Elizabeth v. American Nicholson Pavement Company (KyleR)

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  • decided by District Court of NJ in 1877
  • appealed from Circuit Court of U.S.
  • Samuel Nicholson patented a method of constructing road pavement
    • first patent issued in August 1854
    • second patent issued in August 1867
  • Nicholson sued the city of Elizabeth, NJ for infringing on his patent
    • Elizabeth claims Nicholson's patent is not novel and was in public use 6 years before patent application

History of Patent

  • Nicholson described invention to Patent Office in August 1847
  • Nicholson constructs experimental patch of pavement in June 1848 near Boston
  • Hosking's patent is the only one that could challenge Nicholson's novelty
    • Hosking patent not published until March 1850 (foreign country)

Issue of Public Use

  • Nicholson applied pavement to a public toll road belonging to the Boston and Roxbury Mill Corporation of which Nicholson was a stockholder and treasurer
  • Nicholson claims the application was an experiment to test the effect of heavily loaded wagons and varied use on the durability of the pavement
    • experiments are not considered public use
  • this application constitutes an experiment because:
    1. Nicholson does not voluntarily allow others to make and use it
    2. pavement is not on sale for general use
    3. Nicholson kept the invention under his own control
    4. Nicholson is only attempting to perfect his invention before selling it
    5. the nature of street pavement means it can only be experimented on in public
  • "It is not a public knowledge of his invention that precludes the inventor from obtaining a patent for it, but a public use or sale of it."

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