Tatham v. Lowber

U.S. Circuit Court for the District of Southern New York

Tatham v. Lowber

23 F. Cas. 721, 2 Blatchf. 49, 1847 U.S. App. LEXIS 596

CourtU.S. Circuit Court for the District of Southern New York

DecidedApril 21, 1847

StatusPublished

Cited by1 cases

This text of 23 F. Cas. 721 (Tatham v. Lowber) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tatham v. Lowber, 23 F. Cas. 721, 2 Blatchf. 49, 1847 U.S. App. LEXIS 596 (circtsdny 1847).

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Opinion

THE COURT

held; [That the specification of the patent to plaintiffs (re-issued March 16, 1846) claims as the invention a combination of arrangement of the parts of machinery described, by which pipe, with the operation of hydraulic pressure, is made with lead in a set or semifluid state. 'That the machine used by the defendants is in substance the same as plaintiffs. That the patentees can legally take out the re-issued patent for more than is described in the surrendered one, if it does not exceed the actual discovery when the first was taken out. That the evidence satisfactorily establishes that the Hansons were the first and original discoverers of the combination of arrangement embraced in the patent.] ² That the plaintiffs, on the grant of patent to them upon the assignment of the alien inventors, took and held it with all the privileges belonging to American patentees, and that the alien clause in section 15 of the act of 1836 applied only to alien patentees, and not to American patentees who became such as assignees of alien inventors under the sixth section of the act of March 3, 1837 (5 Stat. 193). That even if the plaintiffs took their right with the condition attached to alien patentees, yet they had satisfied the statute. That they need not prove that they hawked the patented improvement to obtain a market for it, or that they endeavored to sell it to any person, but that it rested upon those who sought to defeat the patent to prove that the plaintiffs neglected or refused to sell the patented invention for reasonable prices when application was made to them to purchase. [That the sales by the plaintiffs, and those they proposed and offered, [722]*722•were of the invention or discovery within the meaning of the act. That the proof is sufficient to charge all the defendants directly and indirectly with using the machinery in violation of the plaintiff’s right. Let an injunction therefore issue.] ²

[At the final hearing of the case there was a decree in favor of the complainant. See Case No. 13,765. This was affirmed upon appeal by the supreme court. 22 How. (63 U. S.) 132.]

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THE COURT

held; [That the specification of the patent to plaintiffs (re-issued March 16, 1846) claims as the invention a combination of arrangement of the parts of machinery described, by which pipe, with the operation of hydraulic pressure, is made with lead in a set or semifluid state. 'That the machine used by the defendants is in substance the same as plaintiffs. That the patentees can legally take out the re-issued patent for more than is described in the surrendered one, if it does not exceed the actual discovery when the first was taken out. That the evidence satisfactorily establishes that the Hansons were the first and original discoverers of the combination of arrangement embraced in the patent.] ² That the plaintiffs, on the grant of patent to them upon the assignment of the alien inventors, took and held it with all the privileges belonging to American patentees, and that the alien clause in section 15 of the act of 1836 applied only to alien patentees, and not to American patentees who became such as assignees of alien inventors under the sixth section of the act of March 3, 1837 (5 Stat. 193). That even if the plaintiffs took their right with the condition attached to alien patentees, yet they had satisfied the statute. That they need not prove that they hawked the patented improvement to obtain a market for it, or that they endeavored to sell it to any person, but that it rested upon those who sought to defeat the patent to prove that the plaintiffs neglected or refused to sell the patented invention for reasonable prices when application was made to them to purchase. [That the sales by the plaintiffs, and those they proposed and offered, [722]*722•were of the invention or discovery within the meaning of the act. That the proof is sufficient to charge all the defendants directly and indirectly with using the machinery in violation of the plaintiff’s right. Let an injunction therefore issue.] ²

[At the final hearing of the case there was a decree in favor of the complainant. See Case No. 13,765. This was affirmed upon appeal by the supreme court. 22 How. (63 U. S.) 132.]

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Bluebook (online)

23 F. Cas. 721, 2 Blatchf. 49, 1847 U.S. App. LEXIS 596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tatham-v-lowber-circtsdny-1847.

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