Joseph P. Bradley

“ It is not a public knowledge of his invention that precludes the inventor from obtaining a patent for it, but a public use or sale of it. In England, formerly, as well as under our Patent Act of 1793, if an inventor did not keep his invention secret, if a knowledge of it became public before his application for a patent, he could not obtain one. To be patentable, an invention must not have been known or used before the application ”

“ An abandonment of an invention to the public may be evinced by the conduct of the inventor at any time, even within the two years named in the law. The effect of the law is, that no such consequence will necessarily follow from the invention being in public use or on sale, with the inventor's consent and allowance, at any time within two years before his application; but that, if the invention is in public use or on sale prior to that time, it will be conclusive evidence of abandonment, and the patent will be void. ”

“ A foreign patent, or other foreign printed publication describing an invention, is no defence to a suit upon a patent of the United States, unless published anterior to the making of the invention or discovery secured by the latter, provided that the American patentee, at the time of making application for his patent, believed himself to be the first inventor or discoverer of the thing patented. ”

“ It is unnecessary here to enter into the general question of profits recoverable in equity by a patentee. The subject, as a whole, is surrounded with many difficulties, which the courts have not yet succeeded in overcoming. But one thing may be affirmed with reasonable confidence, that, if an infringer of a patent has realized no profit from the use of the invention, he cannot be called upon to respond for profits ”

“ Whatever bearing the stipulation in the assignment may have on the measure of damages, in an action at law, it affords no defence to the appellants when called upon to account for the profits which they have wrongfully made by pirating the invention.
We think there is no error in the decree of the Circuit Court, except in making the city of Elizabeth and George W. Tubbs accountable for the profits. As to them a decree for injunction only to prevent them from constructing the pavement during the term of the patent, should have been rendered ”

“ It is also clear that a patentee is entitled to recover the profits that have been actually realized from the use of his invention, although, from other causes, the general business of the defendant, in which the invention is employed, may not have resulted in profits,-as where it is shown that the use of his invention produced a definite saving in the process of a manufacture. ”

“ Wood's patent, enrolled in April, 1841, shows a pavement made of adjoining blocks fitted together, but alternately larger and smaller at the top, like the frustrum of a pyramid, and not parallel-sided; those larger at the top standing slightly higher than the others, so that when pounded down, or pressed by rollers or loaded vehicles, they would act as wedges, binding the whole pavement more tightly together. No filling is used on the surface, and no prepared foundation is suggested. ”

“ The auxiliary strip may be about half the height of the principal block; but it must not be permitted to fill up the grooves permanently and entirely, when the pavement is completed, or to perform any part of the pavement.' The strips used by the defendants are substantially the same as here described, and perform the same office. The only difference in their construction and application between the blocks is, that they are bevelled, by being made wider at the top than at the bottom,-the extra width of the top part being let into a notch or groove in the blocks. ”

“ The evidence, if it shows any thing, tends to prove that the addition diminished the profits instead of increasing them; but it could not have had much influence either way, inasmuch as the evidence shows that the profit made on this pavement was about the same as that made on the pavement of Nicholson, without the improvement. The appellants, however, obtained an allowance of nearly $14,000 for the royalty paid by them for the use of the Brocklebank & Trainer patent. ”

“ If it be a grist-mill, or a carding-machine, customers from the surrounding country may enjoy the use of it by having their grain made into flour, or their wool into rolls, and still it will not be in public use, within the meaning of the law. ”

“ It was frequently travelled by teams having a load of five or six tons, and some larger. As these teams usually stopped at the toll-house, and started again, the stopping and starting would make as severe a trial to the pavement as it could be put to.'
This evidence is corroborated by that of several other witnesses in the cause; the result of the whole being that Nicholson merely intended this piece of pavement as an experiment, to test its usefulness and durability. ”

“ These several issues, together with the question of profits, and liability on the part of the several defendants to respond thereto, are the subjects in controversy before us.
We do not think that the defence of want of novelty has been successfully made out. Nicholson's invention dates back as early as 1847 or 1848. He filed a caveat in the Patent Office, in August, 1847, in which the checker-board pavement is fully described ”

“ In one form of his pavement he describes continuous grooves, the grooves being formed of blocks which are shorter than the others; and states that the groove is to be filled with concrete, coal-tar, &c., mixed with gravel or sand: but there is no foundation described for the pavement ”