Gayler v. Wilder. 10 H. and enforced as such in the courts of justice. But the legal right in the monopoly remains in the patentee, and he alone can maintain an action against a third party who commits an infringement upon it. This is the view taken of the subject in the case of Blanchard v. Eldridge, 1 J. W. Wallace, 337, and we think it the true one. Applying these principles to the case before us, the action was properly brought by the plaintiff below, and could not have been maintained by Herring. The agreement is singularly confused and complicated. It purports to grant to Herring the exclusive right to make and vend the Salamander safe in the city, county, and State of New York; and Herring agrees to pay to the defendant in error a cent a pound for every pound the safes might weigh, to be paid monthly. But at the same time it reserves to Wilder the right to set up a manufactory or works for making these safes in the State of New York, provided it is not within fifty miles of the city, and to sell them in the State of New York, paying to Herring a cent a pound on each safe so sold within the State. It is evident that this agreement is not an assignment of an undivided interest in the whole patent, nor the assignment of an exclusive right to the entire monopoly in the State or city of New York. It is therefore to be regarded as a license only, and under the act of congress does not enable Herring to maintain an action for an infringement of the patent right. The defendant in error continues the legal owner of the monopoly created by the patent. The remaining question is upon the validity of the patent on which the suit was brought. It appears that James Conner, who carried on the business of a stereotype founder in the city of New York, made a safe for his own use between the years 1829 and 1832, for the protection of his papers against fire; and continued to use it until 1838, when it passed into other hands. It was kept in his counting-room, and known to the persons engaged in the foundery; and after it passed out of his hands, he used others of a different construction. It does not appear what became of this safe afterwards. And there is nothing in the testimony from which it can be inferred that its mode of construction was known to the person into whose possession it fell, or that any value was attached *to it as a [*496] place of security for papers against fire; or that it was ever used for that purpose. Upon these facts, the court instructed the jury "that, if Conner had not made his discovery public, but had used it simply for his own private purpose, and it had been finally forgotten or abandoned, Gayler v. Wilder. 10 H. such a discovery and use would be no obstacle to the taking out of a patent by Fitzgerald, or those claiming under him, if he be an original, though not the first, inventor or discoverer." The instruction assumes that the jury might find from the evidence that Conner's safe was substantially the same with that of Fitzgerald, and also prior in time. And if the fact was so, the question then was, whether the patentee was "the original and first inventor or discoverer," within the meaning of the act of congress. The act of 1836, c. 357, § 6, authorizes a patent where the party has discovered or invented a new and useful improvement, "not known or used by others before his discovery or invention." And the 15th section provides that, if it appears on the trial of an action brought for the infringement of a patent, that the patentee "was not the original and first inventor or discoverer of the thing patented," the verdict shall be for the defendant. Upon a literal construction of these particular words, the patentee in this case certainly was not the original and first inventor or discoverer, if the Conner safe was the same with his, and preceded his discovery. But we do not think that this construction would carry into effect the intention of the legislature. It is not by detached words and phrases that a statute ought to be expounded. The whole act must be taken together, and a fair interpretation given to it, neither extending nor restricting it beyond the legitimate import of its language, and its obvious policy and object. And in the 15th section, after making the provision above mentioned, there is a further provision, that, if it shall appear that the patentee at the time of his application for the patent believed himself to be the first inventor, the patent shall not be void on account of the invention or discovery having been known or used in any foreign country, it not appearing that it had been before patented or described in any printed publication. In the case thus provided for, the party who invents is not, strictly speaking, the first and original inventor. The law assumes that the improvement may have been known and used before his discovery. Yet his patent is valid if he discovered it by the efforts of [* 497] his own genius, and believed himself to be * the original inventor. The clause in question qualifies the words before used, and shows that, by knowledge and use, the legislature meant knowledge and use existing in a manner accessible to the public. If the foreign invention had been printed or patented, it was already given to the world, and open to the people of this country, as well as of others, upon reasonable inquiry. They would therefore derive no advantage from the invention here. It would confer no benefit upon Gayler v. Wilder. 10 H. the community, and the inventor therefore is not considered to be entitled to the reward. But if the foreign discovery is not patented, nor 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, as 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. And 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. So, too, as to the lost arts. It is well known that centuries ago discoveries were made in certain arts, the fruits of which have come down to us, but the means by which the work was accomplished, are at this day unknown. The knowledge has been lost for ages. Yet it would hardly be doubted, if any one now discovered an art thus lost, and it was a useful improvement, that, upon a fair construction of the act of congress, he would be entitled to a patent. Yet he would not literally be the first and original inventor. But he would be the first to confer on the public the benefit of the invention. He would discover what is unknown, and communicate knowledge which the public had not the means of obtaining without his invention. Upon the same principle, and upon the same rule of construction, we think that Fitzgerald must be regarded as the first and original inventor of the safe in question. The case as to this point admits that, although Conner's safe had been kept and used for years, yet no test had been applied to it, and its capacity for resisting heat was not known; there was no evidence to show that any particular value was attached to it after it passed from his possession, or that it was ever afterwards used as a place of security for papers; and it appeared that he himself did not attempt to make another like the one he is supposed to have invented, but used a different one. And upon this state of the evidence, the court put it to the jury to say, whether this safe *had been finally forgotten or abandoned [* 498 ] before Fitzgerald's invention, and whether he was the original inventor of the safe for which he obtained the patent; directing them, if they found these two facts, that their verdict must be for the plaintiff. We think there is no error in this instruction. For, if the Conner safe had passed away from the memory of Conner himself, and of those who had seen it, and the safe itself had disappeared, the knowledge of the improvement was as completely lost as if it had Gayler v. Wilder. 10 H. never been discovered. The public could derive no benefit from it until it was discovered by another inventor. And if Fitzgerald made his discovery by his own efforts, without any knowledge of Conner's, he invented an improvement that was then new, and at that time unknown; and it was not the less new and unknown because Conner's safe was recalled to his memory by the success of Fitzgerald's. We do not understand the circuit court to have said that the omission of Conner to try the value of his safe by proper tests, would deprive it of its priority; nor his omission to bring it into public use. He might have omitted both, and also abandoned its use, and been ignorant of the extent of its value; yet, if it was the same with Fitzgerald's, the latter would not upon such grounds be entitled to a patent, provided Conner's safe and its mode of construction were still in the memory of Conner before they were recalled by Fitzgerald's patent. The circumstances above mentioned, referred to in the opinion of the circuit court, appear to have been introduced as evidence tending to prove that the Conner safe might have been finally forgotten, and upon which this hypothetical instruction was given. Whether this evidence was sufficient for that purpose or not, was a question for the jury, and the court left it to them. And if the jury found the fact to be so, and that Fitzgerald again discovered it, we regard him as standing upon the same ground with the discoverer of a lost art, or an unpatented and unpublished foreign invention, and like him entitled to a patent. For there was no existing and living knowledge of this improvement, or of its former use, at the time he made the discovery. And whatever benefit any individual may derive from it in the safety of his papers, he owes entirely to the genius and exertions of Fitzgerald. Upon the whole, therefore, we think there is no error in the opinion of the circuit court, and the judgment is therefore affirmed. M'LEAN, J. I dissent from the opinion of a majority of the judges in this case. The point of difference, I think, is essential to the maintenance of the rights of the public, and also of inventors. [* 499 ] * It was proved by James Conner, as appears from the bill of exceptions," that between 1829 and 1832 he was engaged in business as a stereotype founder, and, knowing that plaster of Paris was a non-conductor of heat, he constructed a safe with a double chest, and filled the space between the inner and outer one with plaster of Paris; the same, substantially, as testified to and claimed by Fitzgerald, except there was no plaster used on the top of the safe. It was made for his own private use in his establishment, Gayler v. Wilder. 10 H. and was used by him as a safe from the time it was made till 1838, when it passed into other hands. It was kept in the counting-room while he used it, and was known to the persons working in the foundery." This evidence was confirmed by another witness. By the sixth section of the patent act of 1836, it is provided, "that any person or persons having discovered or invented any new or useful art, machine, manufacture, or composition of matter, or any new or usual improvement on any art, machine, manufacture, or composition of matter, not known or used by others before his or their discovery or invention thereof," may apply for a patent, &c. The applicant is required to "make oath or affirmation that he does verily believe that he is the original and first inventor," &c., "and that he does not know or believe that the same was ever before known or used." The seventh section authorizes and requires the commissioner of patents "to make or cause to be made an examination of the alleged new invention or discovery; and if on such examination it shall not appear to the commissioner that the same had been invented or discovered by any other person in this country prior to the alleged invention or discovery thereof by the applicant, or that it had been patented or described in any printed publication in this or any foreign country," &c., the commissioner may grant a patent. In the fifteenth section it is provided, "that whenever it shall satisfactorily appear that the patentee, at the time of making his application for the patent, believed himself to be the 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 before known or used in any foreign country, it not appearing that the same or any substantial part thereof had before been patented or described in any printed publication." From the above extracts, it is seen that the patentee must be the inventor of the machine, or the improvement of it, or he can have no right. If the thing was known or used by others, he cannot claim a patent. Or if it was patented in a foreign country, or described in any publication at home or in any* foreign [* 500 ] country, he has no right to a patent. To this there is only the exception in the fifteenth section above cited. But this can have no influence in the present case. Let these provisions of the statute be compared with the two last paragraphs of the charge of the court, as stated in the third exception : "And said court further instructed the jury, that if they found that the use made by James Conner of plaster of Paris was confined to a |