Page:Federal Reporter, 1st Series, Volume 9.djvu/300

KELLS V. m'kenzie. 285 �This was a suit upon reissued letters patent Nos. 8,867 and 8,127, for im- provements in brick machines. 0£ reissue No. 8,867 defendants were cliarged with having infringed the following claims: �(1) A horizontal brick or tile machine, constructed with a tub supported at its ends in the standards ; and with a nose-piece or die-holder on the front extension. (2) The combination of the front standard, supporting the ex- tremity o£ the tub, a nose-piece attaclied directly to said standard, and a die secured to the nose-piece ; all substantially as herein described. �Of reissue No. 8,127 they were charged with having infringed seven claims, not necessary to be here set forth. �Thomas S. Spraguc, for complainant. �George H. Lothrop, for defendants. �Beown, D. J. The machine described in complainant's modal and specifications consista of a horizontal tub of iron, supported by two standards, one at the front and one at the rear end, bolted together 80 as to prevent the pressure of the clay from forcing them apart. Upon the rear end of the tub is a hopper for receiving clay, and through its center is a shaft armed with blades set in a spiral position, the revolution of which not only puddles the clay but forces it forward through the tub and through a nose-piece, at the end of which are inserted dies for the moulding of the clay in proper shape as it passes out of the machine. Behind the rear standard are two cog-wheels used for turning the shaft. �The first objection taken to reissue No. 8,867 is that it is not for the same invention as that covered by the original patent, and is therefore void. To determine this question it is necessary to consider with some care what the powers of the commissioner are with respect to reissuing patents, and to draw the line (often a very difficult task) between that which is and that which is not the same invention, By the ufty-third section of the aet of 1870 (Eev. St. § 4916)— �"Whenever any patent is inoperative or invalid, by reason of a defeetive or insufflcient specification, or by reason of the patentee claiming as his own invention or diseovery more than he had a right to claim as new, if the error has arisen by inadvertence, accident, or mistake, and without any fraudulent or deceptive intention, the commissioner shall, on the surrender of such patent and the paymeut of the duty required by law, cause a new patent for the same invention, or in accordance with the corrected specifications, to be issued to the patentee, etc. * * * But no new matter shall be introduced into the specification, nor in case of a macViine patent shall the model or drawings be amended, except each by the other; but wlien there is neither model nor drawing, araendments may be made upon proof satisfaetory to the commissioner that such new matter or amendment was a part of the original invention, and was omitted from the specification bj inadvertence, accident, of mistake, as aforesaid." ��� �