cases at common law where depositions are given in evidence on the trial, and in suits in equity where depositions are read at the hearing. Troy Factory v. Corning, 7 Blatch. 16.

No per diem allowance should be taxed for the attendance before the master, of witnesses whose testimony was afterwards abandoned or given up, or was stricken out or rejected by the master, where the striking out or rejection has been sustained by the court. It would be unreasonable and against the established rule of taxation to tax costs in favor of a party for acts or services which were useless or illegal, and which only led to increased expense and to a waste of the time of the court and of all persons concerned. Troy Factory v. Corning, 7 Blatch. 16.

The docket fee of twenty dollars is the highest compensation allowed to a solicitor in a cause, and can be allowed but once. Troy Factory v. Corning, 7 Blatch. 16.

Trial and final hearing have well-known definite meanings in the law, and they are used in this statute in that well-known sense. "Trial" is used to describe the process of determining the issues in an action at law, and "final hearing" the submission of the case for a determination thereof upon the pleadings, or pleadings and proofs, or otherwise, so that the case may be finally disposed of. The proceedings before a master upon a reference for a provisional or interlocutory purpose are neither a trial nor a final hearing, and the docket fee of twenty dollars can not be allowed. Doughty v. Manuf. Co., 4 Fish. 318.

SEC. 4921 A (Act of February 16, 1875, § 2, 18 Stat. 316). That said courts, when sitting in equity for the trial of patent cases, may impanel a jury of not less than five and not more than twelve persons, subject to such general rules in the premises as may, from time to time, be made by the Supreme Court, and submit to them such questions of fact arising in such cause as such circuit court shall deem expedient; and the verdict of such jury shall be treated and proceeded upon in the same manner and with the same effect as in the case of issues sent from chancery to a court of law and returned with such findings.

SEC. 4922. Whenever, through inadvertence, accident or mistake, and without any wilful default or intent to defraud or mislead the public, a patentee has, in his specification, claimed to be the original and first inventor or

discoverer of any material or substantial part of the thing patented, of which he was not the original and first inventor or discoverer, every such patentee, his executors, administrators and assigns, whether of the whole or any sectional interest in the patent, may maintain a suit at law or in equity for the infringement of any part thereof, which was bona fide his own, if it is a material and substantial part of the thing patented, and definitely distinguishable from the parts claimed without right, notwithstanding the specifications may embrace more than that of which the patentee was the first inventor or discoverer. But in every such case in which a judgment or decree shall be rendered for the plaintiff, no costs shall be recovered unless the proper disclaimer has been entered at the patent office before the commencement of the suit. But no patentee shall be entitled to the benefits of this section if he has unreasonably neglected or delayed to enter a disclaimer.

Statute Revised-July 8, 1870, ch. 230, 60, 16 Stat. 207.

Prior Statute-March 3, 1837, ch. 45, 2 9, 5 Stat. 194.

SEC. 4923. Whenever it appears that a patentee, at the time of making his application for the patent, believed himself to be the original and first inventor or discoverer of the thing patented, the same shall not be held to be void on account of the invention or discovery, or any part thereof, having been known or used in a foreign country, before his invention or discovery thereof, if it had not been patented or described in a printed publication.

Statute Revised-July 8, 1870, ch. 230, ? 62, 16 Stat. 208.
Prior Statute-July 4, 1836, ch. 357, 15, 5 Stat. 123.

Construction.

Whether the knowledge by a person in this country of the use of an invention in a foreign country is sufficient to render a patent void is doubted. Illingworth v. Spaulding, 9 Fed. Rep. 611.

No description in any printed publication of the thing patented can avoid the patent, unless such description in such printed publication was prior

in point of time to the invention of the patentee. A publication after the invention, but before the application for a patent, is not sufficient. Bartholomew v. Sawyer, 1 Fish. 516; s. c. 4 Blatch. 347; Howe v. Morton, 1 Fish. 586; Cochrane v. Deener, 94 U. S. 780; s. c. 11 O. G. 637; Lorillard v. Dohan, 20 O. G. 1587; s. c. 9 Fed. Rep. 509.

A foreign patent or other foreign printed publication describing an invention is no defence to a suit upon a patent of the United States, unless published anterior to the making of the invention or discovery secured by the latter, provided that the American patentee at the time of making application for his patent believed himself to be the first inventor or discoverer of the thing patented. Elizabeth v. Pavement Co., 97 U.S. 126; s. c. 6 O. G. 772 ; s. c. 3 O. G. 522; s. c. 1 Ban & Ard. 463; s. c. 6 Fish. 424.

The description in a foreign publication, in order to invalidate a patent, must contain and exhibit a substantial representation of the patented improvement, in such full, clear and 'exact terms as to enable any person skilled in the art or science to which it appertains, to make, construct, and practice the invention to the same practical extent as they would be enabled to do if the information was derived from a prior patent. Seymour v. Osborne, 3 Fish. 555; s. c. 11 Wall. 516; Sewall v. Jones, 91 U. S. 171; s. c. 9 0. G. 471; s. c. 3 Cliff. 563; s. c. 6 Fish. 343; s. c. 3 O. G. 630; Cohn v. U. S. Corset Co., 93 U. S. 366; s. c. 12 Blatch. 225; 6 O.G. 259; 11 O. G. 457; s. c. 1 Ban & Ard. 340; ex parte McClosky, 3 MacArthur 14; Judson v. Cope, 1 Fish. 615; s. c. 1 Bond 327; Hays v. Sulsor, 1 Fish. 532; s. c. 1 Bond 279; Cahill v. Brown, 15 O. G. 697; s. c. 3 Ban & Ard. 580; Atlantic Giant Powder Co. v. Parker, 16 O. G. 495; s. c. 16 Blatch. 281; s. c. 4 Ban & Ard. 292; Nathan v. N. Y. Elevated R. Co., 5 Ban & Ard. 280; s. c. 2 Fed. Rep. 225; Downton v. Yaeger Milling Co., 25 O. G. 697.

Although there has been a previous discovery in a foreign country, yet the patent will be good, unless such discovery or some substantial part of it had been patented or described in a printed publication prior to the application. O'Reilly v. Morse, 15 How. 62; Smith v. Ely, 5 McLean 76; s. c. 15 How. 137; Roemer v. Simon, 5 O. G. 555; 12 O. G. 796; s. c. 95 U. S. 214; s. c. 1 Ban & Ard. 138; s. c. 2 Ban & Ard. 72; Furbush v. Cook, 2 Fish. 668; Dawson v. Follen, 2 Wash. C. C. 311; s. c. 1 Robb 9; Judson v. Cope, 1 Fish. 615; s. c. 1 Bond 327; Bartholomew v. Sawyer, 1 Fish. 516; s. c. 4 Blatch. 347; Reutgens v. Kanowrs, 1 Wash. C. C. 168; s. c. 1 Robb 1; Parsons v. Colgate, 24 O. G. 203; s. c. 15 Fed. Rep. 600; Phillips v. Detroit, 17 O. G. 191 ; s. c. 4 Ban & Ard. 347 ; Coburn v. Schroeder, 22 O. G. 419; s. c. 1 Fed. Rep. 425.

If the foreign discovery is not patented or described in any printed publication, it might be known and used in remote places for ages, and the people of this country be unable to profit by it. The means of obtaining knowledge would not be within their reach, and so far as their interest is concerned, it would be the same thing as if the improvement had never been discovered. It is the inventor here that brings it to them and places

it in their possession. As he does this by the effort of his own genius, the law regards him as the first and original inventor, and protects his patent, although the improvement had, in fact, been invented before and used by others. Gayler v. Wilder, 10 How. 477; Sewall v. Jones, 6 Fish. 343; s. c. 3 O. G. 630; s. c. 3 Cliff. 563; s. c. 91 U. S. 171; s. c. 9 O. G. 47.

This provision goes upon the presumption that if the foreign publication has been made, the patentee may have acquired a knowledge of it, and this presumption is not rebutted by proving as far as a negative can be proved, that the inventor had no knowledge of it. Allen v. Hunter, 6 McLean 303; Swift v. Whisen, 3 Fish. 343; s. c. 2 Bond 115; Webb v. Quintard, 5 Fish. 276; s. c. 9 Blatch. 352; 1 O. G. 525.

In considering whether the patentee did believe himself to be the original inventor of what was patented to him, it is material to determine whether he was in fact the original inventor thereof. If he was, there is an end to all inquiry on that point. If he was not, still he may have believed himself to be so. Furbush v. Cook, 2 Fish. 668.

When there is no evidence to the contrary, the presumption is that a patentee at the time of making his application believed himself to be the first inventor or discoverer of the thing patented. Union Sugar Refinery v. Matthiessen, 2 Fish. 600; s. c. 3 Cliff. 639.

The word "patented" means covered and made known to the world by a public patent, so as to bring home to the public generally and probably a knowledge of its existence, and deprive any one of the credit and protection of being original if he afterward construct a like machine. A private patent is not within this clause. Brooks v. Norcross, 2 Fish. 661. What is meant by Congress, undoubtedly, is in the first place, that there shall have been an invention, and in the second place, that it shall have been made patent to the world-patented. A specification enrolled after the granting of the patent will be deemed to take effect only from the time of the enrollment so far as it affects other inventors. Howe v. Morton, 1 Fish. 586.

A provisional specification does not make the therein patented within the meaning of the statute. 24 O. G. 203; s. c. 15 Fed. Rep. 600.

invention described Parsons v. Colgate,

The fact whether the patent was private or public ought to be made to appear by the defendant, as he sets up the patent as if coming within the word patented. Brooks v. Norcross, 2 Fish. 661.

If no copy of the patent itself is given in evidence, but merely a copy ⚫ of the specification and drawing, the proof required by law that the invention was in truth patented, is defective. Brooks v. Norcross, 2 Fish. 661.

If the machine described in the foreign patent required further invention to make it a practical and operative machine, and to embody the same invention which is described in the American patent, it will not work a forfeiture of the American patent. American Leather Co. v. American Tool Co., 4 Fish. 284; s. c. 1 Holmes 503; Goff v. Stafford, 14 O. G. 748; s. c. 3 Ban & Ard. 610.

If the description in a foreign patent is sufficient to show the structure of the article, there need not be any proof otherwise of the existence of the article. Cohn v. U. S. Corset Co., 93 U. S. 366 ; s. c. 12 Blatch. 225; 6 O. G. 259; 11 O. G. 457; s. c. 1 Ban & Ard. 340.

The mere existence of a device in a foreign country, unless patented or described in a printed publication, is not a fact having any significance or recognized at all in connection with our patent laws. Tucker & Davis, 2 O. G. 224; Carr v. Davids, 3 O. G. 440; Smith v. Barter, 7 O. G. 1; Chambers et al. v. Duncan et al., 9 O. G. 741; Chambers v. Duncan, 10 O. G. 787.

If the invention has been described in a foreign patent, it is not patentable. Charles Frampton, 1 O. G. 381.

A foreign patent, to anticipate the novelty of an invention, must contain the device either in a drawing or a description, and in either case the invention must be so distinctly shown or described as to be a matter of certainty, not of inference. Abial C. Herron, 1 O. G. 608.

The date of an invention originated abroad can be carried back no further than the time when specimens embodying it are shown, on satisfactory evidence, to have reached this country. Hovey v. Hufeland, 2 O. G. 493.

An English patent is a sufficient anticipation of an application, if the description of the invention is sufficiently full, in view of the state of the art, to enable a skilled mechanic to construct it. J. McClosky, 9 O. G. 299.

An English provisional specification upon which no patent was issued. can be treated only as a published description in ascertaining the state of the art. R. O. Lowry, 1 Dec. Com. 85; Edward Maynard, 2 Dec. Com.

54.

No previous invention of the same thing, or knowledge or use of the same in any foreign country, can constitute a valid defence to a suit under the patent. Grell v. Kuhnert, 1 Dec. Com. 5.

SEC. 4924. Where the patentee of any invention or discovery, the patent for which was granted prior to the second day of March, eighteen hundred and sixty-one, shall desire an extension of this patent beyond the original term of its limitation, he shall make application therefor, in writing, to the commissioner of patents, setting forth the reasons why such extension should be granted; and he shall also furnish a written statement under oath of the ascertained value of the invention or discovery, and of his receipts and expenditures on account thereof, sufficiently in detail to exhibit a true and faithful account of the loss and profit in any manner accruing to him by reason of the invention or discovery. Such application shall be filed not more than six months nor less than