1. Under R.S. § 4886, a patent for an invention made but not
patented or published in a foreign country is good, in a suit for
infringement, against an innocent infringing use in this country
for which no patent right is claimed and which began before the
date of the application, but after the actual date of the
invention. Pp.
307 U. S. 10
et seq.
2. R.S. § 4887 contains no provision which precludes proof of
facts respecting the actual date of invention in a foreign country
to overcome the prior knowledge or use bar of § 4886. P.
307 U. S. 12.
3. R.S. § 4923, which provides that, if the patentee, at the
time of his application, believed himself the original or first
inventor, his patent shall not be refused or held void by reason of
the invention's having been known or used in a foreign country
before his invention or discovery if it had not been patented or
described in
Page 307 U. S. 6
a printed publication,
held inapplicable where the
litigation is between the patentee of a foreign invention or his
assignee and an alleged infringer who defends only in virtue of
prior knowledge or use not covered by patent. P.
307 U. S. 13.
4. Repeated amendment of sections of the Patent Laws without
alteration of provisions theretofore construed by the courts
implies legislative approval of such constructions. P.
307 U. S. 14.
5. The question whether an invention has been abandoned is one
of fact. P.
307 U. S. 15.
6. R.S. § 4920 makes abandonment an affirmative defense which
must be pleaded and proved. P.
307 U. S. 16.
Held in this case that the defense was waived by
failure to plead it in the original answer or by amendment, and
that the circumstances did not afford an excuse on the ground of
surprise.
7. Findings of the District Court to the effect that a foreign
inventor limited his application for a foreign patent to one step
of his process, and, for motives not inquired into, withheld more
essential features for future patenting, are not to be construed in
this case as meaning that he concealed the full invention and
delayed applications for the purpose of extending unduly the life
of his patents. P.
307 U. S. 15.
8. Under R.S. § 4886, a valid patent cannot issue for an
invention in public use in this country for more than two years
prior to the filing of the application. P.
307 U. S. 17.
This defense was duly pleaded in this case by denials of
negative allegations of the bill and by affirmative allegations, in
the answer. P.
307 U. S. 17.
9. The ordinary use of a machine or the practice of a process in
a factory in the usual course of producing articles for commercial
purposes is a public use within the meaning of R.S. § 4886. P.
307 U. S. 18.
So
held where the defendant had continuously employed
the allegedly infringing machine and process for the production of
lead oxide powder used in the manufacture of plates for storage
batteries which were sold in quantity, and where the machine,
process, and the product were well known to the employees in the
plant, and no efforts were made to conceal them from anyone who had
a legitimate interest in understanding them.
10. Upon finding that two of the patents sustained by the courts
below are invalid because of more than two years' public use prior
to application, the Court directs that the bill be dismissed as to
them; but, as to a third patent, not subject to that objection,
it
Page 307 U. S. 7
directs that the questions of validity in other respects and of
infringement be reexamined by the District Court. Pp.
307 U. S. 20,
307 U. S. 22.
As to Patent No. 1,584, 149, to Shimadzu, Claims 1 and 2, for a
method of forming finely divided lead powder, the cause is remanded
for further examination in regard to validity and infringement.
Patent No. 1,584, 150, to Shimadzu, Claims 1-4, 6, 8-13, for a
method or process of manufacturing a powder composed of metallic
and oxidized lead, and Patent No. 1,896,020, to Shimadzu, Claims 10
and 11, for an apparatus for the continuous production of lead
oxides,
held invalid.
98 F.2d 831 reversed.
Certiorari, 305 U.S. 591, to review the affirmance of a decree,
17 F. Supp.
42, enjoining alleged infringement of three patents and
referring the cause to a Special Master for an accounting.
MR. JUSTICE ROBERTS delivered the opinion of the Court.
The courts below have held valid and infringed certain claims of
three patents [
Footnote 1]
granted to Genzo Shimadzu, a citizen and resident of Japan. The
earliest is for a method of forming a finely divided, and
consequently more chemically reactive, lead powder. The second is
for a method or process of manufacturing a fine powder composed of
lead suboxide and metallic lead and for the product of
Page 307 U. S. 8
the process. The third is for an apparatus for the continuous
production of lead oxides in the form of a dry fine powder. Such
powder is useful in the manufacture of plates for storage
batteries.
The bill was filed by the respondents as patentee and exclusive
licensee. The answer denied that Shimadzu was the first inventor;
asserted knowledge and use of the invention by the petitioner in
the United States more than two years prior to the dates of the
applications, and pleaded that earlier patents procured by Shimadzu
in Japan avoided the United States patents as the former were for
the same inventions, and each was granted more than a year prior to
the filing of the corresponding application in this country. The
case was tried, the District Court found the facts, stated its
conclusions, and entered a decree for the respondents, [
Footnote 2] which the Circuit Court of
Appeals affirmed. [
Footnote 3]
The petitioner sought certiorari alleging that the case presents
three questions, one which should be settled by this court and two
which were decided below contrary to our adjudications.
The questions are: in an infringement suit by the owner of a
patent for an invention, made but not patented or published abroad,
to restrain an innocent use, the inception of which antedates the
application for patent, may the plaintiff prove that his actual
date of invention was earlier than the commencement of the asserted
infringing use? Is the delay of the patentee in this case in
applying for patent a bar to relief for alleged infringement? Does
commercial use of the patented process and apparatus in the alleged
infringer's plant for more than two years prior to the application
for patent preclude redress?
Page 307 U. S. 9
No controversy of fact is involved, as the petitioner concedes
it must accept the concurrent findings of the courts below.
[
Footnote 4] The relevant facts
lie within a narrow compass.
The inventions which are the basis of the patents were conceived
by Shimadzu and reduced to practise in Japan not later than August,
1919. He did not disclose the inventions to anyone in the United
States before he applied for United States patents. Application was
presented for No. 1,584,149 on January 30, 1922; for No. 1,584,150
on July 14, 1923, and for No. 1,896,020 on April 27, 1926. The
inventions were not patented or described in a printed publication
in this or any foreign country prior to the filing of the
applications. The petitioner, without knowledge of Shimadzu's
inventions, began the use of a machine which involved both the
method and the apparatus of the patents at Philadelphia,
Pennsylvania, early in 1921 and attained commercial production in
June, 1921. Over the objection of the petitioner, the respondents
were permitted by testimony, and by the introduction of
contemporaneous drawings and notebooks, to carry the date of
invention back to August, 1919, and the courts below fixed that as
the date of invention and reduction to practise in Japan.
First. The petitioner asserts that R.S. §§ 4886, 4887,
and 4923, [
Footnote 5]
considered together, require one who has made
Page 307 U. S. 10
an invention abroad to take as his date of invention the date of
his application in the United States unless, prior thereto, the
invention has been communicated and described to someone in this
country, or has been patented abroad. The respondents insist that
the sections have no such force. They say that, where the alleged
infringer is not acting under the supposed protection of a prior
patent, but is using an unpatented process or device, the holder of
a patent for a foreign invention, like the holder of one for an
invention made here, may show novelty by proving that his invention
antedated his application and the infringing use.
The solution of the issue requires examination of two of the
sections in the light of their development from earlier patent
statutes.
R.S. § 4886, as it stood when the patents were granted,
[
Footnote 6] was:
"Any person who has invented or discovered any new and useful
art, machine, manufacture, or composition of matter, or any new and
useful improvements thereof, not known or used by others (in this
country), (before his invention or discovery thereof), and not
patented or described in any printed publication in this or any
foreign country, before his invention or discovery thereof [or more
than two years prior to his application], and not in public use or
on sale [in this country] for more than two years prior to his
application, unless the same is proved to have been abandoned, may,
upon payment of the fees required by law, and other due proceeding
had, obtain a patent therefor."
The legislative history of the section may be briefly outlined.
The Patent Act of 1790 [
Footnote
7] authorized the grant
Page 307 U. S. 11
of a patent to "any person or persons" who made an invention
"not before known or used." The succeeding Act of 1793 [
Footnote 8] confined the privilege to
"a citizen or citizens of the United States," but the Act of 1800
[
Footnote 9] conferred it on
any alien who, at the time of his application, had resided for two
years within the United States. By the Act of 1836, [
Footnote 10] it was provided that a patent
might be obtained by "any person or persons." The Act of 1870,
[
Footnote 11] which was
carried into the Revised Statutes, added the words "in this
country" as they appear in the first bracket in the foregoing
quotation. The Act of 1897 [
Footnote 12] added the three other bracketed clauses.
The requirement of the Act of 1790 was that the discovery be
"not before known or used." The Act of 1793 amended this to read
"not known or used before the application." The Act of 1800 altered
the provision so that the petitioner had to swear that his
invention had not "been known or used either in this or any foreign
country." The Act of 1836 changed the knowledge and use clause to
read "not known or used by others before his or their discovery or
invention thereof."
These successive alterations throw into relief the fact that the
section makes the criterion of novelty the same whether the
invention was conceived abroad or in this country. The test is
whether the invention was "known or used by others in this country,
before his invention or discovery thereof." The elements which
preclude patentability are a patent, or a description in a printed
publication in this or any foreign country, which antedates the
invention or discovery of the applicant.
Page 307 U. S. 12
None of the statutes has ever embodied as an element the place
of invention or discovery, but the change effected by the Act of
1836, and carried forward in all succeeding statutes, is the
fixation of the actual date of the inventive act as the date prior
to which the invention must have been known or used to justify
denial of a patent for want of novelty. The omission of any
limitation as to the place of invention or discovery precludes a
ruling imposing such a limitation, especially so since the Act of
1870 expressly limited the area of prior knowledge or use to this
country.
The provisions of R.S. § 4886 which affect the question are not
modified by R.S. § 4887, the purpose of which is to permit the
filing of applications for the same invention in foreign countries
and in the United States. It derives from Section 25 of the Act of
1870. [
Footnote 13]
The second paragraph of the section, which was added by the Act
of 1903 [
Footnote 14] to
comply with reciprocal agreements with foreign countries, gives the
same force and effect to the filing of an application in a foreign
country as it would have if filed here on the date on which the
application for patent was first filed in the foreign country,
provided that the domestic application is filed within twelve
months of the foreign filing date. The last sentence of the
paragraph expressly preserves the bars of more than two years'
prior patenting, description in a printed publication before the
filing of application in this country, and public use, more than
two years before such filing. But the section does not contain any
provision which precludes proof of facts respecting the actual date
of invention in a foreign country to overcome the prior knowledge
or use bar of § 4886.
The petitioner also relies upon R.S. § 4923, which provides
that, if the patentee, at the time of his application,
Page 307 U. S. 13
believed himself the original or first inventor, his patent
shall not be refused or held void by reason of the invention's
having been known or used in a foreign country, before his
invention or discovery, if it had not been patented or described in
a printed publication. The effect of this section is that in an
interference between two applicants for United States patent, or in
an infringement suit where the alleged infringer relies upon a
United States patent, the application and patent for the domestic
invention shall have priority despite earlier foreign knowledge and
use not evidenced by a prior patent or a description in a printed
publication.
The section, on its face, is without application where the
litigation is between the patentee of a foreign invention, or his
assignee, and an alleged infringer who defends only in virtue of
prior knowledge or use not covered by a patent.
While this court has never been called upon to decide the
precise question presented, the lower federal courts have refused
to extend § 4923 to such a case. They have held that § 4886 does
not limit the plaintiff to the date of application in this country,
but that he may prove the invention was in fact made at an earlier
date, as could the owner of an invention made in the United States.
[
Footnote 15]
There is force in the petitioner's argument that the distinction
seems illogical. Thus, if a diligent domestic inventor applies, in
good faith believing himself to be the first inventor, Section 4923
assures him a patent and gives it priority, despite prior foreign
use, even though that use is evidenced by a patent applied for
after the invention made in this country. The foreign applicant or
patentee
Page 307 U. S. 14
cannot carry the date of his invention back of the date of
application in this country, as the holder of a later patent for an
invention made here would be permitted to do in order to establish
priority. On the other hand, a domestic inventor who is willing to
dedicate his invention to the public may be held as an infringer by
reason of the later patenting of an invention abroad which
antedates the invention and use in this country, and so is put in a
worse position
vis a vis a foreign inventor who
subsequently secures a patent, and succeeds in establishing an
earlier date of invention, than he would occupy if he had promoted
his own interest by procuring a patent.
We have no way of knowing whether the discrimination results
from inadvertence or from some undisclosed legislative policy, but,
in order to redress the disadvantage under which one in the
petitioner's situation suffers, we should have to read into the law
words which plainly are missing. [
Footnote 16] We cannot thus rewrite the statute.
[
Footnote 17] Moreover,
Sections 4886 and 4887 have repeatedly been amended, and other
portions of the patent act have been revised and amended from time
to time since the decisions pointing out that Section 4886 did not
prevent the foreign inventor from carrying back his date of
invention beyond the date of his application. Congress has not seen
fit to amend the statute in this respect, and we must assume that
it has been satisfied with, and adopted, the construction given to
its enactment by the courts. [
Footnote 18]
Page 307 U. S. 15
We are of opinion that the courts below were right in not
limiting Shimadzu's date of invention to the date of his
application, but allowing him to show an earlier actual date.
Second. A patent is not validly issued if the invention
"is proved to have been abandoned." [
Footnote 19] Abandonment may be evidenced by the express
and voluntary declaration of the inventor; [
Footnote 20] it may be inferred from negligence
or unexplained delay in making application for patent; [
Footnote 21] it may be declared as a
consequence of the inventor's concealing his invention and delaying
application for patent in an endeavor to extend the term of the
patent protection beyond the period fixed by the statute. [
Footnote 22] In any case, the
question whether the invention has been abandoned is one of fact.
[
Footnote 23]
Referring to a Japanese patent applied for November 27, 1920,
and issued May 10, 1922, the District Court found:
"We are not concerned with the motives which prompted him . . .
to confine it [the Japanese patent] to the single step of
mechanical removal of the dust from the drum, and to withhold the
really essential steps of the invention for later patenting. It is
sufficient to say that he had the right to do this if he
chose."
Taken in connection with the court's finding that Shimadzu's
inventions were conceived and reduced to practise in August, 1919,
this finding is said to convict him of intentional and inexcusable
concealment. In the light of the record, we are unable so to
hold.
Page 307 U. S. 16
R.S. § 4920 [
Footnote 24]
makes abandonment an affirmative defense which must be pleaded and
proved. [
Footnote 25]
Admittedly the defense was not pleaded, and the respondents assert,
without contradiction, that it was not relied upon in brief or
argument in the courts below. The petitioner explains its failure
so to plead by saying that, when it filed its answer, it believed
that certain of the Japanese patents issued to Shimadzu covered the
identical inventions described in the patents in suit and
invalidated the latter because application was not made in this
country within one year of the grant of the foreign patents, as
required by R.S. § 4887. The claim is that the refusal to sustain
this defense and the assignment of August, 1919, as the date of
invention took petitioner by surprise, and that the question of
Shimadzu's concealment of his invention from 1919 until he made his
applications in the United States did not emerge until the District
Court's decision was rendered.
We think this is not a sufficient excuse for not pleading the
defense. Alternative and inconsistent defenses may be pleaded.
[
Footnote 26] Certainly, if
the petitioner was surprised, it could at least have requested an
opportunity to amend its answer. If the defense had been pleaded
originally or by amendment, the respondents would have had an
opportunity to meet it by proof, and this they appear not to have
been afforded. We have a finding which seems not to have been
addressed to this issue, and no findings as to the circumstances
which led to the delay in filing applications. In the
circumstances, we think we are not justified in assigning to the
findings below the force of a finding that Shimadzu, with intent,
concealed
Page 307 U. S. 17
his invention and delayed making applications for the purpose of
unduly extending the life of his patents -- a defense not
pleaded.
Third. If a valid patent is to issue, the invention
must not have been in public use in this country for more than two
years prior to the filing of the application. [
Footnote 27] Such public use is an affirmative
defense, to be pleaded and proved. [
Footnote 28] The respondents insist that it was not
pleaded in this case, and that the findings respecting the defense,
on which the petitioner relies, are unsupported by the evidence. We
cannot agree with either position.
Although not required so to do, the respondents, in their bill,
pleaded with respect to each of the patents that the invention had
not been in public use for more than two years before application
filed. The petitioner denied the allegation as to each patent and,
in addition, alleged that it was successfully making and selling
the product of the invention in its plant long before it ever
learned of Shimadzu's existence or his inventions, and further
asserted that
"the claims of said letters patent are invalid and void because
the subject matter thereof was, prior to the alleged invention
thereof by Shimadzu, and for more than two years prior to his
application dates, known to and used by the defendant at
Philadelphia, Pennsylvania. . . ."
Upon the trial, employees of the petitioner described an early
apparatus and process used in 1918 and 1919 and abandoned in the
latter year when experiments began towards employment of the
apparatus and process the petitioner now uses. They testified to
the increasing perfection of the apparatus and process during the
early months of 1921, and that commercial production was
accomplished sometime between
Page 307 U. S. 18
April and June of that year. Former employees of the petitioner
were called by the respondents and described this apparatus and
process as used and practised in the petitioner's plant in
Philadelphia subsequent to the date of Shimadzu's applications, but
the evidence indicates that, after its perfection in 1921, the same
apparatus has been used, and the same process practiced, from that
date to the present. This is the apparatus and process which the
courts below have held to infringe. The District Court found,
"commercial production by the Hardinge mill with its forced air
draft undoubtedly involved the use of the plaintiff's patent, and
June, 1921, may be fixed as the date when that began."
The respondents insist that this does not amount to a finding of
prior public use, distinguishing between the court's phrase
"commercial production" and the designation "public use" found in
the statute. We think the position is untenable.
The finding of the District Court appears under a heading in its
opinion entitled "Alleged Prior Public Use." As originally
promulgated, the finding fixed January, 1921, as the date of
commercial production. The respondents sought a rehearing, and
asked that the finding as to commercial production in January 1921
be revised. A rehearing was granted, and the District Judge filed a
memorandum amending his opinion. In this he said:
"As to the second statement of fact, it may be said at once that
it was never intended by the Court to make a finding of a prior
public use (in the statutory sense of that term) by the defendant
in January, 1921."
After discussing the use of the apparatus in the early months of
1921, the court said:
"It is therefore plain that there is no evidence of anything
beyond an experimental use by the defendant earlier than about the
middle of the year 1921. It is entirely possible that the word
'January' in
Page 307 U. S. 19
the second statement of fact referred to above is a mere
typographical error, and that what the Court had in mind was
'June.' However that may be, and in order to avoid any possible
misunderstanding as to the scope of the finding, I will amend it to
read"
"Commercial production by the Hardinge mill with its forced air
draft undoubtedly involved the use of the plaintiff's patent, and
June, 1921, may be fixed as the date when that began."
Both parties appealed to the Circuit Court of Appeals. That the
respondents understood the force and effect of the finding as to
prior use is evident from their assignments, one of which is that
the District Court erred
"in finding and adjudging that commercial production by the
Hardinge mill with its forced draft involving the use of
plaintiff's patent began in June 1921."
It remains to determine whether the commercial use found is, in
contemplation of law, a public use within the meaning of R.S. §
4886. We hold that it is.
The earlier Acts provided that the bar should consist in public
use or sale "with the applicant's consent or allowance prior to the
application." [
Footnote 29]
The Act of 1839 [
Footnote
30] altered the clause to read "no patent shall be held to be
invalid" except upon proof that "such . . . prior use has been for
more than two years prior to such application for a patent." This
Court construed the later Act, which has been carried forward into
the revised statutes, as rendering prior public use a bar whether
the use was with or without the consent of the patentee. [
Footnote 31]
Decisions turning on prior public use have been numerous both in
this court and in other federal courts, and the definition of such
use, formulated when the statute made only use by consent a bar,
has been adopted in
Page 307 U. S. 20
instances where the use was without consent or knowledge of the
applicant for patent. [
Footnote
32]
A mere experimental use is not the public use defined by the
Act, [
Footnote 33] but a
single use for profit, not purposely hidden, is such. [
Footnote 34] The ordinary use of a
machine or the practise of a process in a factory in the usual
course of producing articles for commercial purposes is a public
use. [
Footnote 35]
In the present case, the evidence is that the petitioner, since
June, 1921, has continuously employed the alleged infringing
machine and process for the production of lead oxide powder used in
the manufacture of plates for storage batteries which have been
sold in quantity. There is no finding, and we think none would have
been justified, to the effect that the machine, process, and
product were not well known to the employees in the plant, or that
efforts were made to conceal them from anyone who had a legitimate
interest in understanding them. [
Footnote 36] This use, begun more than two years before
Shimadzu applied for patents 1,584,150 and 1,896,020, invalidated
the claims in suit.
Fourth. The defense of prior public use is not made out
against patent 1,584,149, for which application was
Page 307 U. S. 21
filed January 30, 1922. The defendant's commercial production
commenced about six months earlier. The District Court held the
patent valid and infringed. Its claims cover merely a process for
the production of a finely divided chemically reactive lead powder
by introducing relatively large masses of lead into a rotatable
vessel, rotating the vessel at a relatively low speed, forming the
powder by attrition resulting from the rubbing of the masses
against each other, and blowing the powder from the vessel by a
current of air. The process and apparatus covered by the other two
patents in issue involve use and control of an air current and use
and control of temperature within the receptacle for the oxidation
of the lead. With respect to 1,584,149, the trial court said:
"Whether or not '149 is for the same process as U.S. patent '150
is immaterial so far as the question of validity of either is
concerned. There is no double patenting involved. The two patents
issued on the same day. They both expired on the same day. There
can be no extension of the monopoly, and one is not prior art
against the other."
"The fact that '149 does not disclose the oxidizing function of
the air or refer to the highly important element of the process
having to do with the temperature control necessary to its
successful operation might throw doubt upon its validity in view of
the prior art. This is, of course, upon the assumption that it is
not for the same invention as '150. The whole matter, however, is
rather academic, since '149 is coincident in duration with '150,
and the defendant's process infringes the somewhat more precise, if
not narrower, claims of '150."
"This patent is therefore held valid and infringed."
The holding was assigned as error in the Circuit Court of
Appeals and is specified as error in the petition for
certiorari.
Page 307 U. S. 22
In view of our decision as to 1,584,150 and of the basis of the
decision below respecting 1,584,149, we think the petitioner is
entitled to a reexamination of the questions of the validity and
infringement of the latter.
The decree of the Circuit Court of Appeals must be reversed, and
the cause remanded to the District Court with directions to dismiss
the bill as to Nos. 1,584,150 and 1,896,020, and to proceed, in the
light of the dismissal as to those patents, to determine whether
1,584,149 is valid and infringed.
Reversed.
[
Footnote 1]
Patents Date granted Claims
1,584,149 . . . . . . . 5/11/1926 . . . . . 1 and 2
1,584,150 . . . . . . . 5/11/1926 . . . . . 1-4, 6, 8-13
1,896,020 . . . . . . . 1/31/1933 . . . . . 10 and 11
[
Footnote 2]
17 F. Supp.
42.
[
Footnote 3]
98 F.2d 831.
[
Footnote 4]
At the trial, the respondents relied to some extent upon an
adjudication in an interference proceeding between Shimadzu and
Hall, an employee of the petitioner who, in 1924, applied for a
patent for a process of producing finely powdered mixed lead and
lead oxide.
See Hall v. Shimadzu, 59 F.2d 225. The courts
below have held that this interference has no bearing upon the
present controversy, and their holding in this respect involves
questions of fact. As the respondents did not cross-petition, they
may not, in this court, attack the findings in question.
[
Footnote 5]
U.S.C. Tit. 35, §§ 31, 32, 72.
[
Footnote 6]
The section was amended by the Act of May 23, 1930, c. 312, § 1,
46 Stat. 376, to authorize the patenting of inventions of certain
plants.
[
Footnote 7]
Act of April 10, 1790, § 1, 1 Stat. 109.
[
Footnote 8]
Act of Feb. 21, 1793, § 1, 1 Stat. 318.
[
Footnote 9]
Act of April 17, 1800, § 1, 2 Stat. 37.
[
Footnote 10]
Act of July 4, 1836, § 6, 5 Stat. 117, 119.
[
Footnote 11]
Act of July 8, 1870, c. 230, § 24, 16 Stat. 198, 201.
[
Footnote 12]
Act of March 3, 1897, c. 391, § 1, 29 Stat. 692.
[
Footnote 13]
§ 25, 16 Stat. 201.
[
Footnote 14]
Act of March 3, 1903, § 1, c. 1019, 32 Stat. 1226.
[
Footnote 15]
Hanifen v. E. H. Godshalk Co., 78 F. 811;
Welsbach
Light Co. v. American Incandescent Lamp Co., 98 F. 613;
Badische Anilin & Soda Fabrik v. Klipstein & Co.,
125 F. 543;
Claude Neon Lights, Inc. v. Rainbow Light,
Inc., 47 F.2d 345.
[
Footnote 16]
The petitioner would have us insert in § 4886, for the third
time, the words "in this country" which Congress has twice inserted
in the section by amendment. The petitioner's argument requires us
to read the section as if the phrase "in this country" appeared
between the words "discovery thereof" and the words "and not
patented."
[
Footnote 17]
Dewey v. United States, 178 U.
S. 510.
[
Footnote 18]
Sessions v. Romadka, 145 U. S. 29,
145 U. S. 41-42;
Manhattan Properties, Inc. v. Irving Trust Co.,
291 U. S. 320,
291 U. S. 336;
United States v. Elgin J. & E. Ry. Co., 298 U.
S. 492,
298 U. S. 500;
Missouri v. Ross, 299 U. S. 72,
299 U. S.
75.
[
Footnote 19]
R.S. § 4886,
supra.
[
Footnote 20]
Kendall v.
Winsor, 21 How. 322,
62 U. S. 329;
U.S. Rifle & Cartridge Co.
v. Whitney Arms Co., 118 U. S.
22,
118 U. S. 25.
[
Footnote 21]
Consolidated Fruit-Jar Co. v. Wright, 94 U. S.
92,
94 U. S. 96;
U.S. Rifle & Cartridge Co. v. Whitney Arms Co., supra,
p.
118 U. S. 25.
[
Footnote 22]
Kendall v. Winsor, supra, p.
62 U. S. 328;
Macbeth-Evans Glass Co. v. General Electric Co., 246 F.
695;
Bliss Co. v. Southern Can Co., 251 F. 903;
Victor
Talking Machine Co. v. Starr Piano Co., 281 F. 60.
[
Footnote 23]
Pennock v.
Dialogue, 2 Pet. 1,
27 U. S. 16.
[
Footnote 24]
U.S.C. Tit. 35, § 69.
[
Footnote 25]
Crown Cork & Seal Co. v. Gutmann Co., 304 U.
S. 159,
304 U. S. 165.
Compare Mumm v. Decker & Sons, 301 U.
S. 168,
301 U. S.
171.
[
Footnote 26]
Jones v. Sewall, 13 Fed.Cas. 1017, 1028, No. 7,495;
Specialty Brass Co. v. Sette, 22 F.2d 964, 966;
Walsh
v. Wable Co., 25 F.2d 350, 351.
[
Footnote 27]
R.S. § 4886,
supra.
[
Footnote 28]
R.S. § 4920,
supra; Klein v. Seattle, 63 F. 702;
Hookless Fastener Co. v. Rogers Co., 26 F.2d 264.
[
Footnote 29]
Act of July 4, 1836, § 7, 5 Stat. 117, 119.
[
Footnote 30]
Act of March 3, 1839, § 7, 5 Stat. 353, 354.
[
Footnote 31]
Andrews v. Hovey, 123 U. S. 267,
on rehearing, 124 U. S. 124 U.S.
694.
[
Footnote 32]
Detroit Lubricator Co. v. Lunkenheimer, 30 F. 190;
United States Electric Lighting Co. v. Edison Lamp Co., 51
F. 24, 28;
Front Rank Steel Furnace Co. v. Wrought Iron Range
Co., 63 F. 995, 998;
A. Schrader's Sons, Inc. v. Wein
Sales Corp., 9 F.2d 306, 308;
Twyman v. Radiant Glass
Co., 56 F.2d 119;
In re Martin, 74 F.2d 951;
Paraffine Cos. v. McEverlast, 84 F.2d 335;
Becker v.
Electric Service Supplies Co., 98 F.2d 366.
[
Footnote 33]
Elizabeth v. Pavement Co., 97 U. S.
126,
97 U. S.
134.
[
Footnote 34]
Consolidated Fruit-Jar Co. v. Wright, supra,
94 U. S. 94;
Egbert v. Lippmann, 104 U. S. 333,
104 U. S.
336.
[
Footnote 35]
Manning v. Cape Ann Isinglass & Glue Co.,
108 U. S. 462,
108 U. S. 465;
Twyman v. Radiant Glass Co., supra; Paraffine Co. v. Everlast,
supra, pp. 338, 339.
[
Footnote 36]
Compare Hall v. Macneale, 107 U. S.
90,
107 U. S.
96.