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CIRCUIT COURT OF THE UNITED STATES.

Fall Circuit.

MASSACHUSETTS, OCTOBER TERM, 1840, AT BOSTON.

Hon. JOSEPH STORY, Associate Justice of the Supreme Court. BEFORE HOD. JOHN DAVIS, District Judge.

NATHANIEL J. WYETH AND FREDERICK TUDOR

ย.

STONE AND OTHERS.

In a bill in equity for a perpetual injunction of the defendants, on account of an asserted violation of a patent right for an invention, it is a good defence, that prior to the granting of the patent, the inventor had allowed the invention to go into public use, without objection. But it should be clearly established by proof, that such public use was with the knowledge and consent of the inventor. The mere user by the inventor of his invention, in trying experiments, or by his neighbours, with his consent, as an act of kindness for temporary and occasional purposes only, will not destroy his right to a patent therefor.

If the defendants use a substantial part of the invention patented, although with some modifications of form or apparatus, it is a violation of the patent right. So, if the patent be of two machines, and each is a new invention, and the defendant use only one of the machines.

If the patentee, after obtaining his patent, dedicates or surrenders it to public use, or acquiesces for a long period in the public use thereof, without objection, he is not entitled to the aid of a court of equity to protect his patent; and such acquiescence may amount to complete proof of a dedication or surrender thereof to the public.

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Wyeth et al. v. Stone et al.

But to entitle the defendants to the benefit of such a defence, the facts must be explicitly relied on, and put in issue by their answer; otherwise the Court cannot notice it.

In the present case, the patent and specification claimed for the patentee, as his invention, the cutting of ice of a uniform size by means of an apparatus worked by any other power than human. It claimed, also, not only the invention of this art, but also the particular method of the application of the principle, stated in the specification, which was by two machines described therein, called the saw and the cutter. It was held by the Court, that the specification, so far as it claimed the art of cutting ice by means of an apparatus worked by any other power than human, was the claim of an abstract principle, and void; but so far as it claimed the two machines described in the specification, it might be good, if a disclaimer were made of the other parts, according to the patent act of 1837, ch. 45, § 7, and § 9, within a reasonable time, and before the suit were brought. But a disclaimer, after the suit brought, would not be sufficient to entitle the party to a perpetual injunction in equity, whatever might be his right to maintain a suit at law on the patent.

If the patentee has assigned his patent in part, and a joint suit is brought in equity for a perpetual injunction, a disclaimer by the patentee alone, without the assignee's uniting in it, will not entitle the parties to the benefit of the 7th and 9th sections of the Act of 1837, ch. 45.

A single patent may be taken for several improvements on one and the same machine, or for two machines, which are invented by the patentee, and conduce to the same common purpose and object, although they are each capable of a distinct use and application, without being united together. But a single patent cannot be taken for two distinct machines, not conducing to the same common purpose or object, but designed for totally different and independent objects.

An inventor is bound to describe in his specification, in what his invention consists, and what his particular claim is. But he is not bound to any precise form of words, provided their import can be clearly ascertained by fair interpretation, even though the expressions may be inaccurate. The assignee of a patent right, in part or in whole, cannot maintain any suit at law, or in equity, either as sole or as joint plaintiff thereon, at least as against third persons, until his patent has been recorded in the proper department, according to the requisitions of the patent acts.

BILL in equity for a perpetual injunction, and for other relief, founded upon allegations of the violation, by the defendants, of a patent right, granted originally to the plaintiff,

Wyeth et al. v. Stone et al.

Wyeth, as the inventor, by letters patent, dated the 18th of March, A. D. 1829, "for a new and useful improvement in the manner of cutting ice, together with the machinery and apparatus therefor," as set forth in the schedule to the letters patent; and afterwards with a small reservation assigned to the other plaintiff, Tudor, on the 9th of February, 1832, by a deed of assignment of that date, but which had never been recorded. The schedule set forth two different apparatus or machines for cutting the ice, the one called the saw, the other the cutter, which are capable of being used separately or in combination, and described their structure, and the mode of applying them, as follows:

(1.) Two bars of iron, or other material, secured to each other by cross bars the two first mentioned to be of such distance apart as the dimension of the ice is required to be. (2.) On each outside bar is bolted a plate of iron as long as the bar, and at right angles with the cross bars. These plates to be so bolted to the bars as to project three inches each on one side of the bars to which they are bolted, and one of them to project on the other side of the bar two inches; the other, one inch. These projections may be varied, according to the desired depth of the cut. (3.) These plates, both on the upper side and on the under side of the bars, are to be cut at four equi-distant points each, at an angle of forty-five degrees, or thereabouts, to the bar, thereby forming a cutting point of forty-five degrees, or thereabouts; to this point is welded a piece of steel, to form the chisel. The rear end of the plates to be of the before specified width from the bar, but to diminish toward the front end one fourth of an inch at each point, thereby giving each succeeding point a clear cut of one fourth of an inch deeper than its precursor. (4.) The mouths, by which the chips cut from the ice by the chisels are discharged, are made similar to that of a carpenter's

Wyeth et al. v. Stone et al.

plough. (5.) To the middle of the front cross-bar is fixed a ring, for the purpose of attaching a draught chain, to which the horse that draws the cutter is to be harnessed. (6.) This first part of the apparatus for cutting ice is called the cutter, and is used as follows: The cutter is laid on the ice, with the three-inch side of the plates downward, and drawn forward in a straight line as far as is required, thus making two grooves of an inch deep. The horse is then turned about, and the cutter turned over, so that the two-inch side of the plate shall be in one of the first grooves cut, and the one-inch side on the ice; and as the cutter is drawn forward, the twoinch side makes one of the first grooves an inch deeper, and the one-inch side forms a new groove of an inch deep. Proceed in this manner until as many grooves are cut as are wanted; then turn the cutter over upon the three-inch side, go over the whole again with this side, and they are finished. Repeat the same process at right angles with the first grooves, and the operation with this part of the apparatus is finished.

Part Second of Apparatus for Cutting Ice. (1.) Two spur-wheels, about three feet six inches, more or less, in diameter, connected together by an axletree of iron, or other material, from the centre of each to the other, fixed immovable in each. (2.) A pair of fills, proceeding from the axletree, and secured to it by a pair of composition boxes, admitting the axletree to turn in them. (3.) A cog wheel, about three feet two inches in diameter, more or less, fixed in the centre of the axletree, so as to be incapable of turning, except with the axletree. (4.) A pair of handles attached to the axletree, in the same manner as the fills, so as to admit of the motion of the axletree in them; these handles to be placed one on each side of the cog wheel in the centre of the axletree, and to be connected together by a permanent bar, at a suitable distance from the axletree. (5.) Two cog wheels, about

Wyeth et al. v. Stone et al.

four inches diameter, more or less, one of which to work on the large cog wheel, and the other to work on the one so working, and both to be secured by pintles passing through the handles the small cog wheel not working on the large cog wheel to have secured beside it a circular saw, about two and a half feet diameter, more or less. (6.) The proportion between the large and small cog wheels is varied, to obtain greater or less velocity for the saw, as may be wanted. This part of the apparatus for cutting ice is called the saw, and is used as follows: Put the saw into one of the outside grooves made by the cutter; drive the horse forward, following the groove made by the cutter; at the same time a man who manages the handles presses them down as much as the strength of the horse will admit of. This operation is followed back and forth, until the ice is cut through. The same is done with the outer parallel groove on the opposite side of the work, and also on one of the end grooves, running at right angles with these. By this process the ice on the three sides of the plat, or work marked by the cutter, is cut through. When this is done, take an iron bar (one end of which is wide and fitted to the groove, and the other end of which is sharpened as a chisel,) and insert the end which is fitted to the groove into the groove next to and parallel with the end groove which is cut through; pry lightly in several places, then more strongly, until the ice is broken off; then strike lightly with the chisel end of the bar into the cross grooves of the piece split off, and it easily separates into square pieces. Thus proceed with the whole plat marked out by the cutter. It is claimed as new, to cut ice of a uniform size, by means of an apparatus worked by any other power than human. The invention of this art, as well as of the particular method of the application of the principle, are claimed by the subscriber.

The answer insisted upon various grounds of defence, which are fully stated in the argument and in the opinion of the Court.

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