The Portland daily press., 1882-02-01
TINE oUT-uNDER HAY RACK.
opinion of an oxford County Lawyer.

| Hon. Enoch Foster, of Bethel, writes to the
| Oxfor Democrat the following letter concern
ing the cut-under hay rack:
Very many farmers, not only in this but in
| other States, are using what's generally termed
| the "cut-under" hay rack-differing only from
the ordinary rack by having portions cut out
/ on each side to facilitate shorter turning. On
| these racks it is claimed there is a patent,
| granted in 1866. and individuals are travelling
| over the State demanding a royalty of $500
| from every farmer who has one of these racks
| in his possession. In this, as we'll as other sec
| tions of our county and State, the farmers are
being visited, and the demand made; and, in
/ asmuch as it has become matter of general
interest and inquiry, I trust Imay be pardoned
for any seeming impropriety in attempting to
answer some of the many inquiries in this pub
lie manner.
Admitting that a patent was granted, as
| claimed, in 1866, what then? Is this conclu-
sive against the farmers and is this fact sutfic-
lent of itself to prove that they are infringing
upon any patent? Not by any means. Many
| patents are void for the want of novelty in the
| alleged invention. A patent for an alleged in
vention is not conclusive that it is a new and
useful invention; and it may be, and fre-
| quently is, contested before United States
| court on this very ground and that is the tri-
bunal which tests the validity OF patent rights,
| whenever the question arises. and it must be
| shown that the so-called invention is new" as
| well as suseful"-that it was not "known or
| used by others in this country before
his inyention'-and that it was mot in public
use or on sale more than two years prior to
the application for the patent. The statutes of
the United States upon this question are clear
and read as follows:
"SEcT. 1886. Any person who has invented or
discovered any new and useful art machine manu-,
facture or composition of matter, or any new and
useful improvement thereof, not known or used by
others in this country, and not patented or de-
scrbed in any printed publication in this any for
eign country, before his invention or discovery
thereof, and not in public use or on SAFE. Ior more
same is proved to have been abandoned, may, upon
payment of the fees required by law. and other due
proceedings had, obtain patent therefor.
This is the law under which the paten was
granted in 1866 to Mr. bennett, the alleged
inventor of the hay rack in question. He may
very easily have satisfied the Patent Office De-
partment by ex parte afidavits that his claim
for invention was for something "new and use
ful,'- but when the test comes in the Circuit
Court under the very law above cited, Mr..
bennett, or, as hS seems to prefer more awe
inspiring name, the National Patent Hay
Rack Co." is liable to find that the SO called
"invention" was not ssnew,'-or that it was
sknown or used by others in this country be-
fore his invention-or was s'in public use more
than two years prior to his application; -
either one of which propositions being .estab-
lished IN Court, the patent becomes void for
want of novelty.
Chief Justice Gray in Nash as. Lul, 102
Mass, 62 begins an opinion thus:-" Letters
patent of the United State can be lawfully
granted only for new and useful inventions;
and are but prinaa facie evidence of the novel
ty and utility of the invention described
Now there are parties in this town who made
and used this kind of rack, indentical with
that upon which the patent is claimed, long
before 1866, several as long ago IS 1854, and |
am informed by one man that he said many
others made and used them in Kennebec conn
ty more than twenty years ago-thirteen
years prior to this patent. The same may be
true of other sections of the State. How can
it be proved, then, in Conrt, that this patent
was a new invention, and was "not known
or used by others in this country before the
alleged patent in 1866?
Mr.. bennett is lawyer, and, with these
facts existing, ought not and, of course, will
not unjustly demand or receive the sum of
$500 royalty on void patent, or because it is
a sum placed at SO small a figure that many
would pay it rather than 60 to the expense of
contesting the claim
Benjamin Vaughn Abbott, gentleman of
high legal attainments, and of more than ma
tional reputation, in an article recently pub
lished, uses the following language, and which
at this time, to a large number of readers may
prove as easy and interesting reading as to the
legal profession;-
'AIany illustrations noticed in recent books of
reports, of the expense and loss sustained by in
yentors through obtaining patents for trivial de-
vises They know, theoretically, that a patent, to
De sustained IN bno courts, must an lnVeublOu
which is new and usefu but fail practically to ap
ply the test. Evidently the existing system tends
TO betray an over sangune inventor. solicitor of
patents will cheerfully take fee and undertake to
obtain letters. The patent office will accept further
fees; will make an examination for novelty, which
is good as far as it goes, and in some measure
protection against launching an Improbable
venture; and will grant patent. lawyer will
readily spend few hundred dollars in organizing
company, and will execute his task skillfuly; he
has no responsibility for the mercantile value of
the project Two or three thousand dollars more
are easily expended in facilities for manufacture in
starting sales room, and in advertising. And yet
after all this expenditure, involving the inventors
time, the moment the patent is contested by an in
fringer the courts may pronounce it void for want
of novelty. Notice recent examples. The Perfec-
ton Window Cleaner was in substance rubber
mounted on long handle convenient for reaching
up to clean lofty windows and the like the pecul-
iarty of The device consisting in the way in which
cushion for rubbing was adjusted SO that it could
be pressed against the surface to be cleaned. The
court said there was nothing new in this; the imple-
ment was only mop or scrubbing brush made of
India-rubber. Improved Kindling Wood was pa
tented, consisting of wood tied in small bundles,
each containing lump OF combustible matter
which would take hre from common match: Inc
court said that there no more invention in this
than there would be in selling sherry-cobbler
glass with straw, or can of food with fork. As
at first devised, the Fare Box used in city omni-
buses and street inefficient for want of an
opportunity to the driver to whether the proper
fare had been put in. Some one obtained patent
for the Improvement of fitting second window,
and reflector, in such manner that the driver
might, either by day or night, see the coin which
box became success. But the court said that
there invention in inserting an additional
window, or in putting a reflector near lamp. To
relieve drivers from the necessity of buying new
whip because the tip end had become frayed or
broken while the stock remained good, an inventor
contrived whip Tips with sockets, SO that worn
one might be unscrewedand new screwed on
in its place. The court said that he might sRstain
an exclusive right to his screw, but that the i'm
portant feature of the device-making independent
tips to be substituted for worn ones-was not new;
this is the principle upon which fishing rods in
sections have been made for many years. The
rubber tip pencil has had an extensive sale; but
when the patent for it contested the court said
that there invention; the device was nothing
but "a piece Of rubber with hole in it. Not many
years ago patent was questioned for an article
called .Comminuted Glue.s The device consisted
in breaking glue into small particles of uniform
size to facilitate dissolvng it for use The court
said that nothing here invented other than
grinding glue fine, and grinding cannot be called
new ngeation. A score of such decisions migha
easily be gathered from the court reports of the
past two years. showing very clearly that invenotrs
need to be their guard against soliciting patents
for trivialities.'
Comment is unnecessary; every one may
draw his own conclusions.
ENocH FOSTER.
he1 Ton % 1880