Meyers v. Busby

32 F. 670, 13 Sawy. 33, 1887 U.S. App. LEXIS 2816

• Court: U.S. Circuit Court for the District of Northern California
• Decided: October 17, 1887
• Status: Published

Opinion

Sawyer, J.,

(orally.) In this case there is really only one defense that is available, and on which any testimony was taken, or could be taken under the answer, and that is, as to the prior public use for two years before the application for the patent. The fourth defense under the statute, that it is not new, and the invention has been made before, is a distinct defense from the fifth, and the defendants have given no sufficient notice of any testimony — and no testimony other than that applicable to the defense of two years’ prior use — on the question of prior invention; no notice of place of residence, or name of any party who invented it before, or knew of it before it was invented by the patentee in this case. As to the other defense, no two years’ public prior use has been shown, unless it bo, in the state of New York. I do not think the defendants have made out the defense, that it was in use in New York state two years, or at any time before the application for a patent. It is true, that one man at one shop, another one at another, testified that they had seen it; that the patented articles, a similar glove, had been made and sold at the manufactory where they worked in 1869, or about that time, but they are contradicted by other witnesses, by one of the owners himself, of one shop, who said he carried it on, and was perfectly cognizant of what was done there, during the time referred to, and, also, by his glove-cutter. They both testified, positively, that the invention was not made in that shop, or sold or used by them. They know the facts, and were the very persons pointed out by the witnesses who testified for defendant in the ease, that he had conversed with upon the subject, and, in conjuction with them, investigated the mode of making. The witness is, thoroughly, contradicted. It seems to be one of those cases, where somebody, years afterwards, in looking back to find an anticipation, imagines that he remembers some such case. I do not think the two-years prior use, or any use at all, is, satisfactorily, shown. On the contrary, I think it is clearly contradicted. It is not merely the negative testimony of some one, who had never seen the thing. It is the positive evidence of parties, one the owner and the other the cutter, who must have soon the invention, had it been manufactured by them in their shop, and then sold. The same is true in the other case in New York. The testimony of defendants’ witness is contradicted by several witnesses who could not be mistaken. In both cases at Chicago of parties one of whom said he brought a pair of similar gloves from Norway, and wore them in Chicago in 1872, and another who also brought to this country a pair in 1874, the evidence is not satisfactory. If either is correct, the case was not in time, as the application for the patent was made July 16, 1873. I very much doubt the reliability of the testimony. There was but a single pair brought some 15 years ago from Norway. It is scarcely probable that a pair of gloves would be kept or remembered so long, there being nothing in particular to attract attention to the matter. It would be a very unsafe incident upon which to overthrow a patent, at this late date, on the ground relied upon. At all events, it was not two years, or one year before the making of the application for a patent in this case, which was made on the sixteenth of .Tune, 1873. One of these pairs of gloves was brought to this country in 1874 or 1876, long after the application, and the other was alleged to have been brought in 1872, within the period of two years, oven if the testimony be true; but, I greatly doubt if that glove was brought from Norway in 1872.

There must be a decree for the complainant, and a reference' to the master to ascertain the net profits and the damages, and it is so ordered.