Page:Federal Reporter, 1st Series, Volume 9.djvu/478

AVBRILL CHEMICAL PAINT CO. V. NATIONAL MIXED PAINT CO. 463 �. Wheeleb, D. J. This suit isjounded upott reissued lelters patent No. 7,031, dated April e, ISie, granted to Damon R. Averill,' assigner, for an improvemeni; in paints. . The claim ia for "a mixed liquid paint composed of oxide of zinc or other pigments, oil, turpentine, or benzine, water,and one or more emulsating agents, put up in tight vessels or cans." The original patent was No. 66,773, dated July 16, 1867, for an improved paint compound, particularly described by ingredients andquantities like that in the reissue, but with lime-water and silicate of soda, which were emulsating agents, but not stated to be Buch, specified as parts of the combination and compound. The claim was for "a paint composed of the ingredients herein named; and prepared and compounded substantially in the mannor specified." There was no allusion in the patent to anything to contain the paint; Liquid mixed paints, produced by the use of emulsating agents, wei^e known and used before Averill's discovery, and paints had been coii- tained in cans and other tight vessels before that time, but no paint had been made by the use of bis precise combination and ingredients before. On the application for a reissue the patentee made proof that, prior to bis application for the original patent, he had put up his paint in cans and other tight packages, and nOticed its advaritages for being put up in that way, which -appears to'havebeen satisfactory to the commissioner that this mode of packing was a part of thl^ original invention, and upon tha^ proof the reissue appears to have been granted. The defendants do not useth© combination or eoru- pound described in the original patent. The principle defeneea are that the reissue is not supported by the original, 'and is thereiote void; that the patentee was not the original and firpt inventor of the invention described in the reissue; and that if the reissUa can be upheld at all, the defendantado not infringe any part foir which it is valid. The original patent was talid enough^ apparently, for the par- ticular kind of paint described in it. The reissue, if if is for tfiat kind of paint only, packed in tight vessels, may be valid, for it would merely narrow the scope of the claim upon the same invention from that kind of paint everywhere to that kind of paint only when so packed. But the reissue is not limited to that particular kind of paint. It extends to all forms made from the same ingredients, other than the emulsating agents specified, by the use of any emulsating agents. This expands the original patent, not only beyond the scope of the claim upon the invention described, but beyond the scope of that invention. The whole invention there described was of a par- ticular kind of liquid mixed paint. The invention described in the ��� �