The republic. [volume] (Washington [D.C.]) 1849-1853, 1853-02-25

of the extensions recommended by the judicial
Committee of the Privy Council are made to as
signees (Wehster's Patent Cases, 1875, note
In this case moreover the petitioners deny that
Hayward has parted with his right to an exsen
sion. Alter an examination OF the exnlDlts re-
ferred TO, and constituting them ACCORDING 70 .ue
principles laid down in Wilson Us Rousseau, II
seems to me that the conveyances from Hayward
do not sale OF hls entire interest IN the
patent and that he is not esopped by any OF the
other instruments put INTO the case. Inc miro
duction of the word renewal may be readily ex-
planned upon the supposition that the parties
not advised for whose benefit the patent would be
extended, and made provision accordingly. The
intention to part with the contingent right TO a
renewal should, according to the opinion of the
court in the mentioned, be more decidedly
and distinctly expressed. As this issue becomes
of no importance, however, in consequence of the
views expressed in the preceding paragraph, !
shall discuss it no further
The counsel for the opponents next argued at
great length that the original patent void for
want OF both novelty and utility, and also because
Hayward had sold the articles manufactured under
his invention for more than two years previous TO
the date OF his application, and had in fact aban
doned 1t. Ii was to these points that the mass OF
testimony and exhibits filed in the case was adj
dressed. Although the conclusions to which 4
have arrived upon other parts of it might have
warranted me in dispensing with examination
Of this yet far the brief time allowed for the
purpose, and other pressing employments have
permitted, have looked into it. Nothing will be
gained by minute discussion of it here; it will
answer every purpose to briefly record the views
have adopted.
great deal of time was consumed upon the
question how far Mr.. Day, one of the opponents,
was estopped from setting up this objection by
rious recoveries upon this patent against him and
his agents, both at law and in equity If he had
lnterposed some objection TO the proceeding aris-
ing out of contract between himself and the pc
htioners, he might be estopped by the record of q
suit IN which the contract had been adjudicated
upon. Nothing of that kind is pretended and it
thcd
trine of estoppei can be made to apply. Hayward
was party to any of the records; in fact, he
witness in some of the suits. There were other
opponents TO the extension who would not be af
fected by these proceedings. Had they all, how
ever, been between Hayward and Day alone and
had the latter been the sole opponent, it might
well be questioned whether he should not be ad
mited to contest the application grounds OF
public policy.
These recoveries were also claimed to be, like
undisturbed enjoyment, evidence of the right of
the patentee. Had they been founded on this pa
tent alone. they might have been entitled to a
good deal of weight. But, on inspecting the re-
cords produced, they seem, every one of them,
to have counted upon others as well as this. The
validity OF it does not appear 10 have been the
subject of any separate issue, or of any distinct
adjudication In all these suits the defendants
may have seen that the expense of trying the
question upon this alone would be worse than
thrown away, the plaintiff could recover upon
the other patents embraced They would have TO
bear the cost OF the investigation and the verdict
would rot prevent this patent being set up anew.
The victory, therefore, would prove worse than
barren / cannot, the whole, attribute much
weight to these recoveries. The question must be
decided upon other grounds
In order that the Office might have the most sat
istactory knowledge and act intellgently on the
subject, the examiner who has this case in charge
Dr. Gale, has instituted careful investigation in
the laboratory, and has reported the result From
this 1t appears that chemical affinity exists be
tween sulphur and rubber in nearly the proper
tons indicated in this patent; as consequence
and proof of which, the combination, when effect
ed Is no longer soluble in the essential oils or spi
rits of turpentine, which IL commonly sused in
such operations To effect this combination how
ever, it is not enough that the two substances be
mechanically blended according to Hayward's
process. If nothing is done, and they are
directly submitted to the action of the usual sol
vent, they will yield to its power. But if they
are subjected to high heat, as in the process EN-
ployed by Goodyear under his vulcanising pa
tent, the chemical union Is produced, and they
no longer attacked by it. The same result
is brought about by time, was shown by
subjecting to spirits of turpentine goods which
were manufactured under Hayward's process
several years since In itself there can be no
doubt that the Processis valuable the sulphur ope-
rating with peculiar advantage as a DRYER when
under mechanical union only with the rubber
And these experiments show it to be still more
valuable as part of process resulting in one of
the BEST if not the best, combination of India rub.
Der that can be produced
A likeinquiry was made by the same officer into
the history ofrubber and of its manufacture as well
as it could be ascertained from the records of the
office, and the publications and other sources of in
formation at its command, independent of the tes-
timoay filed in the case. From bis report il a n |
pearz, go far the thus obtained can be
relied upon, that this ombinatiOn of sulphur and
rubber for the purposes of manufacture was not |
known till Hayward discovered it. Taking the |
report OF the examiner for guide, therefore the
process embraced in this patent was patentabie |
when 1t was granted, as far as novelty and utility
are concerned.
This conclusion is by no means overturned by
the testimony, with such examination as have been
able to give 1t. 1t may be readily conceived that
without the improvement effected by the lapse of
time or the operation Of heat, the value of Hay- |
wards invention would not be duly appreciated; |
ana mat IL would be superseded in a measure by |
Goodyear's vulcanisIng process AS natural con.
sequence, 1t may have been underrated and spoken
oil IN dlsParaging terms. All this does not deter
mine the question After looking through the sub
Ject, have no doubt, upon the evidence, that the
discovery Is valuable especially as an mart
of an improved process |
Upon the point of novelty, the evidence has
taken WIDE range. Ii has not been necessary for
me to examine it as critically if the case had
turned upon 1t; indeed, 1t hardly practica bile
One thing, however, is plain. Until Hayward
published his process, and obtained his patent the
manufacture OF India rubber goods was compare.
lively failure. Numerous companies embarked
in it, and successfully abandoned ii. We nowhere
lind it prosecuted successfully. Without canvass
ing the testimony this point at length, it is OBJ
vioUs that whatever has been done previously was
mere matter of experiment merchantable
article could not be found to supply the market;
had there been, il would have poured into it in
abundanc a&as was eVinced at last Such attempts
are not allowed to defeat patent; to do that, it
must be shown that they effectua for practical
purposes Upon any other ground, where mum
Der are simultaneously employed in making dis
coVery, patent must be denied to the person who
succeeds unless he show that he made the first
experiment.
The same view should be taken of the evidence
respecting the sales made by Hayward before TAX
ing out this patent They are all to be regarded
In the light of unsuccessful experiments. He had
not, it is plain discovered the precise process that
atterward accomplished the desired end. think
they were not such sales of the invention to the
public as to preclude patent.
Inc same considerations put the question of aban-
comment at rest. As to that it may be further OBJ.
served, that grave doubts have been expressed in
highly respectable quarters whether the decision
of that question Is within the jurisdiction of this
Othce 1t 10 not expressly delegated by any statute
Another objection interposed is, that HAYWARD
has not brought bis invention into public use; that
he has, the contrary, put it out of his power bv
selling it TO Goodyear The last structure il of yerv
little weight. Selling his invention might be the
best means to get the article into market And
though it should be superseded by better man
1facture, it does by no means follow that the own
ers come within the spirit of the act On this subject
ha tnar Hav, I'd