Whitely v. Swayne,
74 U.S. 685 (1868)

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U.S. Supreme Court

Whitely v. Swayne, 74 U.S. 7 Wall. 685 685 (1868)

Whitely v. Swayne

74 U.S.(7 Wall.) 685


1. Where a patent has been granted for improvements which, after a full and fair trial, resulted in unsuccessful experiments, and have been finally abandoned, if any other person takes up the subject of the improvements and is successful, he is entitled to the merit of them as an original inventor.

2. He is the first inventor and entitled to the patent who, being an original discoverer, has first perfected and adapted the invention to actual use.

Whitely filed a bill against Swayne in the Circuit Court for Southern Ohio to enjoin the use of a certain machine known as the Kirbey Harvester.

As the case was presented in the argument, he relied upon a patent granted to one Steadman, May 23, 1854, for an improvement in clover and grass seed harvesters, which had

Page 74 U. S. 686

been assigned to him (Whitely), and surrendered, and three reissues granted to him on the 19th June, 1860.

The machine complained of and sought to be enjoined had been originally patented to one Byron Dinsmore. Dinsmore's specification was sworn to December 31, 1850, and was received at the Patent Office, January 10, 1851. His patent was issued February 10, 1852. He made and tried one of his machines in 1850, and cut some ten or twenty acres with it. In 1851 he made twenty-one of them, and between fifty of sixty of them in the following year. On the 18th of April, 1852, three months after the date of Dinsmore's patent, Steadman filed a caveat in the Patent Office in which he stated that he was engaged in making experiments for perfecting certain improvements in a machine for harvesting clover and grass seed, preparatory to letters patent therefor. As already stated, this patent was granted May 23, 1854. Besides the caveat and the patent, there was an account given in the testimony of the working of the machine by Mr. Hatch, a neighbor of Steadman's, who resided in Holley, Orleans County, New York, in 1854. The machine was tried in the neighborhood on several occasions in clover fields, but never went into successful practical operation. No machines were ever made under the patent after the first, which was about the time the patent was granted. The experiment appeared to have been wholly given up and abandoned by Steadman as a failure, and it thus remained for some six years, when the complainant (Whitely), took from him an assignment of the patent and procured the three reissues already referred to.

The bill was dismissed by the court below, and the complainant brought the case here.

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