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10. For an improvement in the Horizontal Double Acting Suction and Force Pump; Joel Farnam, Stillwater, Saratoga county, New York, December 14.
Claim. "I am aware that pumps have been made and patented with two pumps or channels placed at the side of the cylinder and extending from top to bottom, separated by a partition extending from end to end, and provided with valve seats, and cups, at top and bottom, or at bottom alone, and therefore I wish it to be understood, that I do not claim these modes of arrangement in this application.But what I do claim as my invention, and desire to secure by letters patent, is the arrangement of the trunk, as above described, on each side of a partition placed equidistant between the two ends of the cylinder, each one communicating with that end of the cylinder nearest which it is placed, and provided with cups and valves above and below the two trunks, substantially as herein set forth."
11. For an improvement in the Manner of Combining a Coking Oven for Coking Bituminous Coal, with Boilers for Generating Steam; Reuben Mc Millen, Middlebury, Summit county, Ohio, December 14.
Claim. "I do not claim to be the first that has combined an oven for coking with a boiler or boilers for generating steam, with the intention of economizing heat, but what I do claim as new in my apparatus is the method of applying heat in the coking of bituminous coal, and of coking the same by means of an oven, or ovens, consisting of two or more compartments, divided from each other by close partitions, and to which compartments the coal is supplied, and its combustion and coking regulated as set forth, the same being combined with the boiler, or boilers, as specified, and the whole being constructed and operating substantially in the manner described."
Decision in a suit, brought by John B. Emerson, in the Circuit Court of the United States, for the infringement of his patent for a Submerged Wheel with Spiral Propellers, by Hogg & Delamar. This was an action for an alleged infringement of a patent granted to the plaintiff for a submerged wheel, with spiral paddles, intended to propel vessels. The defendants conduct the Phoenix Foundry, in the city of New York, and had fitted various vessels with "Ericsson's propellers." The principal question in the cause was, whether these propellers, claimed to have been patented by Mr. Ericsson, were substantially the same as the wheel patented by the plaintiff.
The plaintiff, Mr. John B. Emerson, produced and read to the Jury a copy of his letters patent, dated 8th March, 1834. He proved, by Dr. Jones, that, at the time of filing his specification, he deposited in the Patent Office a drawing of the wheel, and also a model. The original specification, drawing, and model, were destroyed by the fire which consumed the Patent Office in December, 1836.
The counsel for the plaintiff then produced and offered to read a
certified copy of a drawing made by the plaintiff, and filed in the Patent office on the 28th February, 1844; this was objected to by the defendant's counsel, on the ground that the specification did not refer to any drawing, and that none had been annexed thereto-this objection was overruled, and the drawing was put in evidence.
The deposition of Dr. Jones, of Washington, was then read, by which it appeared that the plaintiff came to that city in March, 1844, and had with him the model of his improved wheel; that Dr. Jones was consulted by him, and then advised him that the drawing filed in February was imperfect, and an inaccurate delineation of the wheel; and that thereupon, Dr. Jones prepared a new drawing, with references, which was sworn to by Emerson, and filed on the 27th March, 1844. The counsel for the plaintiff then offered to put this corrected drawing in evidence. The counsel for the defendants objected, upon the ground that the Commissioner of Patents had no right to receive and file more than one drawing, and that by the filing of the drawing made by Emerson in February, the power conferred by the Act of 1837 had been exhausted. The Court overruled the objection, and the second drawing was put in evidence.
The counsel for the plaintiff then produced the model of a ship, with the propeller wheel, patented by the plaintiff, and then read the deposition of Charles Robinson, who deposed that he had made the said model in the year 1837, in New Orleans, and that it had been publicly exhibited for a year, in the Merchants' Exchange of that city, and from thence was taken to the plaintiff's ship yard.
The plaintiff's counsel then called William Serrell, who testified that he was a civil and mechanical engineer. Being shown models. of the plaintiff's wheel, and of Ericsson's propeller, he stated that he had examined them, and had been forced into the conclusion that they were essentially the same.
This witness was subjected to a very long and minute cross-examnination, which strongly exhibited his accurate and scientific acquaintance with the principles of practical mechanics. He stated, in substance, that the two machines were substantially the same in mechanical construction and action; that he could construct the plaintiff's wheel from his specification. He went into a detailed explanation of the specification, and said, that, taking it as a whole, he considered it sufficiently disclosed that which the inventor intended to construct.
The plaintiff's counsel also called James P. Allaire, who testified that he had been engaged for many years in making steam engines and other machinery; that "Ericsson's propeller" was identical in mechanical construction and effects with the plaintiff's wheel. He examined the specification, and testified that he could from it construct a wheel similar to the models produced in Court.
John C. Kiersted testified that he was a practical mechanic, and that, taking the specification, with either of the drawings filed by Emerson, he could construct a wheel similar to the models. He also proved that the defendants had made and applied "Ericsson's propellers" to a large number of vessels.
Stephen E. Glover testified that he was acquainted with Ericsson's propeller; that he had been interested in his patent, and that the charge for the use of his propeller was three dollars per ton for large vessels, and two dollars and fifty cents per ton for those of a smaller class.
The counsel for the defendants admitted that they had applied "Ericsson's propellers" to six vessels, each of 150 tons, and to one vessel of 340 tons.
The counsel for the defendants then called Dr. Dionysius Lardner, who testified that, before the date of the plaintiff's patent, he had seen propellers in England which had been patented by Mr. Perkins, and also by Mr. Smith. Models of them were produced, but the witness admitted that they differed substantially from the plaintiff's. He testified that the specification was vague and indefinite, and that he could not, from its directions, construct a wheel such as the plaintiff claims to have patented.
The deposition of Charles M. Keller was then read. He testified that he was a clerk in the Patent office; that he had officially examined the two patents of Emerson and Ericsson; that, in his opinion, they were different, and did not conflict; and that he had made a report to that effect to the Secretary of the Treasury.
James J. Mapes and William A. Cox testified that they were .consulting engineers, and that they had read the plaintiff's specification; that it was vague and indefinite, and that they could not, from its directions, construct the wheel claimed by the plaintiff. Upon crossexamination, these witnesses stated that they were not practical me
Joseph Belknap, a draughtsman in the employ of Dunham & Co.; James Cochran, second engineer of the steamer Princeton; and George Birkbeck, jun., a person in the employ of the defendants, stated that they could not, from the specification alone, have constructed the wheel; but that, with the aid of the corrected drawing made by Dr. Jones, they could have done so.
The Court charged the jury, that the patentee is bound to file a specification of his discovery, which shall apprize the public of his invention without ambiguity or uncertainty; that, if they shall find that the plaintiff originally filed drawings, so that all persons might have examined them, and that such drawings were similar to those produced in the trial, then they might come in aid of the specification. He directed the jury to view it as the whole specification, and gather from it what the plaintiff intended to claim. His Honor then examined the terms of the specification in detail, and reviewed the testimony of the witnesses. He instructed the jury, that they must construe the language as addressed to men skilled in this branch of artand if a competent mechanic could, from it, have constructed the wheel, it is sufficient. If such a mechanic could not, from the specification, have constructed the machine, then the plaintiff must fail, unless he can help it out by the drawings; that these must be shown to have been filed with his original application; that in this case, the Patent Office and its contents having been destroyed by fire, he is
compelled to supply the evidence in the best way he can. The Judge then reviewed the evidence as to the drawings filed in 1844. He further instructed the jury, that it had been contended that Emerson had abandoned his patent to the public by non-use; that this might arise either from positive abandonment, or might be implied from circumstances and if the jury should find that he had relinquished his right, then he could not maintain this action; that a patentee cannot lie by an unreasonable time, and allow his invention to go into use. The Judge then reviewed the evidence upon this point.
He further charged, that it did not appear to be denied, that if the plaintiff's patent was valid, that the defendants had infringed it; that the jury were bound, if they found in favor of the plaintiff, to give him a verdict for his actual damages; that in some cases the Court had instructed the jury, that they might, in addition, give damages to compensate the plaintiff for the expenses of the litigation-but that, in the present instance, he thought they ought not to find beyond the actual damages proved. He repeated, that the great question in the cause was, had the plaintiff established his right to the wheel commonly known as "Ericsson's propeller?"
The jury found a verdict for the plaintiff for 3,575 dollars and six cents, costs. It is stated that, of the jury, eight were practical me
Lond. Jour. of Arts & Sci.
Opinion of the Judges of the Circuit Court of the United States in relation to Sales made by Inventors previously to taking out Patent Rights.
It has heretofore been held in the Patent Office that, under the seventh section of the law passed on the 3d March, 1839, the sale of a newly invented article by the inventor, or with his consent, before he applied for a patent, would not invalidate it, excepting such sale had been made for more than two years prior to such application, or excepting on proof of the abandonment of such invention to the public. But by a letter just received from an intelligent gentleman in New York, it appears that, on the 13th instant, in the circuit Court of the United States, in the case of James Wilson vs. Austin Packard, it was in evidence that Wilson had sold a stove, the right to which was in controversy two months prior to his application for a patent therefor. On this testimony it was ruled by Judges Nelson and Betts that, if the inventor sells the article which he has invented in the usual way, or if he authorizes another to sell it, he abandons it to the public. That the sale, in the usual way, in a single instance, is a dedication of it to the public. That it is not a question whether the inventor intended to abandon it to the public, but merely what he has actually done. That the idea that a person can sell the thing invented without an abandonment to the public is an absurdity. That if the jury was satisfied that the plaintiff had thus sold, in one instance, before he applied for his patent, they should find for the defendant.
It is to be hoped that an appeal from this decision may be made to the Supreme Court, in order that it may be either confirmed or re
versed. What was the intention of those who framed the section of the law in question is well known to the writer of this article: in many instances men had labored long and exhausted their means in bringing a machine to perfection, and, by selling this individual instrument, they could procure money enough to enable them to obtain a patent; but, under the then existing laws, such sale amounted to a forfeiture of their rights. It was really supposed by the uninitiated. that the law had been changed in this particular, but it now appears that the attempt to do so was a failure, and that the Commissioner of Patents and others filling important stations in the Patent Office have not only misconstrued the law, but have afforded advice and information to inventors which have been destructive of their interests. Whatever may be the final result, should the question be carried up to the Supreme Court of the United States, the only safe course now to be followed by inventors, will be for them carefully to abstain from making any sale before completing their applications in the office.
Since the foregoing was written a further communication has been received from New York, written by a gentleman of the Bar, from which it appears that Judge Nelson charged the jury that the patent was equally avoided by the sale of the stove, on the part of the applicant, after he had completed his application, but prior to the issuing of the patent. It is not intended, in the present communication, to enter into any argument respecting the correctness of the instructions given to the jury by the Court. It frequently happens. that months and sometimes years elapse between the time of making the application and the completion of the grant. In the case of Wilson's patent, this had extended to full three years, and during this period a number of his stoves had been sold. It is not known to the writer that a legal decision adverse to the safety of so selling had been ever made in our courts. The instructions given by the Patent Office and the words of the Patent law, as well as many decisions under the act of 1793, and that now in force, have quieted the minds of inventors respecting their right to make sales after their applications were before the oflice; but now all is uncertainty, even on this point, and the validity of a large proportion of the existing patents put in jeopardy. T. P. J.
Specification of the Patent granted to THOMAS CLARK and CHARLES CLARK, of Wolverhampton, in the County of Stafford, for Glazing and Enamelling Cast Iron Hollow Ware, and other Metallic Substances.-Sealed May 25, 1839.
To all to whom these presents shall come, &c., &c. The nature of our said invention consists in so cleaning and preparing the surface of the inside of the cast iron surface to be enamelled, that when the proper enamelling material is placed upon it and exposed to a proper heat,