Opinion of the court. account of such sale and public use, except on proof that the invention was on sale and in public use more than two years before the application therefor was filed in the Patent Office. 5 Stat. at Large, 354; McClurg v. Kingsland, 1 Howard, 209; Stimpson v. Railroad, 4 Id., 380. Evidence to show that the invention of the original patentee, as finally perfected, was on sale and in public use more than two years before he applied for a patent is entirely wanting, and if such evidence was offered, it could not be admitted under the pleadings, as no such defense is set up in the answer. Foster v. Goddard, 1 Black, 518. Undoubtedly an inventor may abandon his invention, and surrender or dedicate it to the public; but mere forbearance to apply for a patent during the progress of experiments, and until the party has perfected his invention and tested its value by actual practice, affords no just grounds for any such presumption. Kendall et al. v. Winsor, 21 Howard, 322; Pennock et al. v. Dialogue, 2 Peters, 1. Application for a patent in this case was probably filed in the Patent Office before the middle of November, 1826, and the proofs. are full and satisfactory to the court that the inventor, up to that time, was constautly engaged in perfecting his improvements, and in making the necessary preparations to apply for a patent. III. Third defense is, that the reissued letters patent are void, because they were not issued in conformity with the act of Congress relating to that subject. Omission of the original patentee seasonably to apply for an extension of his patent was occasioned through erroneous information given to him by the Commissioner, and not from any negligence or fault of his own. Acting upon information from that source, the inventor did not file his application until it was too late to give the notices as required by law, and the time for presenting such an application having expired, the Commissioner had no power to grant his request. Deprived of any legal remedy under the general laws for the protection of inventors, he applied to Congress, and on the thirtieth of May, 1862, Congress passed an act for his relief. 12 Stat. at Large. 904. By the terms of that act he was authorized to apply to the Commissioner for a renewal and extension of the letters patent, previously granted to him for the term of seven years from the time of such renewal and extension, and the Commissioner was empowered to grant such renewal and extension, or to withhold the same under the then existing laws, in the same manner as if the application therefor had been seasonably made. Annexed to the body of Opinion of the court. the act is a proviso, that such renewal and extension shall not have the effect or be construed to restrain persons using the invention, at the time of such renewal and extension, from continuing the use of the same, nor to subject them to any claim or damage for having used such machinery. Objection now taken is, that the said proviso in the act of Congress is not recited in the reissued letters patent; but the objection is entirely without merit, as it appears in the record that the certificate of renewal and extension, as granted by the Commissioner, was made subject in express terms to the proviso contained in that act. Doubts are entertained whether even that was absolutely necessary; but it is clear that there is nothing in the proviso to warrant the conclusion that the form of the extended patent might not be the same as that in general use, and it is not even suggested that the form of the extended or reissued patent was in any respect different from the corresponding established forms of the Patent Office. IV. Fourth defense is, that the respondent's machinery was in use before the patent in this case was granted; but it is not alleged that their machinery was in use before the extended patent was issued, and therefore the allegation affords no defense to the charge of infringement. Stimpson v. Railroad, 4 Howard, 380. Other defenses are mentioned in the brief of the respondents; but none of them were urged in argument, and they must be considered as abandoned. V. Infringement is an affirmative allegation made by the complainant, and the burden of proving it is upon him, unless it is admitted in the answer. Specific inquiries were made of the respondents in this case, and they did not satisfactorily answer those interrogatories. Evasive answers, under such circumstances, if not positively equivalent to admissions, afford strong presumptive evidence against the respondents. Apart from that, however, the answer of the respondents is unsatisfactory in other respects. They do not in terms deny that they have used, and are using, the invention as alleged; but what they do deny is, that they use any machinery in violation and infringement of any rights of the complainant, or that they are using, or have made, used, or sold, any machinery not protected by the proviso contained in the act of Congress passed for the relief of the original patentee. Clear implication from the answer is, that they had made machinery such as that described in the letters patent, and if so, then they are clearly liable as infringers, as they were not incorporated at the date of the extended patent. Machines made since the pat Statement of the case. ent was extended are not protected by that proviso, as is plain from its language; but the complainant cannot recover damages for any infringement antecedent to the date of the reissued patent, as the extended patent was surrendered. Proofs of the complainant to show infringement consist in a comparison of the machines made by the respondents with the mechanism described in the patent, and in the testimony of scientific experts, and they are so entirely satisfactory, that it is not deemed necessary to pursue the investigation. DECREE AFFIRMED. WHITELY v. SWAYNE. 1. Where a patent has been granted for improvements, which, after a full and fair trial, resulted in unsuccessful experiments, and have been finally abandoned, if any other person takes up the subject of the improvements, and is successful, he is entitled to the merit of them as an original inventor. 2. He is the first inventor, and entitled to the patent, who, being an original discoverer, has first perfected and adapted the invention to actual use. WHITELY filed a bill against Swayne, in the Circuit Court for Southern Ohio, to enjoin the use of a certain machine known as the Kirbey harvester. As the case was presented in the argument, he relied upon a patent granted to one Steadman, May 23, 1854, for an improvement in clover and grass-seed harvesters, which had been assigned to him, (Whitely,) and surrendered, and three reissues granted to him on the 19th June, 1860. The machine complained of, and sought to be enjoined, had been originally patented to one Byron Dinsmore. Dinsmore's specifications were sworn to, December 31st, 1850, and was received at the Patent Office, January 10th, 1851. His patent was issued February 10th, 1852. He made and tried one of his machines in 1850, and cut some ten or twenty acres with it. In 1851 he made twenty-one of them, and between fifty and sixty of them in the following year. On the 18th of April, 1852, three months after the date of Dinsmore's patent, Steadman filed a caveat in the Patent Office, in which he stated that he was engaged in making experiments for perfecting certain improvements in a machine for harvesting clover and grass-seed, preparatory to letters patent therefor. As already stated, this patent was granted May 23, 1854. Besides the caveat and the patent, there was an account, Opinion of the court. given in the testimony, of the working of the machine, by Mr. Hatch, a neighbor of Steadman's, who resided in Holley, Orleans county, New York, in 1854. The machine was tried in the neighborhood on several occasions in clover fields, but never went into successful practical operation. No machines were ever made under the patent after the first, which was about the time the patent was granted. The experiment appeared to have been wholly given up and abandoned by Steadman as a failure; and it thus remained for some six years, when the complainant (Whitely) took from him an assignment of the patent, and procured the three reissues already referred to. The bill was dismissed by the court below, and the complainant brought the case here. Mr. Fisher, for the appellant. Mr. Wright, contra. Mr. Justice NELSON delivered the opinion of the court. The plaintiff's title, and the one upon which he must succeed against the defendant, if he succeeds at all, rests upon a patent for improvements in a machine for harvesting clover and grass-seed; which improvements, after a full and fair trial, resulted in unsuccessful experiments, and which were finally abandoned. They never went into any useful or practical operation, and nothing more was heard of them from Steadman or any other person, for a period of six years. At the end of this period the plaintiff takes an assignment of the patentee, and is, doubtless, vested with all his rights. But what were those rights? Clearly, if any other person had chosen to take up the subject of the improvements, where it was left off by Steadman, he had a right thus to enter upon it, and if successful, would be entitled to the merit of them. as an original inventor, for he is the first inventor, and entitled to the patent, who, being an original discoverer, has first perfected and adapted the invention to actual use. Curtis on Patents, § 43, p. 37, and notes. Hence, if Dinsmore's patent was later than that of Steadman, and was for similar improvements, it would constitute a perfect defense against the suit in the present case, as the plaintiff is obliged to rely wholly on this assignment of Steadman, and stands in his footsteps, and has no better title. But the fact is otherwise. Dinsmore's invention goes back to the year 1850. His first machine was successfully tried in the harvest of that year. Some twenty-one were made in the year 1851, and from fifty to sixty in 1852. Statement of the case. Steadman's caveat was even not filed in the Patent Office till after Dinsmore's patent was issued. The present defendant derives his title from Dinsmore. The case is too plain to require any extended examination. DECREE AFFIRMED. MOREY v. LOCKWOOD. (8 Wallace, 230.) 1. Where a limitation of a claim, as found in a patent, has been caused by a mistake of the Commissioner of Patents in supposing that prior inventions would be covered, if the claim was made, as the applicant makes it, more broad, and an inventor has thus been made to take a patent with a claim narrower than his invention, it is the right, and, as it would seem, the duty of the Commissioner, upon being satisfied of his mistake, as to the nature of the prior inventions, to grant a reissue with an amended specification and a broader claim. 2. Where the amended specifications and broader claim secures the patentee only the same invention that he had originally described and claimed, the reissue is valid. 3. The syringe known as the Richardson syringe is an infringement of a patent for a syringe, granted March 31st, 1857, to C. & H. Davidson, and reissued April 25th, 1865, with an amended specification. 4. The Davidsons were the original and first inventors of the syringe patented by the patent and reissue above referred to. APPEAL from the Circuit Court for the District of Massachusetts. Lockwood, assignee of the inventors, filed a bill in the court just named to restrain Morey and others from infringing letters patent granted to Charles H. and Herman E. Davidson, on the 31st of March, 1857, for a new and useful improved syringe; and which were surrendered and reissued on the 25th day of April, 1865, with an amended specification. The diagram below presents a sectional view of the instrument; now commonly called Prior to the date, when, by the inventions of Goodyear, India |