PARTY.

See CORPORATION, 2.

PATENT FOR INVENTION.

1. An assignee in bankruptcy is not bound to accept the title to a patent
for an invention, vested in the bankrupt at the time of the bankruptcy,
if, in his opinion, it is worthless, or may prove to be burdensome and
unprofitable; and his neglect for a year, during which he winds up
the estate, to assume the ownership of such property, and his state-
ment to a person desiring to purchase it that he has no power to do
anything with it and that the bankrupt is the only one who can give
title, are convincing proof of an election not to accept it. Sessions v.

Romadka, 29.

2. It does not lie in the mouth of an alleged infringer of a patent to set up
the right of an assignee in bankruptcy to the patent as against a title
acquired from the bankrupt with the consent of the assignee. Ib.
3. Section 4917 of the Revised Statutes, which provides for disclaimers
"whenever, through inadvertence, accident or mistake, and without
any fraudulent or deceptive intention, a patentee has claimed more
than that of which he was the original or first inventor or discoverer,"
and allows the patentee to "make disclaimer of such parts of the thing
patented as he shall not choose to claim or hold by virtue of the patent
or assignment, stating therein the extent of his interest in such
patent," is broad enough to cover disclaimers made to avoid the effect
of having included in a patent more devices than can properly be
made the subject of a single patent. Ib.

4. The power of a patentee to disclaim is a beneficial power, and ought
not to be denied except when resorted to for a fraudulent and decep-
tive purpose. Ib.

5. The effect of delay by a patentee to make a disclaimer under Rev. Stat.
§ 4917 until after the commencement of an action for the infringe-
ment of his patent goes only to the recovery of costs. Ib.

6. Where the Revised Statutes adopt language of a previous statute which
had been construed by this court, Congress must be considered as
adopting that construction. Ib.

7. The invention patented by letters patent No. 128,925, issued July 9,
1872, to Charles A. Taylor for an improvement in trunks was novel
and patentable; and the letters patent are infringed by the fasteners
constructed in accordance with the descriptions in letters patent No.
145,817, dated December 23, 1873, and the improvements thereon
described in letters patent No. 163,828, dated April 10, 1875, both
issued to Anthony V. Romadka. Ib.

8. The pioneer in an art, who discovers a principle which goes into almost
universal use, is entitled to a liberal construction of his claim. Ib.
9. When a patented invention is infringed by its use upon another article

of which it forms an inconsiderable part, taking the place of some-
thing previously serving the same uses, and there is no established
royalty by which to measure the damages, they may be ascertained by
finding the difference between the cost of the patented article and the
cost of the article which it displaces; but this rule may be modified if
law and justice seem to require it. Ib.

10. When it is doubtful from the evidence whether the word "patented"
could be affixed to a manufactured article, or whether a label should be
attached with a notice of the patent, under the provisions of Rev.
Stat. § 4900, the judgment of the patentee is entitled to weight in
determining the question. Ib.

11. A defendant in a suit for the infringement of letters patent, who relies
upon a want of knowledge on his part of the actual existence of the
patent, should aver the same in his answer.

lb.

12. When an assignee in bankruptcy refuses to accept a transfer of a right
of action existing in the bankrupt at the time of the bankruptcy, and
abandons it to the bankrupt before the expiration of the time within
which an assignee in bankruptcy could bring suit upon it, the right of
action of the bankrupt and of a purchaser from him are governed by
the general statute of limitations, and not by the rule prescribed for
an assignee in bankruptcy. Ib.

13. Letters patent No. 108,085, issued October 11, 1870, to John B. Augur
for an improvement for gearing in wagons was not anticipated by the
invention patented to C. C. Stringfellow and D. W. Serles, by letters
patent No. 31,134, dated January 15, 1861, and are valid, so far as that
invention is concerned. Topliff v. Topliff, 156.

14. It is not sufficient, in order to constitute an anticipation of a patented
invention, that the device relied upon might, by modification, be made
to accomplish the function performed by that invention, if it were not
designed by its maker, nor adapted, nor actually used for the perform-
ance of such function. Ib.

15. In view of the extensive use to which the invention secured to John
H. Topliff and George H. Ely by letters patent No. 122,079 for an
improvement in connected carriage springs, reissued March 28, 1876,
No. 7017, the invention secured thereby is held to have patentable
novelty, although the question is by no means free from doubt. Ib.
16. The first reissue of that patent, being to correct a palpable and gross
mistake, and being made within four months after the date of the
original patent, was within the power of the Commissioner of Patents.
lb.

17. The second reissue of that patent is valid, whether it be an enlarge-
ment of the original patent or not. lb.

18. Miller v. Brass Co., 104 U. S. 350, was not intended to settle a principle
that under no circumstances would a reissue containing a broader
claim than the original be supported. Ib.

19. The power to reissue a patent may be exercised when the original

patent is inoperative by reason of the fact that its specification was
defective or insufficient, or the claims were narrower than the actual
invention of the patentee, provided the error has arisen from inad-
vertence or mistake, and the patentee is guilty of no fraud or decep-
tion; but such reissues are subject to the following qualifications:
(1) That it shall be for the same invention as the original patent, as
such invention appears from the specification and claims of such
original; (2) That due diligence must be exercised in discovering the
mistake in the original patent, and that, if it be sought for the pur-
pose of enlarging the claim, the lapse of two years will ordinarily,
though not always, be treated as evidence of an abandonment of the
new matter to the public to the same extent that a failure by the
inventor to apply for a patent within two years from the public use
or sale of his invention is regarded by the statute as conclusive evi-
dence of an abandonment of the patent to the public; (3) That this
court will not review the decision of the Commissioner upon the ques-
tion of inadvertence, accident or mistake, unless the matter is manifest
from the record; but that the question whether the application was
made within a reasonable time is, in most, if not in all such cases, a
question of law for the court. 1b.

20. Objections to a master's report should be taken in the court below;
and if not taken there, cannot be taken here for the first time. Ib.
21. The allowance of an increase of damages, under the statute, to the
plaintiff in a suit for the infringement of letters patent rests somewhat
in the discretion of the court below, and its finding on this point will
not be disturbed unless the evidence clearly demands it. Ib.
22. The first claim of reissued letters patent No. 3204, granted to George
Asmus, November 24, 1868, for an improvement in blast furnaces,
on the surrender of original letters patent No. 70,447, granted to F.
W. Lürmann, of Osnabruck, in Prussia, November 5, 1867, namely,
"A blast furnace with a closed breast, where the slag is discharged
through an opening or openings cooled by water, substantially as set
forth," is invalid, because there was nothing in the original specifica-
tion indicating that any such claim was intended to be made in the
original patent, although the application for the reissue was made less
than a year after the original patent was granted; and because, as
respected that claim, the reissue was not for the same invention as the
original patent, and was, therefore, within the express exception of
the statute (act of July 4, 1836, c. 357, § 13, 5 Stat. 122). Freeman v.
Asmus, 226.

23. The cases in this court on the subject of reissues, reviewed. Ib.
24. The fact commented on, that the application for the reissue was not
signed or sworn to by the inventor, but only by the assignee of the
patent. lb.

25. Letters patent No. 241,321, granted May 10, 1881, to Charles H. Dunks
and James B. Ryan, for improvements in swing woven-wire bed-bot-

toms, are invalid for want of patentability; all that was done being to
suspend a fabric well known as a bed-bottom in substantially the
same manner that other fabrics used for that purpose had been sus-
pended. Ryan v. Hard, 241.

26. The machine manufactured under letters patent No. 347,043, issued
August 10, 1886, to John H. Horne for "new and useful improvements
in rag engines for beating paper-pulp" is an infringement of the first
claim in letters patent No. 303,374, issued August 12, 1884, to John
Hoyt, for a rag engine for paper making. Hoyt v. Horne, 302.
27. Whether it infringes the second claim in Hoyt's patent is not de-
cided. Ib.

PAYMENT.

See NATIONAL BANK.

PLEADING.

See LIMITATION, STATUTES OF;
PATENT FOR INVENTION, 11.

PRACTICE.

1. This case having been submitted on briefs, the submission was set
aside by the court, and an oral argument ordered. When the case
was reached neither party appeared by counsel, but an offer was again
made to submit on the briefs. The court thereupon ordered the case
dismissed for want of prosecution in the manner directed by its previ-
ous order; but subsequently this dismissal was set aside on motion,
and argument was heard. Ficklen v. Shelby County Taxing District, 1.
2. For reasons stated in the motion, the court grants a motion to submit
this case, when received in regular call, without printing the record.
Oregon Railway & Navigation Company v. Oregonian Railway Company,

52.

-

3. The court, being informed that the control of both the corporations
parties to this suit, had come into the hands of the same persons, but
that there was a minority of stockholders in the Amador Medean Gold
Mining Company who retained the interest that they had at the time the
decision was rendered that the two corporations were still in exist-
ence and organized and that the present managers and owners of
the properties were anxious that the question should be decided, in
order that the minority of the stockholders might receive whatever,
by the finding of the court, would be due to them, reverses the judg-
ment and remands the case for further proceedings in conformity to
law, without considering or passing upon the merits of the case in any
respect. South Spring Hill Gold Mining Co. v. Amador Medean Gold
Mining Co., 300.

4. A demurrer to a petition upon the ground that it does not set out a
cause of action without taking notice of the fact that the suit is

brought in the wrong district, is a waiver of objection on account of
the latter cause. Texas & Pacific Railway Co. v. Cox, 593.

1. F., a half-breed of the Sioux nation, received in 1857 a certificate of
land-scrip under the treaty of July 15, 1830, 7 Stat. 328, and under
the act of July 17, 1854, 10 Stat. 304, c. 83, which enacted that “no
transfer or conveyance of any of said certificates or scrip shall be
valid." In March, 1860, she executed a power of attorney in blank,
and a quitclaim deed in blank, the name of the attorney, the descrip-
tion of the land, and the name of the grantee in the deed being
omitted. These came into the possession of P., on the payment of
$150, who inserted the name of R. as attorney, and his own name as
grantee, and a tract of 120 acres in Omaha, of which he was already
in possession but without valid title, as the description. The deed
was then delivered to him by R. and was put upon record. P. never
informed F. of this location, or of the record of these several instru-
ments, but remained in possession of the located tract, either person-
ally or through his grantees. Congress, on the procurement of P.,
confirmed his title to the tract. 15 Stat. 186, c. 240; 269, c. 21. The
half-breed was ignorant of all this until August, 1887, when the Sioux
Indians became citizens of the United States by virtue of article 6 of
the treaty of April 29, 1868, 15 Stat. 637. In 1888 the representatives
of F., who had deceased, filed a bill in equity against P., setting forth
these facts; averring that the power of attorney and quitclaim deed
had been fraudulently procured by some persons unknown, and pray-
ing that P. should be decreed to have taken the title in trust for F.,
and that the power of attorney and the quitclaim deed should be
declared to be fraudulent and a cloud upon plaintiff's title, and that
the defendants be directed to surrender the estate to plaintiffs. To
this the defendants demurred, and the court below dismissed the bill.
Held, (1) that P. was chargeable with notice that the power and the
quitclaim deed were intended as devices to evade the law against the
assignment of the scrip, and that he acquired no title through them;
(2) that he acquired no additional rights through the confirmatory
acts of Congress; (3) that having no right to locate the scrip for his
own benefit, he must be deemed to have located it for F. and as her
representative; (4) that this implied trust did not prevent him from
taking and holding possession of the land adversely to her, and for his