Page:Federal Reporter, 1st Series, Volume 9.djvu/306

KELLS V. M'KBNZIB. 291 �claim in the reissued patent . It is true that in the case of Leggett V. Avery, 101 U. S. 256, it is said by Mr. Justice Bradley that it is vexy doubtful whether, where an applicant for letters patent, in order to obtain the issue thereof, acquiesces in the rejeotion of a claim thereto, a reissue containing such claim would be valid. In that case, however, on the surrender of the original letters there was a disclaimer of a part of the invention described by them, filed by the patentee in the patent office, and reissued letters were granted for the remainder. Afterwards, in the second reissue, the disclaimed inven- tions were embraced, and it was held that the patentee could not sustain a bill to restrain the infringement of them. The decision upon this point is not easily reconcilable with that of Smith v. Good- year Dental Vulcanite Co. 93 U. S. 486, 500, and with the other cases there cited, and, upon the whole, I should not feel inclined, without a more definite ruling upon this point, to hold this claim bad upon that account. It would seem that as the reissue in this case was applied for within two years after the original patent was issued, that this might be considered as rather in the nature of a renewal of his application for the allowance of this claim and for a rehearing of the matter. I do not deem it necessary, however, to express a decided opinion upon this point. �Another objection is taken, which goes to show the foundation of the whole patent. Revised Statutes, § 4886, provides "that any person who has invented or discovered any new or useful art * * • not in public use or on sale for more than two years prior to his application * * * may * * • obtain a patent therefor." There is evidence in this case tending very strongly to show that in August, 1873, a machine, which embodied all the essential features of this patent, was offered for sale by the patentee to Jamison & Afflick, brickmakers, at Chesterton, Indiana. A prior machine, embodying all the material combinations claimed in this patent, was completed by the complainant in 1868, and was tried. Complainant says that this experiment demonstrated the fact, that, if the machine were constructed of sufficient strength, it would be a valuable operat- ing machine. It was laid aside for the present, however, and stood in a shed at Angell's foundry in Adrian during the winter of 1868 and 1869, when it was taken to pieces, and a portion of it saved and put into another machine, which was built in 1872 at Farrar & Dodge's. This machine appears to have had all the material ele- ments of the machine shown and claimed in this patent. In August, 1873, it was sent to Jamison & Afflick, brickmakers, at Chesterton; ��� �