Page:Federal Reporter, 1st Series, Volume 8.djvu/163

MOFFIIT V. RQGBBSt 149 �counters already begun upon another old machine for making coun- ters. He might as well, in my opinion, claim a patent for passing a counter twice through the eame machine. �I do not mean to say that a patent cannot possibly be supported for a process or method which consists only of applying an old ma- chine to a new use. Many of the ablest writers and jurists assert that such a claim is possible. I have never seen a case in which a patent of this sort bas been sustained, and there are some in which it has been rejected. If one is ever supported, it will be when the new use is so remote from the old use that a court or jury can say that a new idea has been discovered. �In the case of Brook v. Ashton, 8 E. & B. 478, affirmed, 32 L. T. Eep. 'oil, the patentee applied to fibers of wool and hair a process which had been before used for burnishing threads of cotton linen; but it was held, as matter of law, to be a mere double use, and the court refused to leave to the jury the question whether a new resuit was obtained. Certainly hair is iess like cotton than a counter-blank partly made into a counter is to the counter-blank. �I am further of opinion, upon the evidence, that the process had been used by the defendants and by Bussell & Co. before the plain- tili's application; whether for more than two years before that time, I do not decide. An attempt is made to carry back the plain- tiff's invention for nine years, by evidence that he conceived the idea of the double process and carried it out to a practical success in 1867. The fact is denied by the defendants, and it is doubtful whether, so far as counters are concerned, the experiments of 1867 resulted in anything like a completed invention. For all the purposes of litiga- tion the point seems to be settled in the patent; for it is explicitly stated in the specification that both the processes which the piaintiff has united into a single process are old; and this must mean old at the date of bis invention. He cannot now be heard to contradiot this admission. Leggett v. Avery, 102 U. S. 256. �Bill dismissed wiih costs. ��� �