An article which could be made only as a mere curiosity, and not as an article for the trade, will not defeat a subsequent invention. Lamb v. Hamblen, 11 Fed. Rep. 722.

Where the thing patented is an entirety, consisting of a single device, or combination of old elements incapable of division or separate use, the invention is novel, although a part of the entire invention is found in one prior patent, printed publication or machine, another part in another, and still another part in another. Imhaeuser v. Buerk, 17 O. G. 795; s. c. 101 U. S. 647; s. c. 1 Ban & Ard. 347; Parks v. Booth, 17 O. G. 1089; s. c. 102 U. S. 96; s. c. 1 Flippin 381; s. c. 1 Ban & Ard. 225; Waterman v. Thomson, 2 Fish. 461.

Although a person has brought together all the parts necessary to accomplish the result sought to be attained by the patentee, yet if he does not know how to use them this will not constitute such a known use as will defeat a patent. Campbell v. New York, 20 O. G. 1817; s. c. 9 Fed. Rep. 900.

If the inventor produced a new article he is entitled to a patent, although others approached very near to the invention without producing it exactly. M. & P. Manuf. Co. v. DuBruil, 13 O. G. 351; s. c. 2 Ban & Ard. 618.

If a device accomplishes a certain result it anticipates a subsequent invention, although the inventor does not mention the result or assign it as a reason for using the device. Stow v. Chicago, 104 U. S. 547; s. c. 21 O. G. 790; s. c. 8 Biss. 47; s. c. 3 Ban & Ard. 83.

To render an article new in the sense of the patent law it must be more or less efficacious or possess new properties by a combination with other ingredients. It is only where one of these results follows that the product of the compound can be treated as the result of invention or discovery and be regarded as a new and useful article. Glue Co. v. Upton, 97 U. S. 3; s. c. 4 Cliff. 237; s. c. 6 O. G. 837; s. c. 1 Ban & Ard. 497. In a doubtful case the fact that the defendant has obtained possession of one of the alleged prior machines, and has not produced it, can not but exercise great influence on the determination. Washing Machine Co. v. Lincoln, 4 Fish. 379.

When a new invention is sought to be intercepted by a former one, the production of a former machine is of very great importance, showing that it does not rest merely in the recollection of witnesses that there was such a thing. Howev. Underwood, 1 Fish. 160; Murphy v. Eastham, 5 Fish. 306; s. c. 1 Holmes 113; 2 O. G. 61; Orr v. Badger, 7 Law Rep. 465; Chase v. Wesson, 6 Fish. 517; s. c. 1 Holmes 274; 4 O. G. 476; Baldwin v. Schultz, 5 Fish. 75; s. c. 9 Blatch. 494; 2 O. G. 315; Moody v. Taber, 1 Holmes 325; s. c. 5 O. G. 273; s. c. 1 Ban & Ard. 41; Smith v. G. E. F. Co., 1 Holmes 340; s. c. 5 O. G. 429; La Baw v. Hawkins, 6 O. G. 724 ; s. c. 1 Ban & Ard. 428; Hawes v. Antisdel, 8 O. G. 685; s. c. 2 Ban & Ard. 10; McKisson v. Carnrick, 9 Fed. Rep. 44; Theberath v. Rubber & C. H. T. Co., 23 O. G. 1121; s. c. 15 Fed. Rep.

The doctrine of equivalents should be critically scanned where there may be a difference in relation to two machines which in some respects operate by equivalent devices, and in other respects do not, to ascertain whether one has become a practical machine, while the other is not. Sayles v. Railroad Co., 2 Fish. 523; s. c. 1 Biss. 468.

The results produced constitute a safe kind of evidence, which may be relied upon with some degree of certainty, in order to ascertain whether the same means are used. Like means, provided the machine is in perfect order, will in a measure produce like results. If like results can not be produced by two separate devices, it is good evidence to consider in determining whether the means are the same, because, as a general rule, like results are produced by like means, and if like results are not produced by two separate devices it is fair to infer that the means may not be alike in kind or character. Waterbury Brass Co. v. New York Brass Co., 3 Fish. 43; Suffolk Co. v. Hayden, 4 Fish. 86; s. c. 3 Wall. 315.

It is decisive evidence, though not the only evidence, that a new mode of operation has been introduced if the practical effect of the invention is either a new effect or a materially better effect, or as good an effect more economically attained by means of the change made by the patentee. A new, or improved, or more economical effect attributable to the change made by the patentee in the mode of operation of existing machinery proves that the change has introduced a new mode of operation, which is the subject-matter of a patent. Furbush v. Cook, 2 Fish. 668.

If a materially different result is reached it is evidence of some new cause or means, although the mechanism may apparently be substantially the same. Hence a greater degree of utility being achieved by one machine is evidence, and sometimes conclusive evidence, of novelty in the means or instrumentalities which are used. Eames v. Cook, 2 Fish. 146; Roberts v. Dickey, 4 Fish. 532; s. c. 4 Brews. 260; 10. G. 4.

If the patented invention produce a result decidedly and clearly different from any which has been produced by the action of any prior invention, and is decidedly superior to any other in its operation, it affords a ground for the presumption that the thing itself has not been known before. Judson v. Cope, 1 Fish. 615 s. c. 1 Bond 327.

New capabilities important to the practical use of a machine are some evidence that the subsequent invention is different from the prior one. Eames v. Cook, 2 Fish. 146; Masury v. Anderson, 6 Fish. 457; s. c. 11 Blatch. 162; 4 O. G. 55; Child v. Bost. & F. Iron Works Co., 6 Fish. 606; s. c. 1 Holmes 303; 5 O. G. 61.

If the same effects are produced by two machines by the same mode of operation, the principles of each are the same. Whittemore v. Cutter, 1 Gallis. 478; s. c. 1 Robb 40; Odiorne v. Winkley, 2 Gallis. 51; s. c. 1 Robb 52.

If the same effects are produced, but by combinations of machinery operating substantially in a different manner, the principles are different. Whittemore v. Cutter, 1 Gallis. 478; s. c. 1 Robb 40.

When an invention is sought by many minds and developed in different

and independent forms, all original and yet all bearing a somewhat general resemblance to each other, he who precedes all the rest and strikes out something which includes and underlies all that they produce acquires a monopoly and subjects them to tribute. But if the advance towards the thing is gradual and proceeds step by step, so that no one can claim the complete whole, then each is entitled only to the specific form of device which he produces, and every other inventor is entitled to his own specific form so long as it differs from those of his competitors and does not include theirs. Railway Co. v. Sayles, 97 U. S. 354; s. c. 15 O. G. 243 ; s. c. 3 Biss. 52; s. c. 4 Fish. 584; Duff v. Sterling Pump Co., 23 O. G. 1622; Whitmun v. Seaman, 5 Ban & Ard. 95; s. c. 4 Fed. Rep. 436; New York B. & B. Co. v. Hoffman, 20 O. G. 1450; s. c. 9 Fed. Rep. 919; Williams v. Barker, 18 O. G. 243; s. c. 5 Ban & Ard. 453; s. c. 2 Fed. Rep. 649; Parsons v. Colgate, 24 O. G. 203; s. c. 15 Fed. Rep. 600.

Novelty in Combinations.

When the patent is for a combination it is immaterial whether the patentee is the inventor of any of the elements or ingredients. They may all be old, and yet if the patentee was the first to combine them for the particular purpose he is entitled to be protected in that improvement. Silsby v. Foote, 20 How. 378; s. c. 2 Blatch. 260; Carr v. Rice, 1 Fish. 198; Hovey v. Stevens, 1 W. & M, 290; s. c. 2 Robb 479; Carr v. Rice, 1 Fish. 325; s. c. 4 Blatch. 200; Buck v. Hermance, 1 Blatch. 398; Hovey v. Henry, 3 West. L. J. 153; Gray v. James, Pet. C. C. 394; s. c. 1 Robb 120; Furbush v. Cook, 2 Fish. 668; Buck v. Gill, 4 McLean 174; s. c. 2 Robb 150; M'Cully v. Cunningham, 19 Pitts. L. J. 142; Ex parte Sturgis, 1 O. G. 204; Evans v. Eaton, 3 Wheat. 454; s. c. Pet. C. C. 322; s. c. 1 Robb 243; Swift v. Whisen, 3 Fish. 343; s. c. 2 Bond 115; Crosby v. Lapouraille, Taney 374; Pitts v. Edmonds, 2 Fish. 52; s. c. 1 Biss. 168; Blake v. Stafford, 3 Fish. 294; s. c. 6 Blatch. 195; Butch v. Boyer, 8 Phila. 57; Heald v. Rice, 104 U. S. 737; s. c. 21 O. G. 1443; s. c. 13 Pac. L. R. 33; Barrett v. Hall, 1 Mason 447; s. c. 1 Robb 207; Stimpson v. Woodman, 3 Fish. 98; s. c. 10 Wall. 117; Latta v. Shawk, 1 Fish. 465; s. c. 1 Bond 259; Roberts v. Harnden, 2 Cliff. 500; Connover v. Roach, 4 Fish. 12; Ingels v. Mast, 6 Fish. 415; Knight v. Railroad Co., 3 Fish. 1; s. c. Taney 106; Lee v. Blandy, 2 Fish. 89; s. c. 1 Bond 361; Winans v. Schenec. & Troy R. R. Co., 2 Blatch. 279; Locomotive Co. v. Railway Co., 6 Fish. 187; s. c. 10 Blatch. 292; 3 O. G. 93; Ex parte A. B. Smith, 1 O. G. 403; Wisner v. Grant, 17 O. G. 447; Stillwell & B. Manuf. Co. v. Cin. G. & C. Co., 7 O. G. 829; s. c. 1 Ban & Ard. 610; Albright v. Celluloid H. T. Co., 12 O. G. 227; s. c. 2 Ban & Ard. 629; Worswick Manuf. Co. v. Steiger, 17 Fed. Rep. 250.

A patent for a new combination or arrangement to produce a new result is valid although one of the parts is old. O'Reilly v. Morse, 15 How. 62; Hall v. Wiles, 2 Blatch. 194; Friuk v. Petry, 11 Blatch. 422; s. c. 5 0. G. 201; s. c. 1 Ban & Ard. 1; Buck v. Hermance, 1 Blatch. 398; Furbush v. Cook, 2 Fish. 668; Watson v. Cunningham, 4 Fish. 528.

A patent for a combination can not be proved to be invalid by showing that one of the elements is found in some one prior machine and another in another prior machine, until it is shown that all the elements are old, because the theory of such a patent is that the elements are old, and the invention consists merely in the new combination. Union Sugar Refinery v. Matthiesson, 2 Fish. 600; s. c. 3 Cliff. 639; Hall v. Stern, 24 O. G. 206. A patent for a combination can not be supported by evidence of the novelty of one of its parts. Batten v. Clayton, 2 Whart. Dig. 363.

If old materials and old principles in mechanics or otherwise, are used in a state of combination so as to produce a new result, the inventor of the article so produced is entitled to apply for and may obtain a valid patent. Pennock v. Dialogue, 4 Wash. C. C. 538; s. c. 2 Pet. 1; s. c. 1 Robb 466, 542.

If the combination is new it is patentable matter, although a part of the apparatus might have been applied to similar purposes in other and different machines. Under such circumstances, it would not be a mere application of an old apparatus to a new purpose, but a new combination of machinery incorporating in part an old apparatus for a new purpose. Pitts v. Whitman, 2 Story 609; s. c. 2 Robb 189.

If the patentee borrowed the idea of the different parts which go to constitute his invention, and for the first time brought them together into one whole, and that whole is materially different from any whole that existed before, then he is the original and first inventor, and is entitled to a patent therefor. Many v. Sizer, 1 Fish. 17.

If not only all the primary elements but all the sub-combinations existed in different machines before, but were never brought together to constitute one machine and co-operating to produce one result, and the inventor brings them together by invention, producing a useful result, he is entitled to a patent for such combination and arrangement. Howe v. Morton, 1 Fish. 586.

The omission of a part in a combination with a corresponding omission in function so that the retained parts do just what they did before in the combination is not patentable. Stow v. Chicago, 104 U. S. 547; s. c. 21 O. G. 790; s. c. 8 Biss. 47; s. c. 3 Ban & Ard. 83.

If a device is a substitute for one element of an old combination, and not merely an improvement on it, then a machine containing this substitute and the other old elements, is a new and different machine from a machine containing the combination of old elements known before the invention, and not merely an improvement on such machine containing such combination of old elements. Potter v. Holland, 1 Fish. 382; s. c. 4 Blatch. 238.

Although the ingredients in a combination of materials may have been in the most common and extensive use, yet, if they have never been combined together in the manner stated in the patent, the invention of the combination is patentable. Ryan v. Goodwin, 3 Sum. 514; s. c. 1 Robb 725.

Priority.

No person who is not at once the first as well as the original inventor, by whom the invention has been perfected and put into actual use, is entitled to a patent. A subsequent inventor, although an original inventor, is not entitled to any patent. If the invention is perfected and put into actual use by the first and original inventor, it is of no consequence whether the invention is extensively known or used, or whether the knowledge or use thereof is limited to a few persons or even to the first inventor himself. It is sufficient that he is the first inventor to entitle him to a patent, and no subsequent inventor has a right to deprive him of the right to use his own prior invention. Spring v. Packard, 7 O. G. 341 ; s. c. 1 Ban & Ard. 531; Burrows v. Lehigh Zinc Co., 1 Ban & Ard. 521 ; Reed v. Cutter, 1 Story 590; s. c. 2 Robb 81; Watson v. Bladen, 4 Wash. C. C. 580; s. c. 1 Robb 510; Stimpson v. Woodman, 3 Fish. 98; s. c. 10 Wall. 117; Sayles v. Hapgood, 3 Fish. 632; s. c. 2 Biss. 189; Carr v. Rice, 1 Fish. 198; Roberts v. Ward, 4 McLean 565; Larabee v. Cortlan, 3 Fish. 5; s. c. Taney 180; Wing v. Schoomaker, 3 Fish. 607; Suffolk Co. v. Hayden, 4 Fish. 86; s. c. 3 Wall. 315; Boston E. F. . Co. v. Rubber Thread Co., 1 Holmes 372; s. c. 5 O. G. 696; s. c. 1 Ban & Ard. 222; Bridge v. Brown, 1 Holmes 53; Bedford v. Hunt, 1 Mason 302; s. c. 1 Robb 148; Darst v. Brockway, 11 Ohio 462; Pickering v. McCullough, 104 U. S. 310; s. c. 21 O. G. 73; s. c. 13 O. G. 818; s. c. 3 Ban & Ard. 279; Garratt v. Seibert, 98 U. S. 75; s. c. 15 O. G. 383; Roemer v. Simon, 12 O. G. 796; s. c. 95 U. S. 214; s. c. 1 Ban & Ard. 138.

The patent law goes undoubtedly upon the ground that when a man, by his knowledge and skill, has made and perfected a machine, the public are then put in possession of the invention, and have the benefit in some form of that knowledge and skill, and that the man who comes afterward can not deprive the public of that benefit, though he may be an original inventor of the machine. He has not given the consideration for an exclusive privilege, because the public had it before, and although he may have the merit of invention, he can not have the right to take from the community that which they possess by the invention of another. Howe v. Underwood, 1 Fish. 160.

If the prior inventor made the article, for whatever purpose, he has a right to say that no one else is entitled to a patent for it, although he did not perceive all its advantages. Richardson v. Lockwood, 6 Fish. 454; s. c. 4 0. G. 398.

The patentee is presumed in judgment of law to have had a knowledge of prior inventions, although the fact may have been otherwise. Silsby v. Foote, 2 Blatch. 260; s. c. 20 How. 378.

If the invention has been in use, or has been described in a public work anterior to the supposed discovery, the patent is void. It may be that the patentee had no knowledge of this previous use or previous description, still his patent is void. The law supposes he may have known it. Evans v. Eaton, 3 Wheat. 454; s. c. Pet. C. C. 322; s. c. 1 Robb 68, 243;