaimer,but
that's question which TO the right Of action If the
delay shows great negligence the jury may say that the
patent is void This provision, regulating disclaimers,
applies only in the where the part claimed by the
paentee is material and substantial part Of the thing
patented, Of which he Is not the inventor. This
disclaimer, Therefore, only applies to where
the thing is mate rial and substantial part Of
the machine invented. The que tion, therefore
is of importance in the determination Of the rights
Of the party unless it be described material
and essential part of it, has been introduced into the
description to mislcad the public Of opinion If
you find that this slide spring il not essential to the
machine and has not been introduced into the patent to
mislead the public il affords ground for inyalidating
the patent Then, TO the second claim II i have
already stated it, Upon the view have taken of this
patent, the question presented in the second claim will
be found. l think involved in the material that
arises under the third claim Therefore it Is i'm
portant to call your attention with great particularly
to this second claim. In order to illustrate this
view the claim set in the combination of the carriage
T. constructed with the connecting rods and shafts
for freeing II from ob-tructionnow, this carriagc
which is part Of the combination arranged by the
patentee, is new Improvement then that. combined
with the continuance for letting down. though the lat
may old the invention OF the carriage il useful
combined with the old contrvance will maintain the
claim under the sscond clause because one part Of the
combination being new when united with an old con-
triyancc makes the whole necessarily one
Bearing this in view, i pass to the third claim,
and to the real point in controversy. which ~
/ have already stated Ii. This arrangement Of
the carriages j. n distinct AMI uIe pendent claim
the substrutum OF the invention We uld fail This
brings the very much to the point whether that
carriage constructed il Is found in the specification
and in the model taking altogctcr Is Of itself an i'm
proyement upon the carriages which had been la
prior TO the invention Of the plaintiff This
10 uphold the third claim and IL maintained it will up
hold the second. This il question Of fact great
deal Of evidence has been given both sides all bear
ing n this point and there some legal
principles bearing the qucton Of fact and In which
may aid you. il Is a question which must DC determined
by the good sense and sound Judgment oi the jury Ii
is not Of whether this was the fret bed
ragc that had been used be l. admitted that
carriages and beds had before been used but the ques
ton is comparing the plaintiff carriage instruct
ed by him. whether il IL substantial improvement for
which II Is used on all Of the previous carriages for
NAL change would not be- sufficient such change in
ts proportion change 81 form in the instrument
contriyaBce; different shape would not be change
within the meaning u the law In the idea Of inn
provement upon old contrvsnce Of sufficient impor
the af being the subject
patent. the invention must embody some originality
aud scm'thng substantial in the change producing
more useful en ct and operation. IL l. proper to
that in d.ibernting upon improvement claimed to
have been made in old instrument, aud which is Of
suc MT value and Importance to become the subject Of
patent the jury have the right to take into consdra
tion. in connection with the change, the result which
has been produced for this that the result IL
CRAFTY henefeia-greatly useful than the old
conryance upon which IL improvement; IL such Is
the result II does in measure reflect back aud tends to
characterize in some degree the Importance Of the
change. do not with the learned counsel for the
def ndant that respects this carriage constructed
by the patcntcs that u IL To bc regarded embracing
combination 1T materials within the principles Of the
pate at law aud that unless the defendant has taken the
whole of the combination he Is not liable My own con-
ttrueon II the act IT, that that principle does not apply
II the plaintiff In your Judgment has maintained that
the carriage constructed by him Is substantial i'm
provem'nt all previous constructions he II entitled
to recover; II LIE fails in this the subrtratum IL gone
" you believe the evidence susains these views. the
plaintiff u entitled To recover. IL you believe the de-
f,ndant, that this carriage l. improvement upon
those previously in then the patent must fail A.
summing that You arrive at tls conclusion that the
carriag, Of the plaintiff Il SUBSTANTIAL improvement
s previous constructions then the question H. whcth
- the carriage used by the defendant Is identical with
that Of the plaintiff II then II l. infringement. be
cause the defendant other person has right to-
Use " without his permission II the plaintiff carriage
Is substantial Improvement all previous then
the defendant must that his carriage l. different
from that Of the plaintiffs The question Of damages,
uming that you arrive at the confusion that the rights Of
the plaintiff have been infringcd IL of minor
deaon the great question being the right of the party
70 the machine. TIL, rule Of law when the infringement
j. made L. 10 give to- the plaintiff the actual loss
which il j. etabli-hej he has sustained. aud nothing
II il not for exemplary yindctive dam
II tho damages insufficient the H. provision
Of ia. Law authorizing the Court To- double triple them
III. plaintiff entitled to the profits all the hines
sold by the defendant II the " made
machines hsv, been sid by the defendant but there has
been scttem.n mad. To nine ten OF them which
rfofis upon them.
Tn. jury after short dclheration. brought in a v,r.
for IA. pl.nt III Of damages