Talk:Egbert v. Lippmann, 104 U.S. 333 (1881)

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The sixth, seventh, and fifteenth sections of the act of July 4, 1836, c. 357 (5 Stat. 117), as qualified by the seventh section of the act of March 8, 1839, c. 88 (id. 353), were in force at the date of his application. Their effect is to render letters-patent invalid if the invention which they cover was in public use, with the consent and allowance of the inventor, for more than two years prior to his application. Since the passage of the act of 1839 it has been strenuously contended that the public use of an invention for more than two years before such application, even without his consent and allowance, renders the letters-patent therefor void.

We observe, in the first place, that to constitute the public use of an invention it is not necessary that more than one of the patented articles should be publicly used. The use of a great number may tend to strengthen the proof, but one well-defined case of such use is just as effectual to annul the patent as many.

We remark, secondly, that, whether the use of an invention is public or private does not necessarily depend upon the number of persons to whom its use is known. If an inventor, having made his device, gives or sells it to another, to be used by the donee or vendee, without limitation or restriction, or injunction of secrecy, and it is so used, such use is public, even though the use and knowledge of the use may be confined to one person.

Nevertheless, if its inventor sells a machine of which his invention forms a part, and allows it to be used without restriction of any kind, the use is a public one. So, on the other hand, a use necessarily open to public view, if made in good faith solely to test the qualities of the invention, and for the purpose of experiment, is not a public use within the meaning of the statute.

"An abandonment of an invention to the public may be evinced by the conduct of the inventor at any time, even within the two years named in the law. The effect of the law is that no such consequence will necessarily follow from the invention being in public use or on sale, with the inventor's consent and allowance, at any time within the two years before his application; but that, if the invention is in public use or on sale prior to that time, it will be conclusive evidence of abandonment, and the patent will be void." Elizabeth v. Pavement Company, supra.

MR. JUSTICE MILLER dissenting.

The sixth section of the act of July 4, 1836, c. 357, makes it a condition of the grant of a patent that the invention for which it was asked should not, at the time of the application for a patent, "have been in public use or on sale with the consent or allowance" of the inventor or discoverer. Section fifteen of the same act declares that it shall be a good defense to an action for infringement of the patent, that it had been in public use or on sale with the consent or allowance of the patentee before his application. This was afterwards modified by the seventh section of the act of March 3, 1839, c. 88, which declares that no patent shall be void on that ground unless the prior use has been for more than two years before the application.

This is the law under which the patent of the complainant is held void by the opinion just delivered. The previous part of the same section requires that the invention must be one "not known or used by others" before the discovery or invention made by the applicant. In this limitation, though in the same sentence as the other, the word "public" is not used, so that the use by others which would defeat the applicant, if without his consent, need not be public; but where the use of his invention is by his consent or allowance, it must be public or it will not have that affect.