John McLean

“ The court must take as true the statements of witnesses as they are made, and lay down the law on the assumption of their credibility, and both court and jury must take an agreed or addmitted uncontested state of facts to be their rule of action; a jury may deem a witness unworthy of credit, or not believe his statement, but ought to do neither without good cause. Whether the defects in the old patent arose from inadvertence or otherwise is also a mixed question of law and fact,-of law so far as depends on written, and of fact as to parol evidence ”

“ The plaintiff submits that the seventh and ninth sections of the act of 1837 bear on his case, by analogy. They permit a patentee who has patented too much, and more than he invented, to make disclaimer of the excess, with the same effect, as regards the validity of the patent, as if his disclaimer were part of his original specification. ”

“ The charge of infringement, in the declaration, is laid some years after the new patent, so that the question does not arise, whether an action could be sustained for a violation of the right prior to the corrected patent. The above proviso would seem to be susceptible of but one construction; and that is, that the patentee may sustain an action 'for any use or violation of his invention after the grant of the new patent.' Now it is plain that no prior use of the defective patent can authorize the use of the invention after the emanation of the renewed patent under the above section. ”

“ Matheys, C. C. MSS. To authorize a recovery for the violation of a patent right, the plaintiff must show that he is the inventer of every thing he claims so claimed and patented has in the patent, and that every thing so chaimed and patented has been infringed by the defendant; thus, where the patent is for a particular combination of the parts of an old machine, and the defendant has not used the whole combination as specified in the description, and carried into the summary, the plaintiff cannot recover. ”

“ If the thing patented is the same in both patents, its public use did not, under the former laws, amount to an abandonment, or such an acquiescence as to affect the new patent on the ground of delay or negligence in the assertion of the right of the patentee, from the date of the old patent to its reissue. ”

“ This section, which has no reference to renewed or amended, more than to all other, patents, is believed to provide for a case, till 1839 unprovided for; namely, the case in general, whether it arise under an original patent, or under one which has been amended, or which has been modified by disclaimer of the use by a defendant, after the issuing of the letters, of a machine such as they patent, but which specific machine was purchased or constructed before their date. ”

“ The plaintiff in the Circuit Court is the plaintiff in error in this court. The verdict in the Circuit Court was for the defendants.
2. The action was brought to recover damages for an alleged infringement by the defendants of an exclusive right, alleged to belong to the plaintiff, to make, use, construct, and vend an improvement 'in the mode of turning short curves on railroads,' of which he claimed to be the original inventer, and alleged to have been secured to him by letters patent of the United States, according to the acts of Congress. ”

“ The seventh section of the act of March 3, 1839, provides, 'that every person or corporation who has, or shall have, purchased or constructed any newly invented machine, &c., prior to the application by the inventer, &c., for a patent,' may use and vend it at all times, without liability to the inventer or any person, &c. ”

“ Such construction is the more reasonable, when it is considered that the protection is confined to the specific machine used before the patent, and cannot be extended to protect the use of any new or other machine, or construed to invalidate the patent, or justify the subsequent use by any other persons than those so protected. ”

“ I lay a flat rail, which, however, may be grooved, if preferred, at the commencement of the curvation, and in a position to be centrally under the flanches of the wheels upon the outer track of the circle, so that no other part of the wheels which run upon the outer circle of the track rails shall touch or bear upon the rails, but the peripheries of the flanches ”

“ This allusion to the groove, in the first patent, the learned judge rules, in his charge, to be insufficient, and in the paragraph ante, pp. 387, 388, after so holding, he goes on to declare, that the groove should have been 'claimed.' It may be mentioned that it is not claimed in the new patent, nor even alluded to in the summary of the specification; so collateral is it to the invention. ”

“ Also, the learned judge's taking from the jury the question, which came fairly up as a question of fact, namely, whether this mention of, or allusion to, the groove was or was not too slight a description of that part of the combination to enable one skilled as an engineer to make a curve, or to stand for a compliance, by the patentee, with the requisition of the statute touching the proper description of the invention. ”

“ Stimpson. The only difference is, that Mr. Wright proposes to adapt his cars to several different curves by having three or more offsets in his wheels when necessary.
On the same day, namely, the 23d of August, 1831, Stimpson took out, also, letters patent for an improvement in the mode of forming and using cast or wrought-iron plates or rails, for railroad carriage-wheels to run upon. ”