130 F. 900 | U.S. Circuit Court for the District of Eastern Missouri | 1904
This is a demurrer to a bill for the infringement of a patent. It alleges that on July 23, 1894, James M. Hayes, under whom the complainant claims title, made an application for a patent upon his invention; that this application was rejected by the Commissioner on October 8, 1894; that afterwards Hayes presented an application for the revival of the abandoned petition, which was denied by the Commissioner; and that on April 15, 1901,
I think the bill, when fairly construed, fails to make any such averment. The second paragraph of the bill avers that James M. Hayes, heretofore and before the 23d day of July, 1894, was the true, original, and first inventor of a certain new and useful improvement in tie plates, 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 thereof, and not in public use or on sale for more than two years prior to his application for a patent therefor. In the third paragraph the bill avers that on the 23d day of July, 1894, Hayes duly made application to the Commissioner of Patents for letters patent; and, after reciting the history of that application and its final rejection, it alleges that Hayes was advised to file an entirely new application, and that on April 15, 1901, an entirely new application was filed, and that the applicant then made oath that the invention had not been in use or on sale for more than two years prior to the time that his original application was placed on file in 1894. The bill alleges that this new application was filed as a substitute for or continuation of the original application. All these averments, taken together, show that the complainant did not intend by paragraph 2 to allege that the invention of the patent had not been in public use or on sale for more than two years prior to his last application, made in 1901, but that he thereby did intend to state that his invention had not been in public use and on sale for more than two years prior to the time that his application for a patent was made, namely, that of 1894, so that the demurrer presents the question fairly as to whether the application made in 1901 was a continuance of the application made in 1894, and whether it gains any advantage from the fact that an application was made in 1894.
Act July 8,1870, c. 230, § 32, 16 Stat. 202 (section 4894 Rev. St. [U. S. Comp. St. 1901, p. 3384]), provides that:
“All applications for patents sliall be completed and prepared for examination within two years after the filing of the application, and in default thereof, or upon failure of the applicant to prosecute the same within two years after any action therein, they shall be regarded as abandoned by the parties thereto, unless it be shown to the satisfaction of the Commissioner of Patents that such delay was unavoidable.”
The bill in this case avers that Hayes presented to the Commissioner of Patents a petition for the revival of his abandoned application, and accompanied the same by what he thought were good and sufficient reasons for the formal abandonment; but the bill affirmatively avers that the Commissioner held that the reasons assigned were not sufficient to account for the delay in the prosecution of the application. It therefore clearly enough appears that Hayes did not bring himself within the protecting provision of the section just referred to. His application made in 1894 was therefore abandoned.
The' other remaining question is whether it was necessary to aver in the bill of complaint that the invention of the patent had not been
The demurrer must be sustained.
