Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1878-11-29
The Opinion of The Judges in Full.
THE BILL IN EQUITY.

Brattleburo, in the county Of Windham and !
State of Vermont. He, the orator, Riley
Burdett, affirms that before February
%, 1863, he Twas the first inventor
and discoverer of a certain new and use
full invention, to wit, new and useful i'm
proyemont in reed organs :" that he made ap-
plication in writing to the Commissioner of
Patents for a patent therefor, and complied
with the precedent conditions, as provided by
law; that on the 23d day of February, 1863,
letters patent ante-dated August -, 1868,
were issued to him, the orator, his heirs and
assigns that said letters patent were issued,
sealed and signed, as provided by law, num-
bered S724l, and delivered to the orators
that thereupon, after the issuing of said let
ters patent as aforesaid, the orator put the
said invention into use. The orator prays
that these letters patent be made part of the
bill, and offirms that the orator has, ever
since the date of said letters patent, been,
and now is entitled to all the rights, interests
and privileges secured unto him in and to
said invention and discovery in the said let
ters patent that the said invention, so pat
ented to the orator, is Of very great utility, so
much so that reed organs are of little value
and do not find q ready sale without this in
vention: aud that the same is now extensive
" used that the orator would except for
the wrongful act of the defendants and 9TH
ers acting in concert with them, have made
large gains, profits and advantages from
the manufacture, use and sale of the said in
vention," and would, but for the wrongful
acts and doings of the defendants and others,
now be enabled to use said invention to
which he has exclusive right with profit and
advantage, but said defendants, by said
wrongful acts, have prevented him from so
doing" That the defendants, well knowing
the premises, and in order TO deprive the or
90, of fI,a ,,rix-i1aooe ND Y,roftc oforagotd
have "at Brattleboro, without license or per-
mission. ever since the 23d day of February,
1863, unlawfully and wrongfully made, or
caused to be made, put into reed organs, and
sold the same. unlawfully, each and every one
Of them containing said invention, and deriv-
ing grent gains and profits but TO what
amount is not known TO the orator, but the
orator prays that defendants may be required
to make a disclosure of all such gains and
profits"
The orator AYERS that the defendants,
though often requested to desist from such
unlawful use, and to pay the orator such
gains and profits as they have actually made,
refuse so to do, by means whereof the orator
has been deprived of such gains and profits.
Tho orator prays that defendants by decree
| of the court may be compelled to account for
and pay over ali such gains and profits, and
/ all damages sustained thereby; that the court
| will cause the same to be assessed, and in its
discretion increase the sum as provided by
law. That the defendants, their servants,
| agents, &c, may be perpetually restrained
from directly or indirectly making, using or
vending any organs containing said inven-
| tion, or infringing the same in any way and
| that the defendants make full, true and per-
feet answers to this complaint
This bill was sworn to Dec. 80, 1871, and
soon after filed
TIE DEFENDANTS ANSWER.
On the 22d day of March, 1872, the defend
ants filed joint answer, the substance of
which is as follows:
l. The hedefendants admit, upon information
and belief, the granting of letters patent, as set
forth in the orators bill, but have no knowl-
edge or information that the same were duly
applied for, and deny that the orator is the
inventor of the said improvement, or has any
exclusive right thereto
. The defendants are informed and be-
lieve that the public generally have not ac-
quiesced in the exclusive right of the orator
to his alleged invention, and that the validity
of his right thereto has not been established
in any court since the issue of the patent.
3. The defendants allege that they have
never infringed upon said letters patent, and
are not now doing so but that on the con-
trary all instruments made, used or sold by
them, are sold and used by them under letters
patent granted and issued to Jacob Estey j
Co. (of which firm Jacob Estey, the orator
and S. NJ. Waite were co-partners) ON the 9Th
of January 1866, and numbered 1894, fol
an improvement in reed musical instruments
invented by the orator-the respondent, Jacot
Estey, the orator, and S. NJ. Waite, being, as
co-partners, the Joint owners of such letter.
patent, and each of said partners having al
equal joint interest therein, and the sale
Jacob Estey having given defendants verba
license to make and use the same for a val
uable consideration and said letters patent
are made a part of this answer. The de
PENDANTS further aver that the orators let
tiers patent are void in every part, becaus,
that ''for the purpose of deceiving the pub
lie, the the orators description and specifca
tion filed in the patent office, were made t.
contain less than the whole truth relative t.
his invention. or more than is necessary t
produce the desired effect"
L. The defendants are advised, and there
fore aver, that each and every part of the
orators letters patent are void, because M
''surreptitiously, fraudulently and unjustl,
obtained the same for that which was il
fact invented by him and assigned to the sait
jacob Estey & Co.. and for which letters pat
ent were duly issued to said Jacob Estey
| 20. rs utINlHDtAOIo hhu AOA Aho
, which was old, and belonged TO the public
the complainant well knowing the premises,
etc.
3. The defendants affirm that each and ev
cry part of the orators invention is void, be
: cause the alleged invention of the orator, a
described, had been patented by said JacOl
Estey & Co., on the 9th of January, 1866
and assigned as above stated and by j. A
Rollins June 3, 1856; and by several othe
persons, between September, 1861, and Jan
uary, 1867.
6. The letters patent are also void in a
1 their parts because said invention had bee
described in a book published by f. j. Hop
kins in London, England, prior to the orator
( alleged invention.
Z. The letters patent are also void in a
, their parts because the orator was not tn
original and first inventor or discoverer c
any material OF substantial part thereof, bu
, the same had been previously invented b
and known 10 Jacob Estey, Julius j. Estey
! Levi K Fuller, Josiah d. Whitney, Henry X
,, White, Asa S. Field, of Brattleboro, and se'
eral others and also because said inyentio
; and all its material and substantial part'
o were, before the alleged invention of tn
orator contained and used in the "Panopticon
y and Glasgow" organs, so-oalled, in the "Alel
I ander" organs, and in various others.
; s. The letters patent are also void, b'
cause the alleged invention, with the know
edge, acquiesence, and consent of the oratc
9 had been in use and on sale in this countI
q for more than two years before he made al
e plication for letters patent therefor, and thl
y the same had been abandoned by him to II
y public.
g 8. The defendants deny all manner of ul
lawful combination by the bill charged "a
g which matters and things they are ready an
= willing to aver, maintain and prove az Il
g court shall direct and they humbly pray
II be hence dismissed, with. their reasonah
e costs and charges in this behalf most wrol
fully sustained"
- This answer was severally signed and swoi
: to by the defendants, and filed as abo'
stated.