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Wheeler, J. : 1. The reissued letters patent No. 4.14:3 (Division A), granted to Helen M. Ingalls, October 4, 1870, for an improvement in postmarking and canceling stamp, the original patent having been granted to Marcus P. Norton, April 14, 1863, and reissued to Jacob SUavor and A. C. Corse, August 23, 1864, and reissued to M. P. Norton, August 3, 1869, declared valid. 2. The judgment of the Commissioner of Patents in disbarring a solicitor for surreptitiously placing a copy of a caveat ill the official files extends only to the exclusion of the solicitor, and not to the effect of the paper as evidence in pais, although its effect upon the instrument as a caveat of record might be greater. 3. Where a document is introduced in evidence by a defendant to prove admissions by the inventor inconsistent with his claim, such document is legitimate evidence according to what should appear its just weight, as well as tho.se facts in favor of the inventor as to such as are against him. 4. Although the weight of evidence might be in the defendants' favor if the question as to prior use of the invention were to be determined upon a fair balance of proof and upon the parol evidence alone, still, in order to defeat the patent by showing an invention prior to a clearly established one of the patentee, it must be as clearly established to the extent at least of removing ail fair and reasonable doubts. 5. By the provision of the act of 1836, section 15, it was only public use or sale with the consent and allowance of a patentee before the applcation for a patent that would defeat the patent. The act of 1839, section 7, did not change the character of the public use or sale that would defeat a patent, but provided that no patent should be held in valid hy reason of them unless such purchase, sale, or prior use has been for more than two years prior to such application for patent." 6. The defense of public use for more than two years prior to the filing of the application upon which the patent was granted must be clearly proven. A private use for testig the invention, and informing the inventor as to its perfection and usefulness, with the design on his part all the while to procure a patent, will not sustain such defense. 7. If the reissues of an original patent are for any other or substantially different invention from that described in such original patent, they are unquestionably void; but the fact that the specifications or claims are different, the inven tion or discovery remaining the same, is of no consequence. 8. If a form of a device embraced in a reissued patent had not been mentioned in the original patent, it might well be said not to have formed any part of the conception of the inventor, but if described m such original patent, although referred to as not being so useful or desirable in the combination as another form of such device, it might nevertheless be properly embraced by the reissued patent. 9. It is doubtless true that a reissue of a patent to a person not the owner would not affect the title of the owner, The reissue and title should go together to make a good title to the reissue, or at least the reissue should be consented to by the true owner. 10. The defense that the plaintiff's title fails because one 1 of the parties through whom such title is derived did not own the patent when it was surrendered by and reissued to , him was sought to be sustained by showing that a certain ; instrument of writing was forged by such party by placing ' it before and attaching it to the genuine execution of another ' and a different instrument. It appearing that the parties whose assignment such instrument purported to be had knowingly acted under the same: Held, tbatthis ratified and confirmed the instrument as good from the beginning. 11. A conveyance executed by the signature of a company with seal, and by S., president, and another seal, is a good execution both for the company and for S. individually. 12. It appearing that the conveyance was one expressly in trust, upon condition that the plaintiff should have the sole management of the trust until a fair, just, and reasonable settlement shoftld be had with the United States for the use of the invention in the postal service of the United States by the Post Office Department: Held, that as no such settlement had been made the limitation in the conveyance had not expired, and the right to bring suit for infringement was in the plaintiff. . 13. The grant of letters patent for an invention is exclusive throughout the United States, and reserves no right to the Government to use the same. Unlted States Circuit Court-- Southern District of New York. CAMPBELL VS. JAMES et al.--PATENT CANCELING STAMP. Wheeler,-J .: 1.. The bill charged infringement by defendant while the patent was owned by plaintiff's assignee, and set forth in verba the assignment of the patent, together with all the right, interest, and claim for and to the past use of said invention and improvement under the said letters patent, and prayed for an injunction and for an increase of damages, in addition to the profits and gains to be accounted for by the defendant, together with such other and further relief as shall be agreeable inequity. Held, that the assignment which was proved by the instrument itself applied to infringement before as well as after assignment, and that the plaintiff was entitled to recover under such bill without doing violence to any of the well- settled rul es 0f 1l1eading: 2. It is now well settled that savings in cost by infringement of a patent may be recovered as profits. (Cciwood Patent, 94 U 695; Elizabeth v. Pavement Company, 97 U. S., 126.) 3. An exception to the Master's report that the defendant might have used other forms of canceling stamps which would not have infringed, and that the saving by using plaintiff's invention instead of such other stamps would have been much less than that reported, overruled, it not appearing that any such other form was known to defendant or that the use of the same would not also have been an infringement. 4. An exception taken to the Master's report on the ground that plaintiff's device is one which can be used only by the postal service, which is wholly monopolized by the Government, which couid send letteiG without postmarking them, or could lessen the frequency of the mails so that the postmarking could be done separately from the cancellation of the stamps by the old method without increase of clerical force, thus leaving the invention subject as to use and value entirely to the will of the Post Office Department, so that the use of it in the postal service would not deprive the owner of any opportunity to have it used otherwise and could not damnify him, and that, therefore, no damage can be recovered in the case, and that no profits can be recovered because there is no party before the court or that can be brought before the court who has received any, overruled, it appearing that the Post Office Department required the mails to be sen t Vith certain frequency, and that the stamps should be canceled and the letters marked separately, and required that the defendant should do this either himself or by the employment c 'jlerks to be paid by him out of the surplus revenues of his office. 5. Neither the official character of the defendant nor the fact that he turned over to the Government thesavings made by the use of the patented invention can shield him against the owner of the patent. 6. The circuit courts have jurisdiction of all questions concerning the title to a patent and the right to recover for infringement of the same under the patent laws of the United States, irrespective of whether the parties to a suit are citizens of the same or different States. 7. Conveyances pendente lite do not at all affect the litigation as between the parties to the original controversy unless there are special statutes or circumstances to 'control; but courts of justice, even courts of law, and especially courts of equity, often protect the rights of the real owners to the fruits of a recovery as against those who are nominal not real owners whenever their rights may have been acquired. 8. All interests in patents are assignable by an instrument in writing. No particular form is required; but still tliere must be some operative words expressing at least an intention to assign in order to constitute an assignment. 9. An instrument which makes no allusion to a patent further than to mention a claim for the me of the invention embraced therein cannot act to carry the patent. The fact that it was recorded in the Patent Office cannot make it an instrument of title, but could only complete its effect if it was one. | 10. It is not important in equity proceedings for every purembraces more than one letter. 7. While it is true that the Jest of infringement in respect to the claim in a design patent is the same as in respect to a mechanical patent, it is not essential to the identity of the design that it should be the same to the eye of an expert. 8. If to the eye of the ordinary purchaser the designs are substantially the same, if the resemblance is such as to deceive such an observer and sufficient to induce him to purchase one supposing it to be the other, the one first patented is infringed by the other. ABSTRACT. The record in this case shows that the patent is for an alleged new and useful design for jewelry of the various kinds specified in the description given in the specification. It consists of the letters of the alphabet, shown by photographic illustrations, which are of a rustic pattern ornamented by leaves, the claim being for sleeve bvittons and other jewelry, composed of the letters of the alphabet, and having the described ornamentation of letters, substantially as given in the description and shown in the photographic illustration accompanying the application for a patent. Rustic letters are employed, by which is meant, as the complainants allege, letters in which the necessary lines in the same represent the branches or trunks of trees unstripped of their bark, the ornamentation consisting of several separate leaves placed at intervals upon the lines of each letter, the lines exhibiting the appearance of the bark of a branch or trunk of a tree, which design is used for ornamenting buttons, studs, lockets, and other articles of jewelry. Photographs of the improvement were taken directly from gold sleeve but tons having leaves upon the letters in actual relief as given in the descriptive portion of the specification. Sufficient appears to show that the complainants were jewelers, and that for a series of years they had been endeavoring to produce an initial letter sleeve button which would be more ornamental and better suited for ladies' wear. Proofs were introduced showing many such experiments and giving a history of the eiforts to that end, and an account of the time and expenses incurred for its accomplishment, all of which resulted finally in producing the patented design. Experienced witnesses testify that they know of no otherdesign relating to this class of goods which has been as successful as the subject of the patent in controversy, and the court is convinced that the inventioii is highly acceptable to the public and profitable to the patentee. Inventors may, if they can, keep their inventions secret, and if they do it is a mistake to suppose that any delay to -apply for a patent will forfeit their right to the same or present any bar to a subsequent application. Nor does any different rule prevail in the case of a design patent. Delay less than for the period of two years constitutes no defense in any case; but the respondents may allege and prove that the invention in question had been in public use or on sale more than two years prior to the application of the party 'for a patent, and if they allege and prove that defense they are entitled to prevail in the suit. Due allegation in that regard is made in this case; but the record contains no proof to support it, and - it must be overruled. From all which jt follows that the patent is a good and valid' patent, and that the complainants, if they have proved the .alleged infringement, are intitled' to a decree h their favor. for tile. profits made by the respondents in the' violation ' of their: exclusive right to make, use, and vend the improvement secured by the letters patent. 1880 SCIENTIFIC AMERICAN, INC 342 [November 27, 1880. Both the testimony of the complainants' expert and the comparison of the exhibits made by the court are decisive that the manufacture by the respondents is, iu the sense of the patent law, substantially the same as that of the complainants, which shows that the complainants are entitled to an account. Decree for complainants. By the Commissioner of Patents. (..4ppeal from the Examinera-in-Chief.) MCTAMMATJY JE., VS. NEEDHAM--AUTOMATIC MUSICAL INSTRUMENTS. Marble, Commissioner: 1 It is not necessary that an applicant, in order to defeat a patent, should show that he conceived the invention and reduced the same to practice before the time at wh ich such invention was conceived by the patentee. 2. To defeat the rights of a patentee it is sufficient to show that he had surreptitiously and unjustly obtained the patent for that which was in fact invented by another who was using reasonable diligence in adapting and perfecting th e sam e." 3. Diligence in perfecting an invention is a relative matter, and the law does not require that an inventor who is engaged in developing a number of improvements at the same time should devote all his time and energy to any one at the expense of others. 4. When an applicant has once reduced an invention to practice the question of diligence in applying for a patent is one between him and the public, and can only enter as an element in the question whether the completed invention was abandoned by him to the public. they will be apparent to those understanding the requirements of telephonic communication. the Waukeag is in magnificent ore, which grows richer and richer with every additional foot of depth. the Milton at a depth of 160 feet, and the Grant at 100, are on the eve of NOVEL METHOD OF PRECIPITATING RAINFALLS. cutting their respective ledges. Further east, at Goulds-A patent has recently been issued to Daniel Ruggles, of | boJ'' thfe tconcentrafing mill is abT; to demonstrate Bhe Fredericksburg, Va., for a method of precipitating rain storms, which, judging from a well known precedent, is not Destruction of a Lighthouse by an Earthquake. Telegraphic information has been received at the Hydro-graphic Office, Admiralty, from the officer commanding the naval forces in the Dutch East Indies, that the stone lighthouse on First Point (Tanjong Koelong), Java, the south point of entrance to the Strait of Sunda, separating Java and Sumatra, has been thrown down by a violent earthquake.
