The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-10-09

nA AZ the latter patent IS Tor precisely the same
Invention, hgt, or discovery that described Id
the first, the objection that it claims more, is mis
take OF fact the last patent differs from the first
only IN stating more clearly and definitely the real
principles OF the invention, so that those who wish
to pirate 1t may not be allowed to escape With i'm.
puDity through the imperieetion o. the language
used in the first, then has arisen one of the cases
Tor which 1t was the intention Of the ~ Of Congress
Law. f~''''
) 1t is claimed, also, that tie re issued patent
Is void, beeause the things elaGod in the original
were IN public use, in the interval between the issue
Oh the original and the reissue. and were therefore
dedicated 10 the puolic, and cannot be resumed BY
the Reissue.
This objection is founded on an assumption Of law,
which cannot be conceded 1t assumes that the
publication Of s. discovery or invention by defec-
tive patent, is dedication crabandonment or it 20
the public. II such DO the case, the permission
gwen by the act to tissue patent, on account Of
defects is Of little value, and tc inventors.
The most slilful and Ingenious Inventor is seldom
able to draw up a valid specification Of bis inven-
ton, and not many lawyers have suiG sient expe-
rience and knowledge, both scientific and legal, TO
do it for him The original patents for some of the
most valuable modern inventions now known have
been afterwards discovered to be cient, and
the patents have been renewed, with specifications
setting forth, not different or improved machine
but the same machine or invention, and corrected
statement of what is the true nature and extent of
the patentees claim. Every specification or claim
which correctly sets forth the true nature and fall
than the one which fails to dc it. To decide that
such difference would vitiate the last patent, or
that the original mistake had amounted to a dedi-
cation to the public Of everything not correctly
claimed in the specification, would leave the rights
OF inventors In most precarious situation and the
right given to amend their patents mere illusion
The original patent of Woodwork, issued in 1923,
was most palpaby defective and worthless 1t was
renewed in 1916, and the true nature and extent Of
his claim correctly set forth. The Court decided
that the renewed patent was valid, because it was
for the same inventions and that the question to be
decided was not whether the last patent differed
from the first in the extent of the claim or state
ment of the distinctive principle of the invention,
provided it claimed nothing more than the same
the claim, 50 as to make the patent q valid grant
of the real invention to its full and true extent,
what the law intended to confer on the inventor.
The mistake Of claiming too little, in the original
patent, has an equal claim to correction with that
Of claiming too much.
The case lately decided at Philadelphia, about
the machines for breaking and screening coal, has
no application to the present
ferent machine from that described and claimed in
the original; and the machine claimed and des-
cbed in tho last patent had been abandoned to the
public tor many years But in this case the art Of
tain qualities not before known, is all that is
claimed in the renewed patent: and the same art or
discovery was described in the original. Nincuded
account doubted whether correctly or not is i'm.
materially; separate renewal was q just and proper
precaution, and one which the complainant had
covenanted with the defendant to obtain.
The amendments in the last, by setting forth the
true extent, and distinctive principle of the inyen
ton, was q right vested in the patentee and
wrong to no one, and more especially to the defen
dant in this case
In examining questions of identity or infringe
ment, we should first ascertain wherein consists the
substantial popularity which distinguishes the art
or invention patented from all others. Whoever
or principle, without license Of the patentee, appro
PIRATES the invention and nfringes the patent, if
its specification be correctly drawn.
Goodyear's invention or discovery did not con.
eist merely in the use of sulphur or lead, both
or the application of heat to rubber in connection
with both, either, or neither Of them; all these
things had been done before, perhaps, to little
purpose.
The essential and distinctive popularity of his
discovery is that by using certain degree of heat
IN the treatment OF rubber in connection with those
materials, it can be made to assume new and valua
Die qualities, distinguishing il from any other sub
this material, or imparts its peculiar qualities to
manufactured goods, by taking advantage Of the
peculiar discovery of Goodyear, pirates it, whether
the patent be sufficient not If the specification
OF the original patent was SO i'll drawn as to permit
this to be done with impunity if it fully disclosed
the art, or invention, but lett the patent open t,
evasion or invasion, the property OF the inventor
may be compared to field with an insufficient en-
closure. Trespassers may take advantage Of it, and
defend themselves on the ground that the fence was
not legal and suffaient, according to the statute
but, though they may escape punishment by such
the field
1t is no justification Of the infringement of re-
newed PATENT that the infringer had stolen and
used the invention with impunity, before the patent
was amended. The inventor, it is true, may pos
sibly not be able to recover damages for such use
antecedent to the date Of the renewed patent; but
such previous use, though made with impunty,
ri IN he iDya To ipnm
rity for its Infringement. The seventh section of
the act of Sd March, 1889, ch SO, protects those
who " have purchased or constructed newly in
vented machine, &c, prior to the application of
the inventor. or discoverer, for patent" but con-
fers no such privilege on those who may have seized
upon an invention or discovery disclosed in patent
whose specification may happen TO be defective or
Insufficient On the contrary, the thirteenth sec.
ton Of the act of July, 1886, which regulates the
re.ssued patents, declares ''that the patent re-
Issued. together with the corrected description and
specification, shall have the same effect and opera
ton in law as though the same had been originally
filed in such corrected form, before the issuing out
Of the original patent"
VI. After what has been said, but few words will
be necessary, on the question OF infringement
The answer does not contain direct denial of the
infringement Of both Of the patents The assertion
that he "has not used the compound in the proper
ton described in the patents but has used other and
better compound" is evidently evasion
rather admission that he has been attempt
ne W ef"No Vhie aetuAhy AhAikhS euo PapeAee,
in disregard both of the law and his solemn con.
tract. The allegation that he has purchased ether
patents may be true, but it is immaterial. If the
other patents Showed better right to the invcn
items claimed by Goodyesrs patents, they were not
given in evidence; if they for mere variations
or improvements of the discovery patented by Good
year, they were wholly irrelevant
There is another feature in the defence set up in this
answer which the Court compelledto notice. 1t
claims right to exercise all the privileges granted
by the contract while it rcpudiates its obligations
And, moreover, il seems not only to claim to
ersse license granted for using the patents in the
manufacture of shirred goods, without paying tbs
the patents with punity srcgards all other articles
the various covenants, amendments, and additions,
signed and sealed by these parties, constitute in
fact but one agreement. Though dated on different
days, they are but consecutive portions Of long
negotiation, never concluded till after the last in
strument was signed The covenant not to use the