34 F. 753 | U.S. Circuit Court for the District of Southern New York | 1888
This is a demurrer in an action at law for tho infringement of letters patent No. 80,441, dated July 28,1868, for an improvement in copper-lined bath-tubs. Two.grounds of demurrer are assigned: (1) That the complaint, of which the letters patent are made a jiart, by profert, does not state facts sufficient to constitute a cause of action, because it is apparent on the face of the patent that it does not contain a patentable invention. (2) That the complaint does not state that the invention had not been in public use or sale in this country for more than two years before the date of the application. It avers that the invention was not, at the time of the application, in public uso, or on sale with the consent or allowance of the inventor, contrary to the provisions of the statute of the United States.
The first ground of demurrer raises the question whether tho described improvement is so obviously the result of a mere exercise of mechanical skill that the patent is void upon its face, and must be adjudged to be invalid. It is well settled that, in a bill in equity for the infringement
The second ground is founded* upon the decision in Andrews v. Hovey, 123 U. S. 267, 8 Sup. Ct. Rep. 101, which was affirmed upon rehearing. Id. 676. That the effect of the seventh section of the act of March 3, 1839, (5 St. 359,) was “to take away the right (which existed under the act of 1836) to obtain a patent after an invention had for a long period of time been in public use without the consent or allowance of the inventor. It limited the period to two years, whether the inventor had or had not consented to or allowed the public use.” The supreme court then decided that a patent could not properly be granted, under the act of 1839, for an invention which was in public use or on sale for more than two years prior to the application therefor; and it seems that, in regard to patents 'which tvere issued under that act, the same necessity exists for the averment that the invention was not in public use or on sale for the specified period which has existed in regard to patents which have