Joseph P. Bradley

“ In cases of patents for inventions, a valid defense, not given by the statute, often arises where the question is whether the thing patented amounts to a patentable invention. This being a question of law, the courts are not bound by the decision of the commissioner, although he must necessarily pass upon it. ”

“ If the principles of the opinion in the present case are sound, then, in every case where an action at law is brought, the jury must sit in judgment on the action of the commissioner of patents, as to the existence of laches, where that is alleged; and as there may be a dozen jury trials in suits against as many different parties for infringing the same patent, each jury deciding on its own impression of the evidence before it, the question of the validity of the reissue can never be settled, nor the patentee or the public know whether his patent is valid or worthless. ”

“ The public has the undoubted right to use, and it is to be presumed does us, what is not specifically claimed in the patent. Every day that passes after the issue of the patent adds to the strength of this right, and increases the barrier against subsequent expansion of the claim by a reissue under a pretense of inadvertence and mistake. If any such inadvertence or mistake has really occurred, it is generally easily discernible by an inspection of the patent itself, and any unreasonable delay in applying to have it corrected by a surrender and reissue is a just bar to such correction. ”

“ In such case, the government which issued the patent, by its attorney general or other proper officer, in a court of competent jurisdiction, obtains a decree setting the patent aside, whereby it is rendered of no avail against all persons interested in the matter, as well as the government. ”

“ The question of laches-of undue delay in making application to correct 'a mistake, accident, or inadvertence,' by reason of which the patentee does not get the full benefit of his invention-must depend on many circumstances which cannot appear on the face of the reissued patent. No mistake can be corrected until it is discovered. ”

“ If the specification is complicated, and the claim is ambiguous or involved, the patentee may be entitled to greater indulgence; and of this the court can rightfully judge in each case. No precise limit of time can be fixed and laid down for all cases. The courts will always exercise a proper liberality in favor of the patentee. ”

“ In the original patent it is stated that the nature of the invention consists-First, in the employment of a new stitch, called the double herring-bone secured stitch, whereby only one stitch can be broken at a time; second, in the employment of a binder of leather next the yarn of a base-ball, or as a first cover to other round articles, so stitched and put on that the outer covering when applied shall have its seams at right angles, or breaking joints, with the seams of the first cover ”

“ Wood Paper Patent, Id. 566; and many other subsequent cases. The same defense may be established by showing from the record that there was no inadvertence, accident, or mistake in drawing up the specification of the original patent; for the statute only gives a reissue when the original is defective by inadvertence, accident, or mistake. Thus, in Leggett v. Avery, 101 U.S. 259, the reissued patent embraced a claim which had been presented on the application for the original patent and rejected. ”

“ This is constantly done in land cases where patents have been issued which the land officers had no authority to issue; as, where the lands have been previously granted, reserved from sale, or appropriated to other uses. ”