| U.S. Circuit Court for the District of Southern New York | Oct 15, 1846
.The ■ plaintiffs have an injunction, granted on their bill of complaint. The defendants move to -discharge it, on affidavits; and unless their proofs overcome the equity of the bill, and the evidence supporting it, the motion must
The study of the courts has recently been, and especially since the patent acts of 1836 and 1839 15 Stat. 117,333], to carry out the protection of the law to inventors, so as to secure to them the full benefit of their inventions. . An inventor ■ is bound to notify the public of his claim, by a caveat or application filed at the patent office, designating his discovery, and what he means to secure to himself. This is a matter often of nicety, and men of great experience encounter difficulties in preparing their papers. Correspondence ensues between the officers at Washington and the patentee, which consumes time. But if the claim thus put forward, although originally informal, be followed up with reasonable diligence, and if, eventually, the patent is granted, it prevents any right being acquired by strangers interfering in the mean time. Here, the first ap- ' plication, the claim to the invention, was •made on the 13th day of'February. It was again made on the 23d of March, and the papers were retained by the patent office until the 22d of June. They were then sent to New-York, and returned, with other and correct papers, on the 14th of July, and the patent in suit was granted on the 24th of July. It is not for the court now to examine critically the correctness or even sufficiency of the application; as it was made to all appearance in good faith, and was an attempt. to make known and secure the claim.
It is next contended that Berry was the inventor and not the plaintiffs; which position,, if established, would be a good ground to dissolve the injunction. The defendants lay before the court the declarations of Berry, in connection with his working without any draft, design or model before him, which, the defendants insist, proves him to be the inventor. But, on the other hand, Mr. Kelsey details very minutely the suggestions he made, his superintendence, his suggesting alterations in a design got up, his disapproving that, and the adoption of his views in the design now patented. And Mr. Berry gives his own account of the matter, and explains the declarations attributed to him, as referring to his working without a copy before him, and to the design being an original and not a copy. He does not intimate that he did not receive suggestions, alterations and directions from Mr. Kelsey, which were carried out in this design. To constitute an inventor, it is not necessary he should have the manual skill and dexterity to make the drafts. If the ideas are furnished by him, for producing the result aimed at. he is entitled to avail himself of the mechanical skill of others, to carry out practically his contrivance. Here the devising of the pattern, in this sense, appears to have been by the plaintiffs.
Again. It is contended that the plaintiffs have abandoned their claim, or so dealt with it as to give it to the public. This, if made out, would also entitle the defendants to succeed. They first rely on the sale to Smith, who gave an order for goods on seeing the pattern, in January, which the plaintiffs agreed to execute. But an inventor may do this. He may stipulate for a sale of his invention, before it is completed, without vitiating his claim; and these goods were not delivered until after the application of the 13th of February was filed in the patent office.
It is urged, also, that Bice & Sampson purchased goods of the pattern in question, at Baltimore, in April, and applied at Washington to know if it was patented, and were informed that it was not. This was true. But they do not say that they inquired if a patent had been applied for, and whether an application was pending. There was then an application there, with a specimen of the drawing of the design. If the commissioner or the officers had even overlooked it, that would not have defeated the plaintiffs’ right. They had, in good faith, made their claim, and were at the time following it up, and eventually matured it. The sale did not defeat the right to the design.
It also appears that when the goods were shown in January, they were shown as the patent goods, or the registered patterns of the plaintiffs. Now, although registered patents or patterns is not a term of law, yet it may well have indicated a pattern as claimed to be of their design, and one for which they were preparing to-take out a patent. •
The defendants have not made out a case to dissolve the injunction, and the motion must be denied, with costs.
[For hearing on a motion for an attachment for an alleged violation of the injunction, see Case No. 13,209.]