Melville Fuller

“ On the other hand, where no very great strength is required, the ordinary abutted flume, as made by the plaintiff in this case, might have an advantage, and that perhaps for cheapness, and, where other conditions obtained where it could be used, perhaps a lapped flume would cover all the requirements needed, and be cheaper than either one of the others; but as a matter of law you may dismiss the whole matter of joints from your consideration, one way or the other, because specifically, it is not covered by the patent. ”

“ The jury will not consider any former flume or chute to be an anticipation unless they believe such former flume or chute developed the same mode of operation as the flume described in the plaintiff's patent.' Of course, if the patent for the completed chute described nothing which could be recognized as a patentable improvement differing from the prior lapped chute, then the objection has no bs is to rest on. The evidence leaves no doubt that the lapped chute was in public use, with Haines' consent or allowance, more than two years prior to the application for the patent. ”

“ None of these things would constitute any anticipation of the patented invention.' This instuction was open to serious objection. It was not contended that either the Cleveland flume or the Mariaville sluice had a flat bottom, nor did the description of the patent require the chute to be so construce d as to have a given amount of fall. It is not error to refuse to instruct as to an abstract question, and instructions should never be given upon hypothetical statements of fact, of which there is no evidence. ”