Head v. Stevens & Simonds

19 Wend. 411

• Court: New York Supreme Court
• Decided: May 15, 1838
• Status: Published

Opinion

By the Court,

Cowen, J.

The specification of an improvement in the teeth or brads, without showing in what respect particularly, but merely describing what the teeth or brads were, is defective. That the patent and specification are, therefore, void pro tanto was not denied at the trial; nor is it now, unless it can be made good by a reference to Farnham’s. Clearly that can not be done. The particular specification in question, must be perfect of itself.

Then it is said the specification shall avail as far as it is good, viz. for the improvement made upon the box ; and so the judge held. Valeat quantum valere potest is much favored as a general rule, but these specifications form a well settled exception, as may be seen by Cross v. Huntly, 13 Wendell, 385, 6, and the authorities cited at the last page by Mr. Justice Nelson. It is enough to add that on.looking into them, it will be found that this exception has been made for reasons entirely satisfactory. A specification void in part is void in toto, like a sheriff’s bond for ease and favor, or a deed to defraud creditors. So the specification is void, not only where the description is defective on its face, as for want of precision, but where it fails on matter extrinsic, as the not being in fact a new invention. Moody v. Fiske, 2 Mason, 112, 118, and the cases there cited. Cross v. Huntly, before cited. Woodcock v. Parker, 1 Gall. 438. It is doubtless the same, where that claimed as an improvement is not so. The learned judge erred in both of his decisions as to the validity of the patent. It was void in toto and formed no consideration for the notes.

New trial granted ; costs to abide the event.