The daily union. [volume] (Washington [D.C.]) 1845-1857, 1853-12-08

rive copies OF tns wEKKLY, "
Ten copies OF Tho ~
sketch or H. H. GIlleps Argument In the
O,RirIiy and Morse Telegraph Case, before
the supreme Court, December ~ aud a7,
1862
4hs aa lcoScLuDEDl
Exhnt hlorsss reissued patents dated June 49, s45
are invalid because he has shown that the surrender
ed patents ers invalid for detective spec
aca,on or Otherwise confer jurisdiction The
Commissioner to make such reissu The surrendered
patents being cot out d'sprove any such jurisdiction,
.pyulid' or "inoperaive" nor that the error. any,
was occasionel by 'nadverency" OF .'msaka OF "ac-
ciden" or "wthout fraud or deceptive intent on hs
partn Nor 10 IL so stated in the reissued patents The
patents say the surrender ION account Of dclecive
specification" This does not show jurisdiction. while
the surrendered patents which are IN this CASE cannot
be shown, in the language OF the act, 70 "bs M
operative or invalid by reason OF deieciive of
insufficient description sIeci6cation." The iussdc-
ton does not attach until tho old patent y shown
10 be imperative invalid. The ursdiction being
statutory must be clearly made out II 10 not pre-
tended by Morse than his old patents invalid
operative But he alleges that the action Of the Cornmis.
s1oner is conclusive. Where discretion is involved
his is 20; but never where the jurisdiction il IN
controversy For certain purposes II has been held thai
the rsissusd patent is uHreviewabe T6is has never
been held upon the question OF jurisdiction But in this
case the rscsls in the patents TALL shor OF making
the senblance OF jurisdiction. There is more reason
why the OF the Commissioner be reviewed
in This than in OF the original Issue Certainty
this p0wef equally liable TO abuse the other have
never known surrender and reissue where il not
apparent that the real object something besides curing
defects in the specification. As far as know the patea-
TEE has uniformly enlarged the boundary OF his claims,
although there 10 no stronger reason for than for per.
hitting The purchaser OF farm TO enlarge the limits OF
his grant.
me- La Shaw Vs Cooper, Pet, 900, this court said
The evidence which would defeat bis application
for patent would at any subsequent period be fatal TO
his right The evidence he exhibits to the Department
Of State Is not only Ysrs but interested and the ques
i0ns OF fact left open 10 be coatovered by every
who shall think proper 10 contest the right under The
patent" In Grant Us Raymond, Pet, 2lS il said 9 II
he shows that the pa,entee has failed any OF these pre-
requisites which the authority TO issue patent is
made 10 depend, his defence is complete" This case
arose on reissoed patents aud covers The court
add The counsel Tor the plaintiff, in error have shown
very clearly that the question OF nadvcttec or mistake
ID judicial question, which cannot be decided by the
Secretary OF Slate Neither can he decide those judicial
questions which the validity OF the frs. patent de
pends. Yet he issues them without nqurng into them
Why may he not in like issue the second patent
also!"
The correct performance OF all those pIelimnaries on
which the validity Of the original patent depends
is always examinable in the court in which suit for
its violation shall be brought Why may not those
points which the validity of the amended patent de-
pends be examined before the ,ribunal' The
nghuness OF issuing the new patent is declared Tin the
chargel to depend on the faci that the "deec the
wthou, any fraud misconduct the part OF the pat.
enee The jury of inquire into the fact -
The new patent sustained because il stood this
This case is like the one before The as
signed will equally apply and will this court in
reviewing the whole action Of the Commissioned Ga the
question Of jntisdction this has often expressed
opinion. In Walker Us. Turner, . Wheaton Sal. ths
cou.t held that where the iurisdcon is strictly special
and limited il essential that ''ihe record show
he had acted upon the law had submitted 10 hi "
In Wilson vs Rosseau, How, 6i6, this court ny
of nj The he rasa pf
tension, said "l conclusive upon the question Of
jurisdiction TO act 10 particular case" There
merous cases to this point on The b,ef. will only cite
kessse OF Hickey ps. Stewart, How, 750, where a
former decision is approved and this rule established
"thai the jurisdiction OF any court exercising authority
over subject may be inquired into in every other court
when the proceedings relied on, and brought before
the latter by the party claiming the benefit OF such pro-
ceeding."
These cases settle the question tina, we msy examine
into the Commissioners jurisdiction Morse has failed Ia
show the facts that conferred it, any proof that be
possessed hut the contrary the only evidence upon
the point in the case shows concusively that he had
Not showing jurisdiction for these reissues
patents are invalid.
Ninth. Morss's patent Of 1910. secondly reissued
invalid, because the Comm had authority
accept second surrender and make second reissue.
These Reissues the fountain head OF ts alion
well the source OF nnumerablc frauds The presulnp
ton is, that the FIRST reissue cured all defects. If any
really existed There is no authority tor second reis
IN the statute, which alone confsrs jurisdiction
Sound policy would prevent all ressues bul the
ute provides Tor one il should be confined to that il
we'll settled rse OF Law, that when special statute
power has been exercised il form the basis OF
second exer,ion OF il. This held in Dcmmng ps
Smith, John Chy. r. 332 Deafeld ps Stale OF Iii.
nos, Paige 5a7. and 20 Wen. l92, proceeded upon
the same ground The 18th Peiersdor 644, lays down
The same rule Lucas %. Attorney General. IL Gill
and John 490. and In Pnalen State OF Maryland
u Gill and John IS, This doctrine expressly held in
Maryland The changes and expansions that these pa.
tents present must AWAKEN the attention of The court.
well the public, 10 the impocy, well the illegal
lty, OF these repeated reissues III right on this
point. the patent OF lsi0 secondly rcissued invalid
Tenth. Morses patent OF ls4o. as secondly reissued
is invalid because il s broader Than the invention origin
ally patented.
Is so proved beyond controversy by the record In his
eissued patent the first claim is for the exclusive ol
the pos OF magnetism, W hich not in the original
II was not then patented did he invent it. 1t was
then claim limited TO the application and arrangement OF
electromagnetic, which . combination. Ia his new
patent the second claim includes the employment OF
chnery, called register, which is made embrace
'fys and "sysraI spring" In the original IL for
combination of machinery described, which did in
cude them. la the patent the third claim is for a
onbinaon, which constitutes the whole telegraphc ap-
paratus This includes the "hy" and spra spring. and
breaking and closing the circn by metallic contact by
applying the hand These things included the
original In the old patent he claimed the ICON bnaon OF
electro magnets in circua OF conductors with
armalures OF magnets" In the new he claims the comb.
Of galvanic circuits with independ
ent batteries. &C. This il enlargement The Rflh
claim in the paten, is for the invention OF system
oi eigns consisting OF dots and lines There no such
claim in the original In the sixth, system OF signs
combined with machinery generally, is claimed while
IN the original for their ombnaiion with the ma
ch,oery then described, which useless This ia an
enlargement because II extends all machinery, whe,h
er described invented by Morse not II doubt