may copyright his book if he pleases, but that only secures to him the exclusive right of printing and publishing his book. So of all other inventions or discoveries.

The copyright of a book on perspective, no matter how many drawings and illustrations it may contain, gives no exclusive right to the modes of drawing described, though they may never have been known or used before. By publishing the book without getting a patent for the art the latter is given to the public. The fact that the art described in the book by illustrations of lines and figures which are reproduced in practice in the application of the art, makes no difference. Those illustrations are the mere language employed by the author to convey his ideas more clearly. Had he used words of description instead of diagrams (which merely stand in the place of words) there could not be the slightest doubt that others applying the art to practical use might lawfully draw the lines and diagrams which were in the author's mind and which he thus described by words in his book.

The copyright of a work on mathematical science cannot give to the author an exclusive right to the methods of operation which he propounds or to the diagrams which he employs to explain them, so as to prevent an engineer from using them whenever occasion requires. The very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used without incurring the guilt of piracy of the book. And where the art it teaches cannot be used without employing the methods and diagrams used to illustrate the book, or such as are similar to them, such methods and diagrams are to be considered as necessary incidents to the art, and given therewith to the public-not given for the purpose of publication in other works explanatory of the art, but for the purpose of practical application.

Of course these observations are not intended to apply to ornamental designs or pictorial illustrations addressed to the taste. Of these it may be said that their form is their essence and their object the production of pleasure in their contemplation. This is their final end. They are as much the product of genius and the result of composition as are the lines of the poet or the historian's periods. On the other hand, the teachings of science and the rules and methods of useful art have their final end in application and use, and this application and use are what the public derive from the publication of a book which teaches them. But as embodied and taught in a literary composition or book their essence consists only in their statement. This alone is what is secured by the copyright. The use by another of the same methods of statement, whether in words or illustrations, in a book published for teaching the art, would undoubtedly be an infringement of the copyright.

Recurring to the case before us, we observe that Charles Selden by his books explained and described a peculiar system of book-keeping,

and illustrated his method by means of ruled lines and blank columns with proper headings on a page or on successive pages. Now, while no one has a right to print or publish his book or any material part thereof as a book intented to convey instruction in the art, any person may practice and use the art itself which he has described and illustrated therein. The use of the art is a totally different thing from the publication of the book explaining it. The copyright of a book on bookkeeping cannot secure the exclusive right to make, sell, and use accountbooks prepared upon the plan set forth in such book. Whether the art might or might not have been patented is a question which is not before us. It was not patented, and is open and free to the use of the public. And, of course, in using the art the ruled lines and headings of accounts must necessarily be used as incident to it.

The plausibility of the claim put forward by the complainant in this case arises from a confusion of ideas produced by the peculiar nature of the art described in the books which have been made the subject of copyright. In describing the art, the illustrations and diagrams employed happen to correspond more closely than usual with the actual work performed by the operator who uses the art. Those illustrations and diagrams consist of ruled lines and headings of accounts; and it is similar ruled lines and headings of accounts which, in the application of the art, the book-keeper makes with his pen or the stationer with his press; while in most other cases the diagrams and illustrations can only be represented in concrete forms of wood, metal, stone, or some other physical embodiment. But the principle is the same in all. The description of the art in a book, though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art itself. The object of the one is explanation; the object of the other is use. The former

may be secured by copyright; the latter can only be secured, if it can be secured at all, by letters patent.

The remarks of Mr. Justice Thompson, in the circuit court, in the case of Clayton v. Stone & Hall (2 Paine's Rep., 392), in which copyright was claimed in a daily price current, are apposite and instructive. He says:

In determining the true construction to be given to the act of Congress it is proper to look at the Constitution of the United States to aid us in ascertaining the nature of the property intended to be protected. "Congress shall have power to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their writings and discoveries." The act in question was passed in execution of the power here given, and the object, therefore, was the promotion of science; and it would certainly be a pretty extraordinary view of the sciences to consider a daily or weekly publication of the state of the market as falling within any class of them. They are of a more fixed, permanent, and durable character. The term "science" cannot with any propriety be applied to a work of so fluctuating and fugitive a form as that of a newspaper or price-current, the subject-matter of which is daily changing and is of mere temporary use. Although great praise may be due to the plaintiffs for their industry and enterprise in publishing this pap r, yet the law does not contemplate their being rewarded in this way; it must seek patron

age and protection from its utility to the public, and not as a work of science. The title of the act of Congress is "for the encouragement of learning," and was not intended for the encouragement of mere industry unconnected with learning and the sciences. We are accordingly of opinion that the paper in question is not a book the copyright to which can be secured under the act of Congress.

The case of Cobbett v. Woodward (L. R., 14 Equity Cases, 407) was a claim to copyright in a catalogue of furniture which the publisher had on sale in his establishment, illustrated with many drawings of furniture and decorations. The defendants, being dealers in the same business, published a similar book, and copied many of the plaintiff's drawings, though it was shown that they had for sale the articles represented thereby. The court held that these drawings were not subjects of copyright. Lord Romilly, M. R., said:

This is a mere advertisement for the sale of particular articles which any one might imitate, and any one might advertise for sale. If a man, not being a vendor of any of the articles in question, were to publish a work for the purpose of informing the public of what was the most convenient species of articles for household furniture, or the most graceful species of decorations for articles of home furniture, what they ought to cost, and where they might be bought, and were to illustrate his work with designs of each article he described-such a work as this could not be pirated with impunity, and the attempt to do so would be stopped by the injunction of the court of chancery; yet, if it were done with no such object, but solely for the purpose of advertising particular articles for sale, and promoting the private trade of the publisher by the sale of articles which any other person might sell as well as the first advertiser, and if in fact it contained little more than an illustrated inventory of the contents of a warehouse, I know of no law which, while it would not prevent the second advertiser from selling the same articles, would prevent him from using the same advertisement, provided he did not in such advertisement by any device suggest that he was selling the works and designs of the first advertiser.

Another case, that of Page v. Wisden (20 Law Times Rep., N. S., 435), which came before Vice-Chancellor Malins in 1869, has some resemblance to the present. There a copyright was claimed in a cricket-scoring sheet, and the vice-chancellor held that it was not a fit subject for copyright, partly because it was not new, but also because "to say that a particular mode of ruling a book constituted an object for a copyright is absurd."

These cases, if not precisely in point, come near to the matter in hand, and, in our view, corroborate the general proposition which we have laid down.

The case before Judge Leavitt, in the Ohio circuit (reported in 1 Bond, 540), which is much relied on by the complainant, was one where a copyright was claimed in a chart of patterns for cutting dresses and basques for ladies, and coats, jackets, &c., for boys. It is obvious that such designs could only be printed and published for information, and not for use in themselves. Their practical use could only be exemplified in cloth on the tailor's board and under the tailor's shears-in other words, by the application of a mechanical operation to the cutting of cloth in certain patterns and forms. Surely the exclusive right to this practical use was not reserved to the publisher by his copyright of the

chart. Without undertaking to say whether we should or should not concur in the decision in that case, we think it cannot control the present.

The conclusion to which we have come is, that blank account-books are not the subject of copyright; and that the mere copyright of Selden's book did not confer upon him the exclusive right to make and use account-books ruled and arranged as designated by him and described and illustrated in said book.

The decree of the circuit court must be reversed, and the cause remanded, with instructions to dismiss the complainant's bill.

[Supreme Court of the United States.]

WOODBURY PATENT PLANING MACHINE COMPANY v. KEITH.

Decided October Term, 1879.

17 O. G.,

1031.

1. Woodbury filed a caveat May 28, 1846, and his application June 3, 1848. The latter was rejected February 20, 1849, and the fee withdrawn in October, 1832. Under the act of 1870 the application was renewed within the six months allowed, and the patent granted April 29, 1873. No serious attempt having been made to procure a re-examination of the old application, or to renew it, for a period of more than twenty years, though during more than sixteen years of that time the improved device had been in common use with the knowledge of the patentee, it was held that the invention was abandoned before the renewed application was made. 2. The action of the Commissioner of Patents in granting a patent, under section 35 of the act of 1870, is not conclusive on the question of abandonment.

3. The rule of the Patent Office prior to the passage of the act of 1870, that an application rejected, or not prosecuted within two years after its rejection or withdrawal, should be conclusively presumed to have been abandoned, though not always adhered to, had held it to be a question of law in the cases to which it applied, and the effect of the statute was rather to change the rule than to make the decision of the Commissioner granting a patent an unreviewable decision that the invention had not been abandoned.

4. Section 35 of the act of 1870 declares abandonment to be a question of fact, and patents granted thereunder are just as impeachable as those granted under section 24, whereby the Commissioner is authorized to deal with the question of abandonment as well as public use and sale and originality of invention.

5. Abandonment, although a matter of intention on the part of the inventor, need not be expressed in words, but may be gathered from the acts of the inventor.

6. Abandonment may occur as well after an application has been made and rejected or withdrawn as before, and evidenced in the same manner.

7. The law requires and favors diligence in prosecuting the claims to an exclusive right, and an inventor cannot, without cause, hold his application pending during a long period of years, leaving the public uncertain whether he intends ever to prosecute it, and keeping the field of his invention closed against other inventors. 8. Circumstances may arise which will excuse delay in prosecuting an application, such as extreme poverty or protracted sickness; but in the absence of any such excuse entire inaction on the part of the inventor, coupled with long-continued public use without complaint or remonstrance on his part, constitute abandonment to the public.

9. The rule of the Patent Office that an application rejected, or not prosecuted within two years after its rejection or withdrawal, should be conclusively presumed to have been abandoned, was not a statutory rule, nor inflexible in its application, but was frequently departed from and abolished before the act of 1870, and was no bar to a movement on the applicant's part to have his application reinstated after withdrawal, or to have it re-examined, or take an appeal, or file a new one, and cannot be regarded as an adequate excuse for a long delay.

10. Woodbury's invention, patented April 29, 1873, was anticipated by the machine made by Alfred Anson in 1843, and in constant use for thirty years.

11. Mere enlargement of a machine to strengthen or increase its capacity is the work of the mechanic, and not invention.

12. An objection to the examination of a witness should state specifically the grounds of the objection, in order that the opposite party may have the opportunity of removing it, if possible.

13. Under section 4920 of the Revised Statutes only the names and residences of those who had invented or used the anticipating machine or improvement, and not the names of those who are to testify of its invention or use, are required to be pleaded.

APPEAL from the circuit court of the United States for the district of Massachusetts.

Mr. Justice STRONG delivered the opinion of the court:

The bill in this case is founded upon a patent granted to Joseph P. Woodbury on the 29th of April, 1873, for an alleged "new and useful improvement in planing-machines," numbered 138,462. The specifi cation declares the object of the improvement to be presenting the ma terial to the cutter in such a manner as both to counteract, as far as practicable, the fluttering or tremor caused by the successive blows of the knives, and the consequent wavy and uneven surface of the planed work, and at the same time to overcome more perfectly than theretofore the tendency in the knives of the rotary cutter to loosen and dislodge the knots and shakes, and to tear the fibers of the wood irregularly, instead of severing them smoothly along the exact surface desired. To accomplish this twofold object the patentee proposed to make use of what he denominated "a yielding pressure-bar," made of such material and of such mass as to be rigid from end to end, with its under face flat, so that it may have an extended bearing upon the work longitudinally of the machine, and mounted upon springs so as, within certain limits, to accommodate itself to the varying irregularities in the surface of the material operated upon. The specification then proceeds to state the patentee's supposed advantages of the alleged invention, and to describe, by reference to drawings, the patented device. The claims are four, all for combinations. They are as follows:

1. The combination of a rotary cutter and a yielding pressure bar or bars, substantially as and for the purpose described.

2. The combination of a solid bed and a yielding pressure bar or bars for the purpose of holding down the material while being acted on by the cutter, substantially as set forth.

3. The combination of a solid bed, a rotary cutter, and a yielding pressure bar or bars, substantially as described.