The Statute of 1870 enacts, that "any person who has invented or discovered any new and useful art, machine, manufacture or

(b) Morton v. N. Y. Eye and Ear Infirmary, 2 Fish. 890.

(c) Grant v. Raymond, 6 Peters, 241; Ames v. Howard, 1 Sumn. 486. The patentee must be the first, as well as the original, inventor, to be entitled to the protection of the statute. His title rests entirely on the priority of his invention.

•257 bb composition of matter, or any new and useful improvement thereof, not known or used by others in this country, and not patented or described in any printed publication in this or any foreign country, before his invention or discovery thereof, and not in public use or on sale for more than two years prior to his application, unless the same is proved to have been abandoned," may obtain a patent therefor. The patentee must be the first as well as an original inventor, to be entitled to the protection of the statute. His title rests entirely on the priority of his invention. (d) But he need not have been the first to conceive the idea embodied in the in66 vention. (dd) And it is held that * a prior invention, to avoid a subsequent patent must have been a working machine, which either has done work or was certainly capable of doing it, and not a mere machine got up for purposes of experiment. (de)

(d) Woodcock v. Parker, 1 Gall. 439; Bedford v. Hunt, 1 Mass. 304; Parker v. Stiles, 5 McLean, 61; Allen v. Blunt, 2 Wood. & M. 140.

(dd) Story, J., said: "The law is that whoever first perfects a machine is entitled to a patent, and is the real inventor, although others may previously have had the idea, and made some experiments toward putting it in practice." Washburn v. Gould, 8 Story, 122. So in Parkhurst v. Kinsman, 1 Blatchf. 488, Nelson, J., says: "It is not enough, to defeat a patent already issued, that another conceived the possibility of effecting what the patentee accomplished. To constitute a prior invention, the party alleged to have produced it must have proceeded so far as to have reduced his idea to practice, and embodied it in some distinct form. It must have been carried into practical operation; for he is entitled to a patent, who, being an original inventor, has first perfected the invention and adapted it to practical use. Crude and imperfect experiments, equivocal in their results, and then given up for years, cannot be permitted to prevail against an original inventor who has perfected his improvement and obtained his patent." And in Goodyear v. Day, 2 Wall. Jr. 288, Grier, J., says: "The invention when perfected may truly be said to be the culminating point of many experiments, not only by the inventor, but by many others. He may have profited indirectly by the unsuccessful experiments and failures of others; but it gives them no right to claim a share of the honor or profit of the successful inventor. It is when speculation has been reduced to practice, when experiment has resulted in discovery, and when that discovery has been perfected by patient and continued experiments, - when some new compound, art, manufacture, or machine has been produced, which is useful to the public, that the party making it becomes a public benefactor, and entitled to a patent." See also Whiteley v. Swayne, 7 Wall. 6*85; Agawam Co. v. Jordan, ibid. 688; Foote v. Silsby, 1 Blatchf. 445; Reed v. Cutter, 1 Story, 595; Howe v. Underwood, 1 Fish. 160; Singer v. Walmsley, ibid. 558; Un. Man. Co. v. Lounsbury, 2 Fish. 889; White v. Allen, ibid. 440.

(de) Woodman v. Stimpson, 8 Fish. 98; Swift v. Whesen, id. 348; Gaboon v. Ring, 1 Clif. 692. But it need not have been put into actual use, if it can be already proved that it would practically answer the purpose for which it was designed. Coffin v. Ogden, 8 Fish. 640. See Parker v. Hulme, 1 Fish. 44. " Desertion of a prior invention consisting of a machine never patented, may be proved by showing that the inventor after he had constructed it, and before he had reduced it to practice, broke it up as something requiring more thought and experiment, and laid the parts aside as incomplete, provided it appears that these acts were done without any definite intention of resuming his experiments, and of restoring the machine with a view of applying for letters-patent." Seymour v. Osborne, 11 Wall. 652; Johnson v. Root, 2 Clif. 128; Cahoon v. Ring, 1 Clif. 612. In Gayler v. Wilder, 10 How. 477, which was a suit upon a patent for a fire-proof safe, it was proved that long before the

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And the inventor may employ mechanics to embody his ideas, and may avail himself of their suggestions as to form and details, if the plan of the invention be his own. (df)

The statute further provides, that its having been first patented in a foreign country shall not prevent or avoid a patent in this country, unless it shall have been introduced into public use in the United States for more than two years prior to the application. But the patent granted here shall expire at the same time with the foreign patent. (e)

By an "abandonment" of the invention, is meant a * public use of it with the knowledge and assent of the ee inventor. If he had knowledge of such use, his assent is implied from his silence, or the absence of all effort to prevent its use. And both his knowledge and acquiescence may be shown by circumstances leading to that conclusion. (f) plaintiff's invention a safe had been made on the same principle; but it appeared that no test of its capacity for resisting heat was ever made, that the inventor never made a second one, and after using this one for some years, laid it aside for one of different construction. The jury were instructed that if, on the evidence, they found that the first safe had been finally forgotten or abandoned before the plaintiff's invention, and if he was an original inventor, he was entitled to a verdict. This direction was supported by a majority of the Supreme Court, who regarded the second inventor as standing upon the same ground with the discoverer of a lost art, or an unpatented and unpublished foreign invention. See also Hall v. Bird, 6 Blatchf. 438; Walton v. Potter, 4 Scott, N. R. 91, Webst. Pat. Cas. 585. On the question how far the suggestions of others to the patentee will affect his title, Nelson, J., says: "In order to invalidate a patent on the ground that the patentee did not conceive the idea embodied in the improvement, it must appear that the suggestions, if any, made to him by others, would furnish all the information necessary to enable him to construct the improvement. In other words, the suggestions must have been sufficient to enable him to construct a complete and perfect machine. If they simply aided him in arriving at the useful result, and if, after all the suggestions, there was something left for him to devise and work out by his own skill and ingenuity, then he is in contemplation of law to be regarded as the first and original discoverer." Pitts v. Hall, 2 Blatchf. 220; Alden v. Dewey, 1 Story, 338; Thomas v. Weeks, 2 Paine, 102; O'Reilly v. Morse, 16 How. 111.

(df) Sparkman v. Higgins, 1 Blatchf. 200; Watson v. Bladen, 4 Wash. 682; Allen v. Rawson, 1 M. G. & Scott, 661.

(e) Stat. 1870, § 25. Bartholemew v. Sawyer, 1 Fish. 616.

(f) Pennock v. Dialogue, 2 Pet 16; Shaw v. Cooper, 7 Pet. 320; Kendall v. Winsor, 21 How. 329; Melius v. Silsbee, 4 Mass. Ill; Sargent v. Seagrave, 2 Curt 666; Sanders v. Logan, 2 Fish. 167. Prior to the act of 1839, any sale or public use of the invention prior to the application for letters-patent, with the consent or acquiescence of the inventor, was sufficient to defeat his claim. Since the passage of that act a patentee may make, and vend, or use his invention within two entire years before he applies for a patent, without necessarily abandoning his right But any person who may have purchased of the inventor, or, with his knowledge and consent, constructed, sold, or used the article invented, prior to the application for a patent, shall have the right to use, and vend to others to be used, the specific thing so made or purchased. Act 1870, §§ 24, 87. McClurg p. Kingsland, 1 How. 202; McCormick v. Seymour, 2 Blatchf. 264. An abandonment may still be made within the two years, but it would seem to require strong proof to establish it. Thus, in Pitts v. Hall, 2 Blatchf. 247, it was held that a mere expression of intention not to take out a patent is not of itself equivalent to an actual dedication. The public use of

The longer the period of its public use and of his silence, the stronger the presumption of abandonment. But no particular time is necessary to constitute abandonment.

A similar statement may be made concerning the extent of the use, as whether by one person, a few, or many.

If an inventor is not yet ready to take out his patent, he may protect himself against subsequent inventors by filing a caveat in the secret archives of the patent-office. If any person applies for a patent for the same invention within one year, the caveator will have notice; and he may renew his caveat from year to year. The description of the invention in the caveat, need not be so technically precise as in a specification, but it must enable the examiners to judge whether there be an interference, if a subsequent application is filed.