
    Whitely v. Swayne.
    •1. Where a patent has been grante.d for improvements, which, after a full and fair trial, resulted in unsuccessful experiments, and have been finally abandoned, if any other person takes up the suojeet-of the improve- ' uresis, and is successful, he is entitled to the merit of them as an original . inventor,
    2. He is-the first inventor, and entitled'to the patent, who, being an original discoverer, has first perfected and' adapted the invention to actual use.
    Whitely filed, a bill against Swayne, in the Circuit Court for Southern Ohio, to enjoin the use of a certain machine' known as the Kirbey .Harvester.
    As the case was presented in the argument, he relied upon ‘ a patent granted to one Steadman, May 23,1854, for an im-' provement in clover and grass-seed harvesters, which had ■ been'assigned to him (Whitely), and surrendered, and three reissues granted to him on the 19th June, 1860.
    The machine complained of, and sought to be enjoined, • had been originally patented to one. Byron Dinsmore. Dins-more’s .specification was sworn to, December 31st, 1850, and . was received at the Patent Office, January 10th, 1851. His patent ivas issued February 10th, 1852. He made and tried one of his machines in 1850, and .cut some .ten of twenty acres with it. In -1851 he made twenty-one of them., and between fifty and sixty of them in the following year. On the; 18th of April, 1852, three months after the date of Dins-, morels patent, Steadman filed a caveat in the Patent Office, in which he stated that he was engaged- in making experi-' 'mentS'for perfecting certain improvements in a machine for harvesting clover and grass-seed,' preparatory, to letters pat-' ent therefor. As already stated, this patent was granted May- 28,' 1854. Besides the caveat and tile patent, there was an account, given, in the testimony, of the working of tlie machine, by Mr. Hatch,, a neighbor of Steadman’s, who're-sided in Holley, Orleans-County, New York, in 1854. .The .machine was tried in. the neighborhood on several occasions in clover fields, but never went into successful practical operation;- No machines were ever made under the patent after the first, which was about the time the patent . was granted. The experiment appeared to have been wholly given up and- abandoned by Steadman as a failure; and it thus remained for some six years, when the complainant" (Whitely), took from, him an assignment of the patent, and procured the three reissues already referred to..
    The bill was dismissed by the court below, and the complainant brought the case here.
    ■ Mr. Fisher, for the appellant.
    
    
      Mr. Wright, contra.-
    
   Mr. Justice NELSON

delivered the opinion of the court.

The plaintiff's title, and the one upon which he must succeed against the defendant, if he succeeds at all, rests upon a patent for improvements in a machine for harvesting clover and grass-seed; which improvements, after a.full and fair .trial, resulted in unsuccessful experiments, and which were finally abandoned. They never went into any useful or1 practical operation, and nothing more was heard of . them from Steadman or any other person, for a period of six years. -At the end of this period the plaintiff* takes an assignment of the patentee, and is,-doubtless, vested" with all his rights. But what were those rights? Clearly, if any other person had chosen to take up the subject, of the im? proveménts, where it was left off by Steadman, he had a right thus to enter upon it, and if successful, would be entitled to the merit of them as an original inventor, for'he is the first inventor, and entitled to the patent, who, being an original discoverer, has first perfected and adapted the invention to actual use.

Hence, if Dinsmore’s patent was later tüan that of Stead-man, and was for similar improvements, .it would constitute a perfect defence against the shit in the present case, as,the plaintiff is obliged to rely wholly on this assignment of Stead? man, and stands in his footsteps, and has no better title. But the fact is otherwise. Dinsmore’s invention goes back-to (lie-year 1850. His first machine, was successfully tried in the' harvest of that year. Some twenty-one were made in the year 1851, and from fifty to sixty in 1852. Steadman’s caveat-was even not filed in the Patent Office til} after Dins-more’s patent was issued. The present defendant derives his title from Diusmore. The case is too plain to require any extended examination.

Decree Aeeírme». 
      
       Curtis on Patents, § 43, p. 37, and notes.
     