CLIFFORD, Circuit Justice.
Certain preliminary objections have been made by the respondent to the right .of the complainants to maintain the suit, which will first be considered. Respondent contends that the complainants are not a corporation as alleged in the bill of complaint. They claim to be a corporation legally organized under the law of the state. Gen. St. c. 61, p. 341. Section one of that chapter provides, among other things, that “three or more persons, who shall have associated themselves together by articles of agreement in writing for the purpose of ... . carrying on any mechanical, mining, quarrying, or manufacturing business .... and shall have complied with the provisions of this chapter, shall be and remain a corporation under any name indicating their corporate character assumed in their articles of agreement which is not previously in use by any other corporation or company.” Under that provision, the persons claiming to constitute the corporation complainants associated themselves together, prior to the filing of the original bill of complaint, by articles of agreement in writing, and formed the corporation by the name assumed in the bill of complaint, to manufacture and sell “artificial gums and palates of vulcanite or hard rubber, under letters-patent granted John A. Cummings, dated June 7, 1S64, and assigned to said corporation.” No such de-fence was set up in the original answer of the respondent, but he gave notice on the 2d of January, 1865, that he should insist in bar of the suit that the complainants were not a corporation legally organized under the laws of the state, and he repeated that allegation in his supplemental answer. Some of the objections taken to the proceedings were overruled at the hearing, and therefore will not be made the subject of remark. The principal objections which remain open are: (1) That the business of the company, as declared in the articles of association, is not a manufacturing business within the true intent and meaning of the provision to which reference has been made; and (2) that the company does not in point of fact manufacture the alleged improvement, nor carry on any manufacturing business. Strong doubts are entertained whether there is any merit in the objections, even if it be admitted that such a defence if valid may be pleaded in bar as well as in abatement. Doubtless the nature of the improvement is such that it is necessarily made to order; but it is difficult to see how that circumstance can divest the patented article of the character of a manufacture. Manufacturers often work to order, and it is not perceived that it can make any difference in respect to the question under consideration whether the article was made for sale, or was made to order, as in either case it is manufactured before it is actually sold. Licenses are granted by the complainants, as appears by the allegations in the bill of complaint; but there is also evidence in the case which shows that they have agents who manufacture the patented article. They complied in form with the requirements of the statute, and inasmuch as the authorities of the state have not called the validity of their organization in question, it cannot be admitted that a mere wrongdoer can set up such a defect, if it be one, as a justification of his wrongful acts. But it is not necessary to place the decision of the-court upon- either of those grounds, as it is clearly settled by the supreme court that such a defence must be pleaded in abatement, and that it cannot be pleaded in bar, nor be given in evidence under the general issue. Corporations may have the same remedies at law or in equity as natural persons, and the rule established by the supreme court is, that if the defendant plead the general issue in a suit brought by a corporation, it is an admission of the corporate existence of the plaintiffs, and dispenses with the necessity of any proof on their part to sustain that allegation. By pleading to the merits, said Judge Story, in the case of Conard v. Atlantic Ins. Co., 1 Pet. [26 U. S.] 450, the defendant necessarily admitted the capacity of the plaintiffs to sue. If he intended to take that exception.it should have been done by a plea in abatement, and his omission to do so was a waiver of the objection. Kane v. Paul, 14 Pet. [39 U. S.] 41; Childress v. Emory, 8 Wheat. [21 U. S.] 642. Reference was made in the argument to the fact that the respondent, on the 2d of January, 1865. in the paper filed at that time, giving notice of additional matters of defence’ not' specified in the original answers, states that he will insist in bar of the suit that the plaintiffs are not a corporation legally organized -under the laws of the state; but the-[501]*501paper having been filed without leave to amend cannot he regarded as an amendment to the original answer. Looking at the objection in any point of view, we are of the opinion that it cannot be sustained.
Objection is also made by the respondent to the proceedings of the patent office on granting both the first and the second reissued patents, and he insists that the errors were of such a character that the last reissued patent is void. Recurring to the dates, it will be seen that the .assignment to the complainants was prior to the surrender of the original patent; and the record shows that the instrument of assignment was on file in the patent office when the application for the reissue was presented. Fraud is not imputed, and there is no pretence of intentional error or concealment. The errors sug-gestéd are: 1. That the application for the first reissue was signed by the original pat-entee; and, 2. That the patent office in the first instance actually granted the reissue to the applicant Whether the mistake was first discovered by the patent office or by the party named as patentee does not appear, but it does appear that the letters-patent were immediately returned to the commissioner, and that the mistake was corrected as a clerical error. Unless it could be corrected as a clerical error, it could not be corrected at all, as it was clearly not a case falling within the provision authorizing a surrender and reissue. Rules of the patent office furnish a form of an application for the surrender of a patent; but the act of congress does not in terms require that it shall be in writing. Patents may doubtless be surrendered on petition or by delivery as the rules of the patent office may prescribe, and in the cases specified in the act of congress a new patent may be issued to the original inventor, or, in case of an assignment, to his assignees. Where the assignment covers the whole interest of the inventor, present and prospective, it is undoubtedly more regular that the application for the surrender should be made by the assignee; but, even in that case, it cannot be admitted that the reissue is void, if the assignment was duly recorded in the patent office, and the application ¡ for the surrender and reissue was'made with ' the knowledge and consent of the assignee. Letters-patent must in all cases conform to the requirements in the act of congress; but where the reissued patent is correct in form, and there is no proof of fraud, intentional error, or concealment, a mere wrongdoer cannot defend himself against the charge of infringement by proving that the proceedings which led to the reissue were irregular, unless it be shown that the proceedings were contrary to law, or that the patent was granted to the wrong party. Correction of the error in this case was made by the commissioner at the request of the assignor of the patent; and he stated in the same communication that the assignment to the complainants was on record in the patent office.
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CLIFFORD, Circuit Justice.
Certain preliminary objections have been made by the respondent to the right .of the complainants to maintain the suit, which will first be considered. Respondent contends that the complainants are not a corporation as alleged in the bill of complaint. They claim to be a corporation legally organized under the law of the state. Gen. St. c. 61, p. 341. Section one of that chapter provides, among other things, that “three or more persons, who shall have associated themselves together by articles of agreement in writing for the purpose of ... . carrying on any mechanical, mining, quarrying, or manufacturing business .... and shall have complied with the provisions of this chapter, shall be and remain a corporation under any name indicating their corporate character assumed in their articles of agreement which is not previously in use by any other corporation or company.” Under that provision, the persons claiming to constitute the corporation complainants associated themselves together, prior to the filing of the original bill of complaint, by articles of agreement in writing, and formed the corporation by the name assumed in the bill of complaint, to manufacture and sell “artificial gums and palates of vulcanite or hard rubber, under letters-patent granted John A. Cummings, dated June 7, 1S64, and assigned to said corporation.” No such de-fence was set up in the original answer of the respondent, but he gave notice on the 2d of January, 1865, that he should insist in bar of the suit that the complainants were not a corporation legally organized under the laws of the state, and he repeated that allegation in his supplemental answer. Some of the objections taken to the proceedings were overruled at the hearing, and therefore will not be made the subject of remark. The principal objections which remain open are: (1) That the business of the company, as declared in the articles of association, is not a manufacturing business within the true intent and meaning of the provision to which reference has been made; and (2) that the company does not in point of fact manufacture the alleged improvement, nor carry on any manufacturing business. Strong doubts are entertained whether there is any merit in the objections, even if it be admitted that such a defence if valid may be pleaded in bar as well as in abatement. Doubtless the nature of the improvement is such that it is necessarily made to order; but it is difficult to see how that circumstance can divest the patented article of the character of a manufacture. Manufacturers often work to order, and it is not perceived that it can make any difference in respect to the question under consideration whether the article was made for sale, or was made to order, as in either case it is manufactured before it is actually sold. Licenses are granted by the complainants, as appears by the allegations in the bill of complaint; but there is also evidence in the case which shows that they have agents who manufacture the patented article. They complied in form with the requirements of the statute, and inasmuch as the authorities of the state have not called the validity of their organization in question, it cannot be admitted that a mere wrongdoer can set up such a defect, if it be one, as a justification of his wrongful acts. But it is not necessary to place the decision of the-court upon- either of those grounds, as it is clearly settled by the supreme court that such a defence must be pleaded in abatement, and that it cannot be pleaded in bar, nor be given in evidence under the general issue. Corporations may have the same remedies at law or in equity as natural persons, and the rule established by the supreme court is, that if the defendant plead the general issue in a suit brought by a corporation, it is an admission of the corporate existence of the plaintiffs, and dispenses with the necessity of any proof on their part to sustain that allegation. By pleading to the merits, said Judge Story, in the case of Conard v. Atlantic Ins. Co., 1 Pet. [26 U. S.] 450, the defendant necessarily admitted the capacity of the plaintiffs to sue. If he intended to take that exception.it should have been done by a plea in abatement, and his omission to do so was a waiver of the objection. Kane v. Paul, 14 Pet. [39 U. S.] 41; Childress v. Emory, 8 Wheat. [21 U. S.] 642. Reference was made in the argument to the fact that the respondent, on the 2d of January, 1865. in the paper filed at that time, giving notice of additional matters of defence’ not' specified in the original answers, states that he will insist in bar of the suit that the plaintiffs are not a corporation legally organized -under the laws of the state; but the-[501]*501paper having been filed without leave to amend cannot he regarded as an amendment to the original answer. Looking at the objection in any point of view, we are of the opinion that it cannot be sustained.
Objection is also made by the respondent to the proceedings of the patent office on granting both the first and the second reissued patents, and he insists that the errors were of such a character that the last reissued patent is void. Recurring to the dates, it will be seen that the .assignment to the complainants was prior to the surrender of the original patent; and the record shows that the instrument of assignment was on file in the patent office when the application for the reissue was presented. Fraud is not imputed, and there is no pretence of intentional error or concealment. The errors sug-gestéd are: 1. That the application for the first reissue was signed by the original pat-entee; and, 2. That the patent office in the first instance actually granted the reissue to the applicant Whether the mistake was first discovered by the patent office or by the party named as patentee does not appear, but it does appear that the letters-patent were immediately returned to the commissioner, and that the mistake was corrected as a clerical error. Unless it could be corrected as a clerical error, it could not be corrected at all, as it was clearly not a case falling within the provision authorizing a surrender and reissue. Rules of the patent office furnish a form of an application for the surrender of a patent; but the act of congress does not in terms require that it shall be in writing. Patents may doubtless be surrendered on petition or by delivery as the rules of the patent office may prescribe, and in the cases specified in the act of congress a new patent may be issued to the original inventor, or, in case of an assignment, to his assignees. Where the assignment covers the whole interest of the inventor, present and prospective, it is undoubtedly more regular that the application for the surrender should be made by the assignee; but, even in that case, it cannot be admitted that the reissue is void, if the assignment was duly recorded in the patent office, and the application ¡ for the surrender and reissue was'made with ' the knowledge and consent of the assignee. Letters-patent must in all cases conform to the requirements in the act of congress; but where the reissued patent is correct in form, and there is no proof of fraud, intentional error, or concealment, a mere wrongdoer cannot defend himself against the charge of infringement by proving that the proceedings which led to the reissue were irregular, unless it be shown that the proceedings were contrary to law, or that the patent was granted to the wrong party. Correction of the error in this case was made by the commissioner at the request of the assignor of the patent; and he stated in the same communication that the assignment to the complainants was on record in the patent office.
' The second surrender was asked merely to correct an error of date in the first reissue; and it is obvious that the suggestion of error was well founded, and that the correction requested was one proper to be made. Two errors also are suggested in the proceedings which led to the second reissue: (1) That the application for the surrender of the patent was signed by the original invent- or; and, (2) that the patent described in the application for the surrender was the original patent, instead of the first reissue, as it should have been. Evidently the first objection is without merit, as the application to surrender the patent referred to the assignment, and contained the request that the new patent might be issued to the complainants. Pursuant to that request, the reissue was granted; and the complainants, having adopted the surrender and accepted the new patent, are estopped to deny either the authority of the applicant or that of the commissioner. See “Surrender,” 1 Com. Dig. 1; 10 Coke, 67b; Shop. Touch. 301-303. Complaint certainly cannot be made by the applicant, because it was his own act; and it is equally clear that the government cannot be heard to complain, because there is but one patent in existence for the invention, and the commissioner had full knowledge of all the circumstances.
The remaining preliminary objection is, that the description of the patent in the application for the surrender was erroneous. Suppose that is so, still it is apparent that all the papers were before the commissioner, and that he had full knowledge of all the circumstances and of what the patentees desired to accomplish. The averment of the answer is merely that the reissues were not made according to law; but it is not alleged or proved that there is anj- error in the records of the patent office, except what appears in the application for the surrender. The statement in the patent is, that the first reissue was surrendered and cancelled; and, in the absence of any proof to the contrary, the presumption of law is, that the statement as there made is correct, and that the surrender was made according to law and the rules of the patent office.
Coming to the merits of the case, it becomes necessary to ascertain the character of the invention, and the true construction of the patent. Present suit is founded upon the second reissued patent. Claim of the patent is, “The plate of hard rubber or vul-canite, or its equivalent, for holding artificial teeth, or teeth and gums, substantially as described.” The invention is designated in the patent as a new and useful improvement in artificial gums and palates; but it is described in the beginning of the specification as a new and useful improvement in plates for artificial teeth, which, perhaps, is the better general description. Adopting the usual order, the inventor, in the first place, [502]*502points out the objections to and inconveniences in tbe old mode of attaching artificial teetli to a metallic plate, and of fitting the same to the roof of the mouth. They are, as stated, that the metal was expensive, and that the plate, being hard and unyielding, was apt to injure the mouth, and that its tendency was to" impede mastication and obstruct articulation. He then proceeds to say that his invention consists in forming the plate, to which the teeth or teeth and gums are attached, of hard rubber or vulcanite, so called; and describes the hard rubber or vul-canite as an elastic material, possessing and retaining, when used in that way, sufficient rigidity for the purpose of mastication, and being pliable enough at the same time to yield a little to the motions of the mouth. Description is then given of the manner of making the hard-rubber plates, from which it appears that impressions are taken of the mouth, or that part of it the plate is to fit, of wax or plaster, in the same manner as is usually practised in the construction of gold plates for artificial teeth. . Superadded to that is also a description of the means employed in setting and securing the teeth, or also of the kinds of teeth which may be employed. They are set in place and adjusted to the proper distance and fullness in the same manner as practised in setting teeth in gold plates. But they are provided with pins projecting in such a manner that the rubber will close around them and hold them secure in position. When completed, the plaster mould, with the teeth set as described, is carefully filled with soft rubber, and the same is made secure in its position by placing another plaster mould over it, and while in that condition it is heated or baked in an oven or in some other suitable way. The statement of the patentee is, that the soft rubber or gum is to be compounded with sul-phur, &c., in the manner prescribed in the hard-rubber patent, and is to be subjected to sufficient heat to vulcanize or harden it, ns directed in that patent. Unless the soft rubber is colored when purchased from the owner of the hard-rubber patent, it is also to be colored in imitation of the natural gums by mixing it with vermilion or other suitable ' coloring matter while in the soft state. After the plate has been heated or baked sufficiently to convert it into hard rubber, the mould is removed and the plate is then polished for use. The claim of the patent conforms to the description of the invention as given in the specification; and it is not perceived that any form of words can render it more definite.
Several defences are set up by the respondent upon the merits; but the one most pressed at the argument was, thatthe assign- or if the complainants is not the original and first inventor of the improvement described in the patent. The assignees hold ttie patent, and they have introduced it in evidence; and having done so. the presumption on that issue is in favor of the complainants. Letters-patent are granted by public authority, and when issued, and regular in form, the presumption is that the power was rightly exercised; and he who alleges the contrary must prove it Considering the mass of testimony and documentary proofs upon this issue, it is deemed inexpedient to do much more than to state our conclusions. Neither party would be benefited by an attempt to remark upon all the proofs in the case, and it would necessarily extend the opinion to an unreasonable length. Suffice it to say, we have carefully examined the evidence, and, in view of all the facts and circumstances, are fully, satisfied that the original patentee, in the contemplation of the patent law, was the original and first inventor of the improvement described in that patent. The respondent contends that the improvement was made by F. A. Bevin, or that the latter was at least a joint inventor with the original patentee. But it is not possible to sustain the first branch of the proposition, because the evidence introduced for that purpose is not sufficient'!» change the burden of proof, as it fails to show that the person named ever did anything before he was employed by the original patentee, more than try a single imperfect experiment. On the other hand it clearly appears that the original pat-entee had filed his caveat in the patent office before he had even made the acquaintance of the person supposed by the respondent to be the inventor of the improvement- Such a theory finds no satisfactory support in the proofs, and it is dismissed without further remark. Undoubtedly Bevin went into the employment of the original patentee in the fall of 1853, or early in 1851; but he went abroad in the spring of 1954. and did not return till the fall of that year. When he returned, he commenced, under the directions of the original patentee, the manufacture of hard-rubber plates. They entered int > a written contract on the 2d of April, 1S55: and the terms of that instrument show that both parties regarded the invention as belonging to the original patentee. By the terms of the instrument it appears that the original patentee had filed a caveat, preparatory to taking letters-patent, and that the other party had already rendered services in perfecting the invention. Substance of the agreement was, that Cummings should furnish all the pecuniary means, have the results, and that Bevin should make the experiments, and be entitled to one third of the interest. But the whole instrument treats Cummings as the inventor and Bevin as the employee. The same conclusion is drawn from the correspondence in the case, which is quite too voluminous to be reproduced. All the conduct of Bevin speaks the same language, and that remark is especially true of his conduct when Cummings was about to apply for a patent. His certificates given at that time are quite decisive, not only that he [503]*503did not regard himself as a prior inventor to the original patentee, hut that he did not even claim or pretend to be a joint inventor as is supposed by the respondent. He never made any such claim in his lifetime, and no such claim has been made by his legal representatives since his decease. Our conclusion is that the defence on this point is not made out.
[NOTE. The original patent No. 43,009, granted to J. A. Cummings, June 17, 1864, was involved in the ease of Goodyear v. Hills. Case No. 5.571a. The reissue No. 1.904, dated March 21, 1865, was involved in the following cases: Goodyear Dental Vulcanite Co. v. Smith, Case No. 5,598, 93 U. S. 486; Same v. Davis, Case No. 5,589. 102 U. S. 222; Same v. Preterre, Case No. 5,596; Same v. Root, Id. 5,597; Same v. Willis, Id. 5,603; Same v. Flagg, Id. 5,590; Same v. Gardiner, Id. 5.591; Same v. Bright-well, McArthur & M. 74: Same v. Van Antwerp, Case No. 5,600; Same v Osgood, Id. 5,594.]
The next objection to be noticed is. that, the inventor abandoned his invention because his application for a patent, which was made April 12, 1855, was rejected February 6, 1856, and because he did not appeal at aü or make any new application until the 25th of March, 1804. Strong doubts are entertained whether any new application was necessary; but if it was, it is believed to be well settled that the second application must be regarded as having been filed in aid of the first, on which the rejection took place. Godfrey v. Eames, 1 Wall. [68 U. S.] 317.
Actual abandonment is not satisfactorily proved; and it is not possible to hold that any use of the invention without the consent of the inventor, while his application for a patent was pending in the patent office, can defeat the operation of the letters-patent after they are duly granted. Such delays are sufficiently onerous to a meritorious inventor if his patent is allowed to have full operation after it is granted, but it would be very great injustice to hold that any delay which the inventor could not prevent, should under any circumstances affect the validity of his patent.
Another objection is, that the second reissued patent is not for the same invention as that described in the original specification. Comparing the two instruments, ir. is not perceived that there is any substantial difference between them in respect to anything embraced in the invention. The directions are more specific in the reissued patent, but there does not appear to be any such change in the description of the invention as will support the objection taken by the respondent
Passing over certain minor objections, it only remains to ascertain whether the charge of infringement is maintained. Charge of the bill of complaint is, that the respondent has manufactured, used, and sold, and still continues to manufacture, use, and sell, many artificial gums and palates embracing the improvement and invention described in the letters-patent of the complainants. The reference in the supplemental answer is to the original answer, and it is the conclusion of the court that the latter, in legal contemplation. admits the charge of infringement. Complainants are entitled to' a decree for an account and for an injunction.