| U.S. Cir. Ct. | Jan 30, 1880
The evidence in the original case tended to show that Dodge made a few stoves, embodying his invention, in the autumn of 1854; that he was not fully satisfied with the iron part of the work, and caused it to be cast more care
Upon the rehearing two more sales of stoves, one to Hun-' toon, and one to Patch, are proved to have been made by Dodge more than two years before February 14, 1857; but in that sold to Huntoon the inner panels of soap-stone appear to have been made of the full length of the frame, while the patent describes them as being cut shorter to allow for expansion upward. The defendants have introduced evidence that there is no need of shortening the inner lining, because soap-stone does not expand upward; and the plaintiff has evidence that it does or may expand in that direction. However this fact may be, this stove appears to have been made in what Dodge thought an imperfect form, and, therefore, may be held not a sale of the invention. Draper v. Wattles, 16 Off. Gaz. 629.
The inventor is dead, and the terms and particulars of the sale of the Patch stove are not proved; and I think it possible that, if the new evidence had been before Judge Shep
In my opinion the evidence tends to show a sale of the invention. True, some sales were conditional; that is to say, the stoves were to be returned if they were not satisfactory to the buyers; but this does not, without further explanation, prove that they were experimental. It may show that the purchaser had doubts about the article, but does not prove any on the part of the seller. Sales in the usual course of business, whether absolute or conditional, if they are sales of the patented thing, work a forfeiture. A single sale has this effect, as well as a hundred sales. It is very unlikely that a buyer would take what he understood to be an experimental thing; but if he did, the evidence should be unequivocal that a test of the invention was one of the purposes of the seller. This article could be tested by the inventor as well in his own house as in any other place; and when he sold it in its completed form, though with warranty or on condition, he sold it.
Upon the facts, the stove appears to have contained the invention, within the doctrine of Am. Hide, etc., Co. v Am. Tool Co. 1 Holmes, 503, 513, in which Judge Shepley charged that the thing sold need not be perfect in the mechanical sense, but only in that it embodied the completed invention in a form which would be operative. Indeed, this stove appears to have been perfect in both senses, for it has been in successful use for about twenty-four years.
Judge Shepley found that the sales in evidence before him were made while the inventor was still conducting experi
But, further, I do not find the fact to be that the inventor was still experimenting. As I read the evidence, all that Dodge was then trying to do was to bring his stoves into the highest state of mechanical perfection. The precise day of the Patch sale is not proved; but it was in December, 1854, and the stove had upon it the words “registered for patent, 1854,” which confirms the conclusion that it was after the invention was complete.
Neither filing the model, nor writing the paper commonly called an application, gives the date of the application from which the two years are to be reckoned. “Application,” in this connection, includes the paper, or some written paper, and its presentation to the commissioner. One who desires a patent for his invention may apply in writing to the commissioner. There is no evidence that any writing accompaMed the model, and none that any application was made until February 14, 1857. It would be most dangerous to hold that an application signed and kept in the inventor’s pocket would answer the demand of the statute. In Birdsall v. McDonald, 6 Off. Gaz. 682, cited for the plaintiff, the solicitor neglected to file the application, and the court held that his neglect was not evidence of the inventor’s abandonment of his invention. On the point of sale Mr. Justice Swayne says: “He sold no machine prior to two years before the filing of his application.” As to filing the model see Draper v. Wattles, 16 Off. Gaz. 629.
The time allowed for the use and sale of the invention is
I find that this invention was “on sale” more than two years before the application, and therefore the patent was void. The patent having been sustained at the first hearing, the complainant should have his costs to the time when the rehearing was ordered. Of the rehearing itself I give no costs to either party.
Decree accordingly.