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EBY v. KING.

decided: May 20, 1895.

EBY
v.
KING.



APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

Author: Brown

[ 158 U.S. Page 369]

 MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.

As one of the chief defences in this case turns upon the validity of the reissue, it becomes necessary to compare this in some detail with the original patent No. 134,790, which was granted January 14, 1873.

[ 158 U.S. Page 370]

     In this patent, figures 2, 3, and 4 of which are here given, it is stated that b represents a disk or block, resting upon proper bearings upon the framework a, provided with a central orifice through which passes a shaft; that "the inner end of the carrier-frame is pivoted to arms ee, rising from the block b, as shown," and that "mm represent bolts secured in the framework, the upper ends of which are turned over the block b, as shown." The specification proceeds: "the carrier may be turned for the purpose of discharging the cobs, in any desired direction, by revolving the block b, which supports the carrier-frame, and the main portion of the actuating devices upon its bearings, it being secured in any desired position by means of the hook-bolts ee," (evidently meaning the hook-bolts mm, Fig. 4).

[]

There were three claims, as follows:

"1. The combination of the block b, adapted to revolve as described, and the hook-bolts ee, for supporting a carrier, as described.

"2. The combination of the block b and the central vertical shaft and itsconnections, substantially as described."

[ 158 U.S. Page 371]

     The third claim covered a combination of the elements of the entire carrier, and is not claimed to be infringed, nor is it necessary to be described.

The description in the first claim, as well as in the specifications of the hook-bolts ee, for supporting the carrier, is clearly a mistake. The hook-bolts are lettered mm, and are described in the specification as bolts, "secured in the framework, the upper ends of which are turned over the block b, as shown," (in figure 4,) while ee, which are really hooked arms, shown in figure 2, attached to the block b at the lower end, and supporting the carrier at the upper end, should have been described as arms supporting the carrier.

Had the plaintiff, in his reissue, confined himself to the correction of an error so manifest, we should have found little difficulty in sustaining it; but in his application, which was made four years after the original patent, he makes no claim that his patent "was inoperative or invalid, by reason of a defective or insufficient specification," or by reason of his having claimed "more than he had a right to claim as new," or that any error had arisen "by inadvertence, accident, or mistake," without which the Commissioner has no right to grant a reissue, but simply prays that he may be allowed to surrender his original patent, and that "letters patent may be reissued to him for the same invention, upon the annexed amended specification." He makes no reference at all to the obvious mistake in his first claim, and although the point is not distinctly made in the briefs, we think it a serious question whether the Commissioner of Patents had any jurisdiction, under Rev. Stat. ยง 4916, to consider the application upon the bare statement that the patentee desired to surrender his patent ...


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