CASES ARGUED AND DETERMINED IN THE CIRCUIT COURTS OF THE UNITED STATES WITHIN THE SECOND CIRCUIT. JOHN B. EMERSON vs. PETER HOGG AND CORNELIUS II. DELAMATER. It is the province and the duty of the Court to settle, as a question of law, the meaning of the specification of a patent, and, if that cannot be ascertained satisfactorily upon its face, the patent is void for ambiguity. Accordingly, where it was objected, upon the face of the specification of a patent for improvements in the mode of propelling vessels, that it was uncertain whether the patentee claimed a wheel constructed spirally, or only spiral paddles attached to a wheel, and the Court instructed the jury that the question whether the specification was ambiguous in the particular charged was one compounded of law and fact, and that, if the jury should find that a spiral wheel and a spiral propeller were the same thing in ordinary acceptation, then the specification was sufficiently certain in that respect: Held, that the instruction was erroneous. Where prayers for instructions to the jury are made, and are not complied with by the Court, they are to be considered as refused. Exceptions will lie to the refusals of the Court to give instructions when requested, in like manner as to the instructions actually given. A patent embracing several distinct inventions is valid, where they are capable of being used in connection, and to subserve the same common end. But their actual employment together is not required to sustain the validity of the patent, and the wrongful use of either invention separately is a violation of the patent pro tanto. Emerson v. Hogg. Where a patent contained three claims, viz.: (1.) A mode of converting the reciprocating motion of a piston into a continued rotary motion, by a new combination of machinery; (2.) An improved spiral propelling-wheel; and (3). The application of a revolving vertical shaft to the turning of a capstan on the deck of a vessel; and it appeared from the specification that the three inventions were contrived with the view of being used conjointly, and as conducing to a common end, in the better propelling and navigating a ship: Held, that the patent was valid. Held, also, that the fact that the three inventions were capable of being used separately and independent of each other, did not prevent their being embraced in one patent. If a patent describes an invention, and how it is to be applied, it is not necessary in either the specification or the drawing to describe or delineate the old machinery with which the new contrivance is to be connected, when no change in its form or proportions enters into the new invention. Under the act of February 21st, 1793, (1 U. S. Stat. at Large, 322, § 3,) it is sufficient for the patentee to put on file, with his specification, drawings and written references, without their being mentioned in the specification; and, if the references are written on the drawings, the terms of the act are complied with. Where a patent was issued in 1834, to which no drawing was annexed, but a drawing had been originally deposited in the Patent Office, and the record of the patent and the drawing were destroyed by fire in the burning of the Office in December, 1836, and the patentee, under the act of March 3d, 1837, (5 U. S. Stat. at Large, 191,) restored the record of his patent in May, 1841, but did not file a drawing under § 1 of that act, verified by oath, until February, 1844, and then, in March, 1844, finding that drawing imperfect, made and swore to and filed a second one, and, in May, 1844, commenced an action for the infringement of his patent: Held, that a duly certified copy of the second drawing, as so attested and filed, was admissible in evidence, on the trial of such action, under § 2 of that act. It being alleged that the patentee had abandoned his discovery, and the lapse of time from the grant of the patent to the commencement of the action being urged as proof of that fact: Held, that he was entitled to give evidence of the filing of his drawings, or of any other act done by him in assertion of his right. Where, in such case, on a motion by the defendant for a new trial, it was objected that the plaintiff was not entitled to damages for infringements committed prior to the re-recording of his patent, the charge of the Court at the trial having imported a general liability of the defendant, and the Court not having been prayed to instruct the jury otherwise, and no exception having been taken to the direction as given: Held, that the objection could not now be taken. (Before NELSON and BETTS, JJ., Southern District of New York, December 1st, |