239 F. 555 | E.D. Pa. | 1917
This proceeding involves the validity and infringement of letters patent No. 1,137,438, issued April 27, 1915, to the plaintiff as administratrix of the deceased inventor Ered. C. Wendell. The patent is for an improved ironing machine. A discussion of the many features of this case, which .might otherwise be called for, is rendered unnecessary by the finding of one fact. The application for the letters patent was filed February 1, 1913. The fact referred to is that machines embodying all the possibly inventive features of the patented machine had been commercially sold and were in public use following these sales for more than two years prior to the date of application for letters patent.
The difficulties against which the plaintiff struggled in the first place to secure the issue of these letters patent and since to assert their validity against other users are such as to make a strong appeal to the sympathies of any one whose duty it is to find the facts, and because of this predisposes the trier of the facts to make every allowance for these difficulties, and not to exact of her a higher measure of proofs than one so situated could be reasonably asked to furnish.
A proper first inquiry is into what the standard of the strength of such proofs is, and more particularly upon whom the burden of proof rests. To establish .clearly the proper application of the adjudged cases and to get a firm grasp of the controlling principles of law -which are to be deduced from the cases, certain well-defined distinctions must be kept in mind. The existence of a machine or device prior to the date of application for letters patent may have any one of several different bearings upon the question of the validity of the patent when issued. . One of the bearings may be upon the question of invention, or, more accurately speaking, upon the novelty of the device in the sense of priority of invention. The patentee must show a machine or other product of his brains which not only discloses invention, but the in
Counsel for plaintiff have made a very laudable effort to find some principle of law upon which the validity of this patent could be sustained. Supplementing their efforts, we have made a careful examination of all the cases to which we have found reference, and a close analysis of each one of them, and have been unable to find a single case which supports the contention of the plaintiff. There are cases, of course, of which Elizabeth v. Pavement Co., 97 U. S. 126, 24 L. Ed. 1000, is an illustration, which support the proposition that a purely experimental or testing use, although extending over a number of years, would not justify a finding of abandonment as a fact nor constitute a public use within the meaning of the two year provision of the patent law. This case recognizes the distinction of which it is in itself a good illustration between a public use and a use by the public. There the use was of a pavement which had been laid in a turnpike or public highway. It was, of course, used by the public traveling that highway, and was laid there for the very purpose of being subjected to such use because in no other way could the merits of a road pavement be subjected to the practical test of travel. The finding there was that, although the pavement was down for a considerable length of time, .the circumstances and surrounding conditions of its construction and of its use compelled the finding that this was neither an abandonment to the public of the invention nor a public use within the meaning of the statute. The difference in the state of facts there and in the instant case forces the conclusion that the ruling there is not authority for a like ruling here, but, on the contrary, is an authority for the opposite ruling.
There are other defenses to the validity of this patent which are as strongly urged and upon which as much stress and insistence is laid as upon that branch of the defense which we have discussed. .This defense, however, goes to the whole merits of the bill and seems to be so clearly and fully established that a discussion of other matters of defense would seem to be a waste of time.
The bill of complaint is dismissed, with costs, and a decree to this effect may be submitted.
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