Act of April 10, 1799, ch. 33, repealed.Secretary of State, signifying a desire of obtaining an exclusive property in the same, and praying that a patent may be granted therefor, it shall and may be lawful for the said Secretary of State, to cause letters patent to be made out in the name of the United States, bearing teste by the
is limited to a few persons, or even to the first inventor himself, or is kept a secret by the first inventor. Reed v. Cutter, 1 Story’s C. C. R. 590. See Stone v. Sprague, 1 Story’s C. C. R. 270.
Infringement of a Patent Right.—By the provisions of the act of Congress of April 17, 1800, citizens and aliens as to patent rights, are placed substantially on the same ground. In either case, if the invention was known or used by the public before it was patented, the patent is void. Shaw v. Cooper, 7 Peters, 292.
No matter by what means an invention may have been communicated before the patent was obtained: any acquiescence by the inventor in the public use, will be an abandonment of the right. If the right were asserted by him who fraudulently obtained it, perhaps no lapse of time could give it validity. But the public stand in an entirely different relation to the inventor. This right would be secured by giving public notice that he was the inventor of the thing used, and that he should apply for a patent. Ibid.
A strict construction of the act of Congress, as it respects the public use of the invention, is not only required by its letter and spirit, but sound policy. Ibid.
The question of abandonment by the inventor does not depend on the intention of the inventor. If without any intention, he suffers his invention to go to the public, he has no right to a patent. Ibid.
Under the patent act of 1793, if the patentee has sold out a moiety of his patent, a joint action lies by his vendee and himself, for a violation of the patent. Whittemore v. Cutter, 1 Gallis. C. C. R. 429.
By the term “actual damage,” which the plaintiff may recover under the patent law, is meant such damages as he can actually prove, and has in fact sustained as contradistinguished from mere imaginary or vindictive damages, which in personal torts are sometimes given. Ibid.
If there be a mere making, and no use proved, nominal damages are to be recovered. The rule of damages, if the use of the machine be proved, should be the value of the use of the machine during the time the use was proved. Ibid.
In an action for the infringement of a patent right, the law gives to a plaintiff treble the actual damages sustained by him; and the rule is to allow him treble the amount of the profits actually received by the defendant, in consequence of his using the plaintiff’s invention. Lowell v. Lewis, 1 Mason’s C. C. R. 182.
The jury are to find single damages, and the court are to treble them. Gray et al. v. James, Peters’s C. C. R. 394.
A patent may be for a new combination of machines to produce certain effects; and this, whether the machines constituting the combination be new or not. But in such a case, the patent being for the combination only, it is no infringement of the patent to use any of the machines separately, if the whole combination be not used. Barrett et al. v. Hall et al., 1 Mason’s C. C. R. 447.
Where a party claims several distinct, independent improvements in the same machine, and procures a patent for them in the aggregate, he is entitled to recover against any person who shall use any one of the improvements so patented, notwithstanding there shall have been no violation of the other improvements. Moody v. Fiske et al., 2 Mason’s C. C. R. 112.
The jury may, in an action for the infringement of a patent, give the plaintiff, as a part of his actual damages, such expenses for counsel fees, &c., as have been actually incurred in vindicating his right by suit, and which are not taxable in the bill of costs. Boston Manufacturing Company v. Fiske et al., 2 Mason’s C. C. R. 119.
A patentee of an invention, notwithstanding he had given away his invention to another, may recover for the violation of his patent; not having assigned away his whole title and interest in it, and no deed of assignment having been recorded in the office of the Secretary of State. Parke v. Little, 3 Wash. C. C. R. 196.
Proceedings and Pleadings in actions for the violation of Patent Rights.—In the case of a rule before the district judge, to show cause why a patent should not be repealed, a record is to be made of the proceedings antecedent to the rule to show cause why process should not issue to repeal the patent, and upon which the rule was granted. Ex parte Wood and Brundage, 9 Wheat. 603; 5 Cond. Rep. 702.
The proceedings under the 10th section of the act of 1793, are in the nature of a scire facias at common law, to repeal a patent. Stearns v. Barrett, 1 Mason’s C. C. R. 163.
The scire facias in such a case ought to contain a direct allegation or suggestion that the patent was obtained surreptitiously or upon false suggestion; and to call upon the defendant for that cause only, to show cause why the patent should not be repealed. Ibid.
On an application for an injunction to restrain the infringement of a patent right, it should be stated in the bill, or by affidavit, that the complainant is the inventor, and the bill must be sworn to: it is not sufficient that this fact was sworn to when the patent was obtained. Sullivan v. Redfield, Paine’s C. C. R. 441. See Cutting v. Meyers, 4 Wash. C. C. R. 220. Pettibone v. Derringer, 4 Wash. C. C. R. 215. Dixon v. Moyer, 4 Wash. C. C. R. 68.
In an action for a violation of a patent right, it is sufficient, under the plea of the general issue, to give notice that the plaintiff is not the inventor of the machine for which the patent has been obtained, if that constitutes the defence; without stating in the notice who was the inventor, or who had previously used the machine. Evans v. Kremer, Peters’s C. C. R. 215. See Prouty v. Reynolds, 16 Peters, 336.
In an action for an infringement of a patent right, evidence that the invention of the defendant is better than that of the plaintiff, is improper; except to show a substantial difference between the two inventions. Alden v. Dewey, 1 Story’s C. C. R. 336.
Evidence in actions for the violation of Patent Rights.—Under the sixth section of the patent law of Feb. 1793, the defendant pleaded the general issue and gave notice that he would prove at the trial, that the machine for the use of which, without license, the suit was brought, had been used previous to the alleged invention at several places which were specified in the notices or some of them, and also at sundry other places in Pennsylvania, Maryland, and elsewhere, in the United States. The defendant having given evidence as to some of the places specified; held, that evidence as to the other places was admissible, but
