The decree of the circuit court is reversed, with costs in this court to the Excelsior Manufacturing Company on both appeals, and the case is remanded to the circuit court, with direction to dismiss the bill, with costs. 1. PARTICULAR PATENTS. [Supreme Court of the United States.] ZANE ET AL. v. SOFFE. Decided January 21, 1884. 27 O. G., 737. Letters patent granted to Nathaniel Jenkins, June 22, 1952, construed. 2. CONSTRUCTION OF PATENTS. In view of the fact that certain mechanical equivalents of a device claimed were previously used, the patent was construed to cover only the specific device mentioned in the claim. APPEAL from the circuit court of the United States for the southeru district of New York. Mr. Thos. Wm. Clarke for the appellants. Mr. Henry P. Wells for the appellee. Mr. Justice BRADLEY delivered the opinion of the court: This writ was brought by Zane and Roach, as assignees of one Nathaniel Jenkins, against the defendant Soffe, for infringing (as charged) certain letters patent granted to said Jenkins, June 22, 1865, for an im provement in self-acting cocks or faucets. The general features of the invention patented so far as material to be considered may be described as follows: The valve is situated in a chamber below the valve seat, where the water is introduced by the induction-pipe, and is kept in place against the valve-seat by a spiral spring underneath resting on the bottom of the chamber. On its upper side the valve is connected by a swivel with a stem which projects upward through the top of the faucet, where it is provided with a handle, by which it may be turned. A screw is formed on the upper part of the stem, by which, when the stem is turned by the hand, it is forced downward and pushes the valve from its seat, thus permitting the water to flow out of the cock. On letting the handle go the spiral spring below the valve, aided by the pressure of the water, forces the valve back to its seat, and the flow of water is stopped. In the specification the stem is called a "screw-follower." The patent has two claims, only the first of which is claimed to be infringed by the defendant, and this is in the following words, to wit: What I claim as new, and desire to secure by letters patent, is 1. The screw-follower H in combination with the valve of a self-closing faucet, substantially as set forth and for the purpose described. 9373 PAT-8 The defendant answered the bill, denying that Jenkins was the first inventor of the thing patented, denying infringement, and setting up a patent granted to defend..nt himself on the 10th of May, 1874, under and according to which the faucets manufactured by him were made, and which he alleges are no infringemnt of the Jenkins patent. The answer specifically refers to only one patent as anticipating the sup posed invention of Jenkins-namely, a patent granted to one Frederick H. Bartholomew, in August, 1846-in which (as alleged) all the essential elements of the faucet patented to Jenkins are described and exhibited. The answer, however, contains the following general aver ment: This defendant, further auswering, denies that the patent granted said Nathaniel Jenkins is valid, and alleges that prior to the invention described in said patent a screw and spring, worked in opposition to each other, had been used to open and close faucets and hydrants, in which faucets and hydrants the screw did all the work of opening the faucets and hydrants, and the spring did all or most of the work of closing the valve of the faucets and hydrants; that faucets and hydrants operated in the above manner had been in public and general use and for sale in the cities of New York and Brooklyn and in various other places long prior to and at least fifteen years before the date of the alleged invention of Nathaniel Jenkins; and defendant is advised and believes that by reason of said prior public use and sale the patent granted to said Jenkins is invalid. This answer was not excepted to, and evidence was given by the defendant, without objection, showing that a large number of faucets and hydrants were made by Bartholomew and publicly used in the city of New York several years before the issuing of the patent sued on, differing in some respects from the specific device described in Bartholomew's patent referred to in the answer, but relied on as anticipating the alleged invention of Jenkins, or, at least, as containing all the essential elements of the faucets manufactured by the defendant. The court below held that this evidence was competent to show the state of the art at the time Jenkins's patent was granted, and might be used for the purpose of limiting its construction, but not for the purpose of showing such a previous knowledge and use of the invention as would affect the validity of the patent. But since the decision of this case in the circuit. court we have held, in Loom Company v. Higgins (105 U. S., 595), that under a general denial of the patentee's priority of invention, evidence of prior knowledge and use, taken without objection, is competent at the final hearing on the question of the validity of the patent; and since in the present case there was neither an exception to the answer nor any objection to the evidence, except as to a single fancet marked "De. fendant's Exhibit No. 2" (which may be laid out of the case), we think that the remaining evidence of prior knowledge and use might well have been considered by the court on the question of priority as affecting the validity of the patent. Viewing the evidence, however, with the court below only as demonstrative of the state of the art, and therefore competent to limit the construction of the patent to the precise form of parts and mechanism described and claimed therein, it was amply suffi cient to sustain the decree. Self-closing cocks and faucets were no new thing in June, 1865, when the patent of Jenkins was issued. Bartholomew had manufactured and sold them for a period of ten or fifteen years before that time. As early as 1854 he had made and sold faucets in which the valve was kept on its seat by the pressure of a spiral spring, and when a flow of water was desired the valve was lifted from its seat against the force of the spring by means of a stem operated by a collar or cross-piece moving around on a fixed circular inclined plane or cam, having the same effect as a screw. When the handle or thumb-piece attached to the collar was liberated or let go, the spiral spring would force the valve back to its seat and the flow of water would be stopped. The improvement of Jenkins (or what was patented to him as such), as we have seen, was the employment of a screw on the upper part of the valve-stem, in lieu of the crcular cam or inclined plane, to force the valve from its seat. This valve-stem, called by him the "screw-follower," forced the valve not only against the pressure of the spring, but against that of the water, both of which were exerted in carrying the valve back to its seat as soon as the force operating upon the screw was removed. Now, in view of the fact that an inclined plane or cam was previously used by Bartholomew as a means of producing the same result upon the valve-stem as that produced by the screw made upon it by Jenkins, it is clear that the claim of the latter in his patent of "the screw-follower H in combination with the valve of a self-closing faucet, substantially as set forth," must be limited to the precise form of mechanism designated. It must be limited to a screw-follower, and cannot be construed to embrace a cam arrangement for moving the valve. Whether it is also to be limited to a valve which moves to its seat concurrently with and not against the pressure of the water it is not necessary to determine. The limitation to the screw is sufficient to determine this case. In the faucet manufactured by the defendant the screw is not used, but the old cam device is employed for lifting the valve from its seat., It is true that the cam, instead of being placed at the top of the stem, on the outside of the faucet, as was done by Bartholomew, is placed at its lower extremity by the valve inside of the fancet, but this does not change the principle of its construction or operation. We concur with the court below in holding that, construed as the patent of Jenkins must be in view of the state of the art at the time of its issue, the defendant has not infringed it, and the bill of complaint was properly dismissed. The decree of the circuit court dismissing the bill is therefore affirmed. [Supreme Court of the District of Columbia:} IN RE HATCHMAN. 1. FORMER DECISION AFFIRMED. 26 O. G., 738. Decision of the Commissioner of Patents in ex parte Hatchman (reported in 25 O. G., 979) affirmed. 2. ATTORNEY-PARTY BOUND BY ACTS OF HIS ATTORNEY. In legal effect the action of an applicant or his attorney is the same. 3. REISSUE-INADVERTENCE, Accident, or MISTAKE. Where one of the claims in an original application was rejected upon reference to certain patents, and the applicant, by his attorney, orders the same to be erased, and thus obtains and accepts a patent for the residue of his claims, there has been no inadvertence, accident, or mistake within the meaning of the patent law, and the patentee is not entitled to a reissue covering the claim before erased. Application of Robert Hatchman for reissue of Letters Patent No. 283,602. Mr. Justice MACARTHUR delivered the opinion of the court: This is an appeal from the decision of the Commissioner of Patents. In his application for a patent, Hatchman made several claims, all of which were allowed except one, and that was rejected on the ground that it was too broad and was met by previous inventions for which patents had issued. Upon such examination said claim was erased and withdrawn by order of his attorney, and he obtained and accepted the original patent for the other claims, dated August 21, 1883. The appli cation for reissue was made October 5, 1883, for the same claim which had been examined in granting the original patent and rejected with his acquiescence or that of his attorney, which is the same thing in legal effect. Upon this state of the record the reissue was denied on the ground that the claim had been canceled by the duly authorized attorney of the applicant, and that, having been canceled and the patent issued without it, he is not entitled to a reissue covering that identical claim. The case is here on appeal from that decision. The sole question presented is whether, under these circumstances, Hatchman is entitled to a reissue to protect the disallowed claim on the ground that the same had been rejected by inadvertence, accident, and mistake, and without any fraudulent or deceptive intention. We are of opinion that on an application for a patent, when one of the claims presented is covered by previous inventions and the patents therefor are referred to, and the Examiner upon such reference decides against such claim, and the applicant thereupon, by his attorney, orders the same to be erased and withdrawn, and thus obtains and accepts a patent for the residue of his claims, he is not entitled to a reissued patent containing the identical claim which he has so erased and withdrawn. We also hold that under such circumstances no error has arisen by inadvertence, accident, or mistake within the meaning of the patent law which would authorize the Commissioner to entertain the application for a reissue. We therefore think that the decision appealed from ought to be affirmed and the appeal dismissed. Let the proper order be prepared. [United States Circuit Court-Southern District of New York.j 1. PARTICULAR PATENTS. ADAMS v. HOWARD ET AL. Decided February 6, 1884. 26 O. G., 825. Patents Nos. 47,551 and 55,991, granted, respectively, May 2 and October 24, 1865, to John H. Irwin, construed. 2. INVENTION-SIMPLE CHANGE REMEDYING DEFECTS SUFFICIENT. A simple change, which others failed to discover, and which remedied a grave defect: Held, to constitute a patentable difference. 3. PRIOR USE-PRIOR APPLICATION ALONE NOT SUFFICIENT. A prior application for a patent alone, without evidence to show that such a lantern as is described therein was ever constructed, is not sufficient to defeat a patent. 4. PARTIES TO SUIT-NO OBJECTION BEING TAKEN TO NON-JOINDER, DECREE GIVEN. A complainant being owner of an undivided third interest in a license, and no objection having been taken by demurrer or the answer to the non-joinder of the other two owners of the license, such non-joinder cannot be insisted on to defeat a decree. 5. DEFENSES-INFRINGEMENTS OF PATENT WITHOUT KNOWLEDGE OF PATENTEE DOES NOT WORK AN ABANDONMENT. . Where infringements by various parties and for considerable periods have been shown to have taken place during the life of the patent, but the circumstances fail to establish acquiescence in the instances when the infringement was known to the owners of the patent, there exists no such laches as would defeat an accounting. 6. PRACTICE IN COURTS-Court will DETERMINE THE WHOLE CONTROVERSY, EVEN IF PATENT EXPIRES PENDING SUIT, There is no doubt of the propriety of decreeing an accounting, although the patent has expired since the commencement of the suit, and although for that reason there should not be an injunction. The jurisdiction of a court of equity having been legitimately invoked by the complainant, he will not be sent away without redress, because all the redress to which he was originally entitled cannot now be awarded to him. The court will retain the cause in order to completely determine the controversy. 7. COSTS. Where the defendants infringe only one of two patents sued upon, neither party should recover costs as against the other. WALLACE, J.: Infringement is alleged of two letters patent for improvements in lanterns, granted to John H. Irwin, one May 2, 1865, and the other October 24, 1865, both of which have been assigned to the complainant. The second patent only is infringed upon the construction of the claims of the first patent adopted and expressed at the hearing of the cause, which limits it to a lantern having two horizontal guards connected by |