
    (common law.)
    Evans v. Eaton.
    Under life fi.tb.section of the patent law of 1793, ch; 156. the defend,ant pleaded the general issue, and. gave notice that tie woulq prove at Jim'trial, that the machine, for l he use of which, without license, the suit was brought; bad been used previous to the alleged ' invention .of the plaintiff, in several places which were specified in the notice, or in some - of them, “and also at sandry other places in Pennsylvania, Maryland,, and. elsewhere in the United States.” Tile- defendant having given tiVidincens to some of the places specified, offered evidence as to others not'specified: -Held, that this evidence was admissible. But tho powers oftho court, iri such a case,- áre sufficient to prevent, and will be « excised to prevent, the patentee from being injured by. surprise.
    Testimony, on the part of the plaintiff, that the persons of whose pri- or use of the machine the defendant had given evidence, had paid-the plaint iff for licenses to use the machine since his patent, ought not to he ' absolutely rejected, though'entitled to very little weight.
    
      Qume, Whether, under .the goneral patent law, improvements OB different machines cm be comprehended in the same patent, so as. to give a right to the e elusive use of several machines separately, as well as a right to .the exclusive use of those machines in combination 1
    
    ■ However this may be,, the act of the 21st January, 1808. ch. 117 “for the relief of Oliver Evans.” authorizes the issuing to him of a patent for his invention, discovery, and improvements, in the art of manufacturing flour, and in. thesevetal machines applicable to that purpose.
    Quiere, Whether congress can constitutionally decide .the fact, that a particular individual is an author or inventor of a certain writing or invention, -so as to preclude judicial inquiry into the originality of the' authorship or invention ?
    Be this as it may, the act for the relief of Oliver Evans does not decide that fact, hut leaves the question of invention and improvement opes to investigation under the general patent law.
    Unde; the sixth section of the patent law,c(i 156. if the thing secured by patent had been in use, of had been described in' a public work antffioy tothe sopppsed d seovery, thé patent ip void, wbpther the patentee had a knowledge of this previous use or description, pr feat.
    . Oliver Evans may claim, under hia/p itent, the pxoltisive use of his inventions and improvement in the art of manufacturing 'flour end.' fneal, «nd iñ the several-machine* which he lias invented, and in hi* Itnprov»menton machines previously .discovered. But where his cfufrey is for an improvement on a machine, he mnst show the extentof his imjii'reveineni *b that «'person understanding the subject may comprehend diatmcily in what it consists.
    i" henotfortlia relief of O. E. is engrafted on'the. general pateat, htvdj - eo' as to give him a right to sue in the circuit conri, for en infriagemenl ' of hie patent rights, although the .defendant may be a citizen of the same state with'himself. ’ ’
    Error, to the circuit court for the, district of Pennsylvania.
    This was ap action brought by the plaintiff in error^ against the defendant in error, for an alleged- infringemeht of the plaintiff^ patent right to the use of his improved hopper-boy,\ one of the several machines dieebvere.d, invented, improved, and applied by him”'to the art of manufacturing flour and meal, which patent was. granted on-the 22d January, Í8G8. The defendant pleaded the general issue, and gave the notice- hereafter stated.. The Verdict was rendered, and judigmen.t given thereupon for the defendant in the court below j on which the cause was bro ught, by writ of prro^,,to this court.
    At the trial.inthe court below, the plaintiff gave in’ evidence, the several a,Cts of congress entitled respec-. tively, “An act to promote the progress of useful arts, and to repeal the acts heretofore made -fop that purpose An act to extend "the privilege - of obtaining patents* for useful discoveries and inventtions, to certain persons thérein mentioned, and to enlarge añ'd defi ne penalties for violating the rights of patentees; ” and “An act for the relief of Oliver Evans;” the said- Oliver’s petition to the secretary of state, fgr a patent, and the patent thereupon granted to the said Oliver, dated the1 twenty-second day oi January, in the year 1808;* and further gavd ih eyedence, that an agent for the plaintiff; wrote a note to the defendant in answer to which, he called on the agent at Chambersburg, at thé house of Jacob Snyder, on the ninth of'August, 1813; there werb'a aumber Of millers present; the, defendant then told the agent-that he had got Mr. Evans’ Book, a plate in tie:.Millwright’s Guide, and if the agent would take forty dollars, the defendant would give it him;, the defendant said that his hopper-boy was taken fióín a plate in Mf. Evan’S book j he said he would give no mofe, alleging, that the hundred dollars the agejit asked wás too much; that the stream on which His mill was, was a small head of Conogocheage'. The agent then declared, that if the defendant would not .pay him by Monday morning, he would commence a, saitrin the circuit court.
    ' The plaintiff further gave in evidence, that another agent for the plaintiff was in. the defendant’s mill On the second of November,- IS 14, and saw a hopper-boy there, on the principles and construction oí the plain¿ tiff’s hopper-boy. This witness had heard that ’ a right wasxbtained under Pennsylvania; but did not ■known <of any rights under Pennsylvania sold by the . plaintiff 3 and did not know that it was erected in any mill after the patent under Pennsylvania. The de fendant’s hopper-boy had an upright shaft, with alead ing arm, in the. first place, and a large arm inserted. With flights, and leading lines, and sweepers; a little board, for .the purpose of sweeping the meal in the bolting hoppers and spreading.it over'the floor;' a ba. lance weight, tó cawse the arms to.play yp and down lightly over the meal. The leading arms were aboyt 5 feel long, a nd seemed-to be in pro portion, the arm about 14, and the length of the sweep about 9 inches. And. the defendant, havifig previously given "the. plaintiff written n'otice., that upon the trial of the '«¿use, the' defendant would give in evidence, under the general issue, ihe following special matter, to wit: “1st.- That.the improved hopperboyj for which* inter alia, the plaintiff in his declaration -alleges, be has obtained- a. patent, was not originally discovered by the patentee, but had been in use anterior to the supposed discovery of the patentee, in sundry places» to wit: at the mill of George Fry and Jehu Hollingsworth, in Dauphin* county, Pennsylvania; at Christian Stauffer’s mill in Warwick township, Lancaster County, state of Pennsylvania ; at Jacob Stauffer’s mill in the same county, at Richard Downing’s .mill in Chester, county, Pennsylvania; at Buffington’s mill ■on the Brandywine ; at Daniel Huston’s n¿l] in Lancaster. county, Pennsylvania; at Henry Stauffer’s milbin Yoyk county, Pennsylvania; and at DihPs mill -in the same county, or at ¡some of the said plaCés, and also at sundry other places in the said state of' Pennsylvania., the state of Maryland, and elsewhere-in the United .States. 2d. That the patent given t’ct the plaintiff, as he alleges'in his declaration, is more extensive than his discovery .or invention, for that certain parts of the machine in said patent, called an improved kopper-boy, .and'which the plaintiff elaiins as his. invention and-discovery; to wit, the upright shaft, ayftis,'-and flights, and sweeps,- or some of them, and' those.parts by which-the meal is spread, turned and gathered at one operation, and also several other parts, were'not originally invented and discovered by him; but were in use' prior to his áaid, supposed invention or discovery, to'wit, at the places above mentioned, or' some of them. 3d. That the said patent is also.more extensive- than the 'plaintiff’s invention or discovery-; -for that the application' of. the power thai moves the mill or other principal machine to the hopper-boy is riot an original invention or discovery of the plaint ff, but was in use anterior to his said supposed invention o'r- discovery, to- wit, at the places abové mentioned, or some of them. 4th'. That the said patent is void, becausfe it purports to give him an exclusive property in an improvement in the art of mapufácturing meal,, by means of a certain machine, terme.d an improved- hnpperboy, of which the said-plaintiff is not the original inventor or discoverer; parts of the machine in the description • thereof referred to by the patent, having been in use anterior to the. plaintiff’s said supposed discovery, to wit, at the, places above mentioned, or some of them; arid ifle-said patent and description therein referred to contains no statement,, specification, or description». 
      by which those parts, so used as aforesaid,' may be distinguished from those of which the said plaintiff may have-bepu the inventor, .or' discoverer, protesting at thé same timé that he has no,t been the inventor or discoverer of any of the parts of the said machine; 5th. That the improved elevator, described in the .declaration, or referred to therein, was not originally discovered by, the plaintiff, but was anterior to his said supposed discovery or invention, described in certain public works, or books, to wit, in Shaw’s Travels;. in the first volume of the Universal History; in the first vblume: of Mormer’s Husbandry; in. Ferguson’s Mechanics; in Bossuet ’s Histoire des Mathematiques; in Wolf’s Fours des Mathematiques; in Hesagulier’s Experimental Philosophy, and in Proney’s Architecture Hydrmlique, or some ,of them, 6th. That.the said patent is more extensive than the invention or discovery of the plaintiff, because certain parts of the «machine called ah improved elevator, were, anterior to the plaintiff ’s said supposed in- ■ vention or discovery, described in certain public works, or books, to wit, the works or .books above mentioned, or some of them ; and that the said patent is void, because it neither contains or refers to' any specification or description by which the parts so before described in the said public works, may be distinguished from those parts of which the plaintiff may be the inventor, or discoverer, protesting, at the same time, that he has not been the inventor or discoverer of any of the parts of the said machine gave in evidence the existence of hopperboys prior to the plaintiff’s alleged discovery at sundry mills in the state of Pennsylvania, mentioned in the said notice; and- farther offered to give in- evidence the existence of hopperboys prior to the plaintiff’s aiieged discovery, at sundry-other mills in the scute bf Pennsylvania, not mentioned in the said notice; and the counsel- for- the plaintiff objected to -the admission of any' evidence of the existence of hopperboys -in the said mills not mentioned in the said notice. But. Ih'e court decided that such evidence was competent and legal. To which • decision the . counsel for the plaintiff excepted. The ‘ plaintiff,- after the above evidence had been Ibid before- the jury, offered further to .give ia evidence, that certain of the persons mentioned in the defendant’s notice, as. having hopperboys in their mills, and also certain of the persons' not mentioned in-the said notice, but of whom it had been shown by the defendant that they had hopperboys- in their inills, had, since the plaintiff’s patent, paid the plaintiff for license to use his improved hopperboy in the said mills respectively. But the counsel, for • the defendant objected to such evidence as incompetent and illegal, and the' court .refused to-permit the same tobe .laid before the jury. To which decision the plaintiff’s counsel excepted.
    The court below charged the jury that the patent contained no grant of a right- to ’the several machines, but was confined to the improvement in the art of manufacturing flour by means -of- those machines ; and’ that the plaintiff’s claim-must, therefore^ be confined tó the right granted, such as it' was. That it had been contended that the schedule was paof the patent, and contained a claim to.the invention of the peculiar properties and principles of the hopperboy, as well as other machines. But the court was of opimon, that the schedule is to be considered as part of the patent, so far as it is descriptive of the machines, but not Farther; and even if this claim had been contained in the body of fhe patent, it would have conferred no right which was not granted by that instrument..
    The court further proceeded to instruct the jury that the law authorized the president to grant a pa. tent, for the exclusive right to make, construct, use, and vend to be used, any new and useful art, ma chine, manufacture., or composition of, matter,, or any new and useful improvement in.any-art, machine, &c. not- known or used before the. application. As to what constitutes an improvement, it is declared, that it must he in, the principle of the machine, and that a mere .change in the form' or proportions of any machine shall not be deemed a discovery. Previous ly to obtaining the patent, the applicant is required to swear, or affirm, that he verily believes that he- is the true inventor or discoverer of the art, machine, or improvement, for which he solicits a patent; and he must .also deliver a written description of his indention, and' of the manner of using it, so clearly and exactly, as to distinguish the same from all other things before known, and to enable others, skilled'in the art, ,'to construct and use' the same. That from this short analysis of the laW, the following rules might he deduced. 1st, That a patent may be for a new and ■useful art; but it must he practical, it must be applicable and referiahle to something by which it maj' be proved to he useful; a mere abstract principle cannbt be apprepriated by patent. 2d. The discovery must not only be useful, hut new; it must not.have been known or used before in any -part of the world. It •was contended by the plaintiff’s counsel; that the title' of the patentee cannot be impeached, unless it be shown that he knew' of, a prior discovery of the samé art, machine, &c;; and that true, and original are synonyinous.terms in the intention of the legislature.' But, as it was- not pretended that thosé terms meant the same thing in common parlance, neither was it the intention of-the legislature to use them as such. The first section of the law, referring to the allegations "of the application fpr a patent, speaks of the discovery as .something “not known or used before the application;” and, in the 6th ,section it is declared, that the defendant may give in evidence that the thing secured bv patent, was not originally discovered-by tbe pa- . tentea, but has. been ^ in use, had been described in some.public work anterior to the supposed discovery. 3d. ‘lithe discovery be of an improvement only, it must be an improvement in the principles of a machine. art. or manufacture, before known of used; if only. in the form or proportion, it has not the merit of a discovery which can entitle the party tó a patent. 4th. The grant can only be for the discovery as recited ■anil described in the -patent and specification. If the grantee, is not, the original, discoverer oi the art, machinev &c. for which the grant fs made, the wholé is void. Consequently, if the patent be for the-whoie of the machine, and the discovery were of an improvement, •the patent is void. 5th. A machine, oran improvement, maybe hew, and the proper subject of a patent, though -tire pajts of it were before known and in use. The com" %inatioh,Xherefore, of old machines, to produce a new and useful Jesuit, is a disco very for which & patent may' be granted.
    The above principles would apply to most of the questions that had beeft discussed. It was strongly insisted upon by the defendant’s cdunsel, that this pa tent is broader than the discqvery ; the evidence proving, that in relation to the hopperboy, for the using of which this suit is brought, the plaintiff can pretend to no, discovery beyond that of an improvement in. a machine known and used before the alleged discovery of the.plaintiff.' This argument proceeded. u,pop.the supposition, that the plaintiff had'obtained a patent for the hopperboy, which' was entirely a mistake. The patent was “ for an improvement in the art of. manufacturing flour,’’ by means of a hopperboy and four other machines described in the specification, and riot' for either of the machines so combined and -used. That the plaintiff is the original discoverer of this improve* ment, was contested by nd person, and, therefore, it coüld not with truth be alleged that the patent ishí easier than the discovery, or that the plaintiff could.bqt Support an action on thispatent against any person who should use the whole, discovery.
    But could, be recover, against a person who ;had made caused one of the machines, which in part;constitute the .discovery ? .The plaintiff insisted that .ire could, because,- having a right to the whole,:he is necessarily ' entitled' to the parts of which that whole is composed. Would it be seriously contended .that a person might acquire a right to the exclusive1-use of a machine, because when used in combination, with others, a new and useful result is- produced, which Be could not have acquired independent of that combi* -nation ? If he could, then if A. were proved to be the original inventor of the hopperboy; B. of the élevator,'and so on, as to the other machines, and either had obtained patents for their respective discoveries, or chose ■ to abandon them to the public, the plaintiff, although it was obvious he could not have obtained separate patents for those machines, might, nevertheless* deprive the original inventors, in .the first instance, and the public, in the latter, of their acknowledgéd right to use those discoveries, by obtaining a patent for an improvement Consisting in a combination of those machines to produce a new result.
    The court further charged the jury, that it was not quite clear that this action could be maintained, although it á¡vas proved beyond all controversy, that the plaintiff was the original inventor of this machine., The patent was the foundation of the action, and the gist of,the action was, the violation of a right which'that instrument had conferred. But the exclusive right of the hopperboy'was not granted by this patent, although this particular machine constitutes a part of the improvement of which the plaintiff is the original inventor, and it is for this improvement and this pnly, that the 'grant is made. If the grant then was not of this particular machine, could it be sufficient-for the plaintiff to prove in this action, that he was the original inventor of. it ?
    Again ; could, the plaintiff have obtained a separate patent for the hopperboy, in case he were the original inventor of it, without first swearing, or affirming, that he was the true-inventor of! that machine ? Certainly riot. Has 'the plaintiff then- taken, or could he have taken, such an oath in this case? Most assuredly he could not; because the prescribed form of the oath is, that he' is the inventor of fhe art, machine, or manufacture, for which he solicits'la patent. But s'ince the patent which he solicited was not for the hopperboy, but for.an improvement in the manufacture of flour, he might, with safety, have taken the oath prescribed by law, although he knew at the time that he was not'the true inventor of the, hopperboy; and thus. it. would happen that he could indirectly obtain the-benefit of a patent -right to the particular machine* which he could not directly have obtained, without doing what it must be admitted, in this case, he had not done.
    But this was not all. If the law had provided for fair and original discoverers a remedy when their fights are invaded,by others, it had likewise provided corresponding protection to: others, where he has not the merit. What judgment could the .district court have rendered on a scire facias to repeal this patent, if it had appealed .that the plaintiff was not the , true and original inventor of the hopperboy ? Certainly not that which the law has prescribed, viz. the repeal of the patent; because' it would he monstrous to vacate the whole patent, for an'invention of‘which the patentee- was the acknowledged' inventor,. because he was not the inventor of one of the constituent parts of the invention, for' which po grant is made. But the court would have no alternative, but, to give such a judgment, or, in effect, to. dismiss the scire facias ; and'if . the latter, then'the plaintiff would have beneficially the-'exclusive right to a machine, which could not be' impeached in the way prescribed by law, although it should be demonstrated that he was ncft either the trtie or 'the original inventor of it. And Supposing the jury Should be of opinion, and so find that the plaintiff was not the original inventor of'this, machine, would not the court be prevented from declaring the patent void, under the provisions of the 6th section of the law, for- the reason assigned why the district court could-apt render judgment'upon a seire facias % Indeed it might well be doubted whether the defence now made by the defendant could be supported at all in this action, (if this action could be maintained,) in as much as the defendant Cannot allege, in the words of the 6th section, that the thing secured by patent Was not originally discovered by the patentee, since, in point of fact, the thing patented was originally discovered by the patentee, although the hopperboy may not have been so discovered. But if this defence could not be made, did not .that circumstance afford a strong argument against this action 1 If *he plaintiff was not the inventor of the parts, he had no right to complain that thejF were used by other's, if not in a way to infringe his right to their combined effect. If he was the original inventor of the parts which constitute the whole discovery, or ahy of them, he might have obtained a separate patent for each machine of which tie was the original inventor.
    Upon the whole, although'the court gave no positive opinion upon this question, they stated that it was not to be concluded that this,action could be supported, even if -it were proved t]iat the plaintiff was the original investor of the hdpperboy. But if an action would lie upon this patent for the violation of the plaintiff’s right tq the hopperboy, still the plaintiff could not recover,- if R had been shown to the satisfaction of the Jury, that he was not the original discoverer of that, machine.
    ■ It appeared- by th'e testimony of the defendant’s'witnesses, that Stauffer’s hopper-boy Was in use. many years before the alleged discovery of the plaintiff 5 that the two machines- differed from each other very little in form, in principle, of in effect. , They were both worked by the same power which works the mill; and they both stir, mix, cool, dry, and conduct the flour to- the bolting chest. -Whether the flights and sweepers in the plaintiff’s hopperboy were preferable-to the slips attached to the .under part of .the aim- in Stauffer’s ; or whether, upon the whole, the former is a more perfect agent in-the manufacture of flour than the latter, were questions which the court would not undertake to decide.; because, unless the plaintiff wa8 the original inveptor of the hopperboy, although he had obtained a separate patent for it, he could Nñot - recovér in this action, however useful the improve» ment might be, which he had made in that machine. If the plaintiff had obtained a patent for his hopper-boy, it would have been void, provided the jury should be of opinion, upon the evidence, that his- discovery did nót éxtend to the vvhole machine, but merely to an improvement on the principle of,am old one, and if this hould be their opinion in the present case, the. plaintiff could not recover.
    It had been contended by the plaintiff’s counsef that the defendant, having offered to take a license from the. plaintiff, if he would consent to reduce the price of it to forty dollars, hé was not at liberty to deny .that the plaintiff is the'original inventor of this machine. This argument had no weight in it, not inere^- ^ because ^ 0^er was rejected, by the plaintiff’s agent, and was, therefore, as if it had not been made ; but because the law prevents the plaintiff from recovering, if it appear on the trial that he was hot the original inventor. If the offer amounted to- an acknowledgment, that, the plaintiff was th& original inventor, (and further it'could-not go,) this might be used as evidence of that fací, but it would not. entitle the plaintiff to a verdict, if the fact proved to be other, wise.
    The plaintiff’s- counsel had also strongly insisted, That under the eqüíty of the tenth section of the law, ttie defence set up in this ease ought not to be allow* ed after three years from the date of the patent. This argument might, perhaps, with some propriety, be ad" dressed.to the legislature, but was improperly urged to the court. The.law had declared, that in an action of this kind, the defendant may plead the general issue, and give in evidence that th.e plaintiff was not the originaFinventor of the ma'chine for which the patent was granted. The legislature has not thought proper to limit this defence,.in any manner ; and the court could not do it.
    But what seemed to be conclusive of this ppint was,, that the argument would tend to defeat altogether the provision of the sixth section, wjiich authorisesthis defence to be made ; for, if it could not be set up after three years from the date of the patent, it would be in the pow;er of the patentee to'avoid it altogether^ by forbearing to bring suits until after the expiration ©f. that period. And. thus, although the law has care- . fully provided two modes of vacating a patent improvidently granted, the patentee, though- not the original inventor, and, however surreptitiously' he may have.obtained his patent, may secure his title to the exclusive use of another’s invention, if he can for three v.ears avoid an Inquiry into the validity o,f his title.
    The last point was, that Stauffer’s,invention was, abandoned, and, consequently, might be appropriated . by the plaintiff. But if Stauffer was the original inventor of the hopperboy, and those not to .take a patent for it, it became public property by his abandon* snoent; nor could any other person obtain a patent for , it, because no other person would be the original inventor.
    To this charge the -plaintiff’s counsel excepted.
    
      Feb. 26th.
    Mr. C. J. Ingersojl, for the plaintiff,
    premised, that this patent granted an exclusive right for fourteen years in the improvement in the art, by means of the five machines,- and for the several machines , the pe* cuitar properties of each in its practical ¿esults, and the improvement of the art by the combination of the whole. The proof of this position is, that the defendant uses the precise machine, copied from the plaintiff's publication, and offered to pay for it; .but they differed in price, which let,! to the contesting the originality of the plaintiff’s invention.
    1.-It is said; in the charge of the court below, that the .action is founded on'the patent, which contains no grant off a. right to the several machines; but is confined to the' improvement in the art, by means of those machines. The patent is to be made out in the manner and form prescribed by the general act. What, are that manner and form?. By reciting the allegations and suggestions of the petition; giving a short description of'the invention, or discovery:; and thereupon granting an exclusive right in' the. said invention, or- discovery.\ The manner and form of these letters patent are a recital Of, 1st. The citizenship of the patentee. 2d. The allegations and suggegtions of the petition, as-to.both the improvement and the ma-chin.es in a short description, referring to the. annexed, schedule-for one more full and particular' ip the inventor’s own 'words. 3d. That he has petitioned agreeably to the special act. 4th. A grant of the said improvement. — The description must be - short and referential. It must be a description. By the first section of the act of-the 10th' of April, 1790, c"h. ■34, it was to be described .clearly, truly, and fully .perhaps because the board, constituted.'by that law, was to decide whether theydeemed ‘the discovery or invention sufficiently, useful or important for letters, patent. The patently express reference, adopts the special act in extenso. The connecting terms which ¡and said, bind the whole to the granting-clause ; the -állegati'ons and suggestions recited are part.of the' grant; the machines are the- means of every end, particular as well as general; nor can there^be any practical result without them. To confine such a patent to one general result from a combination of'the whole ¡machines, nullifies it. It is never so. in practice, and would • operate infinite injustice in other cases. 2. Hut the-schedule is párt of the patent inv all casas ;' in this case it is esneciallv' so. By the act of 1790, ch. 34, s. 6. the patent; or specifications are prima fads proof of everv thing which it is incuipbent on the plaihtiif to establish ; and by the existing law, the specification is considered as explanatory of the, terms used in the patent, so as to limit, or enlarge the grant. But .it is said in the grant, that the schedule annexed is made part of the patent, it is made so by the, public agent to avoid trouble, litigation, and unnecessary recitáis. , The petition, schedule, arid description, are all referred to, and incorporated with the patent. What does the law mean by a recital of allegations and suggestions ? What more can a petitioner do than allege and suggest ? He jcpnnot shape or' prescribe the manner and form of the' grant. The "charge denies that the schedule, at any'rate i’s more than descriptive of the machines, or that it would confer any right,' even if claimed'in the patent. But if no right would be conferred by insertion in the grant itself, what becomes of the argument which ascribes such potency to the grant ? The charge says, the grant can only he for the discovery as redted and described in the patent and spectjication. The grant is not for ¡¡he. parts, because u is for the whole ; not in tneir rudiments or elements ; not for wheels, cogs, qr weights, nor for wood, iron, or leather'; but for the peculiar properties, the new and useful practical results froto ;each machine, and the vast improvements from their combination in this art. The charge supposes it impossible to obtain a patent for a hopperboy, unless the plaintiff could swear that he invented that machine. But (he oath is not a material, or at least,- not an indispensable prerequisite. 3. The special act for the relief-of the . plaintiff, de.cídes híim ,to he the inventor of the machines and im" provements for which he has obtained a .patent. By the constitution, art. 1. s'. 8,. congress have potrer to promote the progress of science and the useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings - and discoveries .This has been done by, Congress in the instance of the plaintiff The special act is an absolute grant to him, binding on all the community, and prer eluding any inquiry into the originality of the invention.• It includes a monopoly iri his invention, discovery, and improvements in the art, and in the several machines • discovered, invented, improved, and applied, for that purpose. > The patent is to issue on a simple application in writing by the plaintiff, without any prerequisites of citizenship, oath, fee, or petition, specification and description to he filed. The act of 1793, ch. 158, requires all these, and then grants a patent for invention or discovery; whereas this grant is for that, and for improvements in' the art, and in the s'everal. machines. It is a..remedial act,'and should receive a liberal construction to effectuate the intentions of the legislature. The patent is as broad as the law, if the grant be governed by the recital. Its construction is to be against the grantor, and according to the intent,; nor is it to be avoided by subtle distinctions: .if there are two interpretations*- the sensible one is to be adopted-. 4. The improved hopperboy of the plaintiff is the Only new and useful discovery which was in evidence in the case; the court misconstrued the law in their charge in this respect, inasmuch as the true construction of it is not that the patentee shall be the first and original cjiscoverer of a - patentable thing, but “the true inventor” of such'a thing; that such a thing was truly discovered and .patented without knowledge of its prior use, or public employment, or existence: inore especially -where; as in the present instance, the controversy is not between conflicting patents, but between the true patenteelof a nesv and useful patentable thing, and a person-defending himself against an infringement,1 on the plea ofitspiiof us.e by third persons who had no patent,'and whose discovery, even if'proved, Was of a thing never in us.e or public existence, bpt in total disuse. The stat. 21. Jac; 1. ch. 3, s. 6. an. 1623, .grants the monopoly “of the sole working or ¿na* king of any manner of new manufactures, within this realm, to the trueand first inventor' and inventors of such manufact ures, which others at the time of making such'grant, shall not úse,” &c. It is contended,-under Our law, that the utility is to be ascertained as well as-the originality ; and that-thispas well as .that, is partly á question for the jury. The thing phtentaole must •be useful as well as- ¿lew. '.The useful' thing patented drevails over one, not useful nor patented, though in 
      previous partial existence: This is not the casé of conflicting patentees ; and to destroy this patent, the previous use must appear, there being no pretence of description in a public, work. The title .of the act is “fop the promotion of the useful arts.” The first section speaks of'“any new and useful arts,” not known- or used, &c.- The sixth, of that which “Had been in use, or described in some- public work' anterior to the supposed discovery.” What degree of use does-the law exact? a use known or -described in a public work. Not merely-an experimental, or essaying ; nor a clandestine, nor obscure use. It must be. useful,' and in use,- perhaps in known,, if-not public ,us.e; something equivalent to filing -a specification-off re.cord. Now here utility was lost sight of irt search of. novelty. It seemed to be taken for granted, that.pro- ihg the- pre-existence of an unpatented' hopperboy defeated- the .plaintiff’s patent. The desuetude, of the rival' hopperboy'from inutility was-•established* The .question was between' anew and useful patented machine, and an .useless and obsoleteane never patented; and which, not being, useful,never, could be patented. But that the patentee’s is useful'nobody questions. At all events,-.the question of fact, whether in usé, should have been left to. the jfíry. The jury ate substituted for the board, which, Under the first law, was to decide whether the .supposed invention was. “sufficiently useful- and important” for a patent- The coust below suppose Stauffer to have given his discovery to the public. - But it fell into disuse ; there w<*s nothing to giv.e. Stauffer did not know its value: if he bad abandoned ó field with .unknown treasure in the ground could he afterwards claim the treasure? — 5 The defendant’s testimony of the uSe of hopperboys in milla, not specified in his notice, was erroneously admitted. The object of the provision' in the 6th section of the patent law of 1793, c,lu 156, was to simplify the proceedings, and to enable the defendant to give in evidence under bis notice, what he would otherwise be obliged to plead specially.. The sufficiency of the notice is, therefore, to be tested by the rules of special pleading; which, though technical, are founded in goo.d sen.se and natural justice, and áre intended to put the adverse party,on his guard as to whát the other intends to rely upon 'in his defence. But such a notice as this could not answer that purpose. — 6. The plainliff’s testimony of the payment for licenses to use. his improved1 hopperboy, ought not- to have been rejected. It ought to have been admitted as circumstantial evidence entitled • to some, weight.
    Mr. Hopkinson and Mr. Sergeant, contra.
    1. The admissibility of evidence of the úse of the hopper-boy, anterior to the plaintiff’s .alleged.invention, in ' mills not specifically 'mentioned in the notice, deperids upon the construction that may be given to the §th section of the act of the 21st of February, 1793,.ch. 156,' taken in connection with the notice. This section is Substituted for tie 6th section of the act of the 10th of Apri], 1790, ch. 34. The office of the section, in each 'of these acts, is two-fold : 1st. Tosíate what shall constitute a defence. 2d. ' To state the manner in whhh. the defendant may avail'himself cf it. ' And whatever difficulties may exist (if any there be) in.,the construction of the rection, arise fiotn the combination of this two-fold object. That this was the object of the section is peifectly obvious. The general issue would lie a denial of the allegation contemplated by the 5lh section of tbe act of 1793, and the 4th of the act of 1790. If the acts had stopped there, it is manifest that the defendant could have had no defence, but what was- legally within the scope of the general issue.. The 10th section would not have availed him, became," the limitation of time, and the grounds for repealing a patent-upon a scire facias, are -totally'different from 1 those^ which ought to constitute a defence to the action. ' The patent may he opposed, in an action, upon the ground that the patentee is net .the original inventor; but it can be repealed only upon the ground that he is not the true inventor. Fraud • (proof that it was surreptitiously obtained) js.the necessary basis, in the one case ; but error and mistake is equally available in- the other. Neither could the defendant avai] himself' of the .provisions in the prior part of the act: For,- these are merely, dtr<ectory¡ and they terminate in the provision-made by the 5th section, which would have been conclusive* • The6th section is, therefore, a proviso to.the 5th. The 6tii section of the act of. 1790, made the patent prima facie evidence only, which- would have opened the inquiry as to the truth of the invention. It'appeavs, then* that, the object of the proviso was, in the first place. to settle what should constitute a defence. These matters would not have been within the scope of the general issue, by the rule's of pleading. They would have presented the subject of a'special plea in bar. The act, ‘therefore, at the same time provides, that they may be given in evidence under the general issue. The design, in this' respect, was to save the necessity of special pleading on the one hand, andop.the otler, to give a reasonable • notice. Does' the law require the evidence to beset out? No ; and yet,' if surprise is' to be fully guarded against, this ought certainly to be stated, in order that the plaintiff^ may prove that- it isialse, or proceeds from corrupt witnesses, &c. Is'it then necessary that all'the particulars should be givén^ the stale-, county, township, town, street., square, number of the house ? The law does not require it. What ■ certainty, then, is required in the notice? • The answer is obtained by ascertaining the use ahd intention of the section, which, were to save the. necessity of special pleading. What then" must be alleged in a spe-, cial plea? Not the evidence or facts, but the- matter of defence, which may be that the plaintiff was not the true inventor, but that the invention was before his supposed discovery. You must state what is the ground and essence of the defence, and nothing more ; all else is surplussage.' E.. G. That the plaintiff was not' the true inventor of the hop* perboy, but the same >was in use, prior to his supposed discovery, at the mill <f A. Now its being in use at the mill of A. is not of the qssence of ¿he defence, for it is as good if used at the mill f B. r the essence is, that it was used before. TV defend* ant then would be entitled to lay the place under á yideli^ét, nnd of course would not be obliged to prove it,-but fnight prove any other. If, then, the law did not mei n to increase the difficulty of ,the defendant, the' same'may'be done in a notice. Consider the in.* Conveniences of a contrary practice. Amachine has. been used rft a foreign country : the country, town, apd. place,' may be -iinknovm■ Shall I, therefore, be deprived of the benefit of my invention? Again, it is known. I'ani bound to give thirtv'days notice'before trial and no more. Cid bono, that I should mention a town or place in' England ? The intention is, that the., plaintiff shall come prepared to prove where his invention' was made, and not,to disprove the defend” ..ant’s evidence ; Ihht he shall have notice of the kind of defence intended* in order that he may shape hi?; case accordingly! If notice is given' that the defen^.antwill. give in evidence^ that the plaintiff’s machine wás. used:hefóre his supposed discovery, this is.no tice df special matter,' vencling to prove- that it was not invented by him-. Tlié law does not require a state._ ment or description oi tin special matter, hut notice., that special matter will.be given in evidence, tending to. prove certain facts.. There is no reciprocity jp the contrary rule. The' declaration i§ general; it does, not'specify the., date .of the invention, the place of .the invention,, nór thpj evidence, or . facts by which the . originality' and truth' c!,f the invention are'to be proved. Yet these are álf extremely important to the defendant,' to enable him ¡i(? prepare- his defence.- A.s. to tht breach, it is equally general; it does not state th«/wae, except as.a mete ' matter- of form, by which the plaintiff is pot bound. It does not state the plaoe^ except by the very liberal description necessary fo.r the. venue, but which is not at all binding.. And,, final» Jy, -the rule contended for is impracticable, ponsjstr ent.ly with the purposes of. justice; for it may, without; aftv fault of the defendant, deprive him p.f the benefit \©f a’perfectly good defence, upon, a,mqre requisition of fofm, which, he cannot possibly comply with. The-notice states that the use of the hopperboy at a numbej. of mills, specially described by the state, county, ^nd name of the proprietor, “and at sundry .other places in. tpe said state of Pennsylvania, me state of Maryland, apd,elsewhere in the.Únited States.” It is. pot alleged nor could it’be, that the' defendant had the knowledge that would have enabled him. to extend the., specific a,*. tjon. Nor is it alleged, that he qould•• have' acquired the..knowledge, by any exertion he might have roadej on the contrary,'the course be has taken is indicative of perfeptly fair intention. The exception is, that the de», fendant was permitted to give, evidence that the hcjj>perbpy “had been used at sundry other mills in .Penh» sylvania,” precisely in the words of thfe notice. To sustain this’exception, .then, the court must decide,¡that this cannot in a.py case be dope. But if it cannot bp shown, .that in a, single suppogable, case, this would, work injustice and defeat the, law, it is sufficient.. Now, it is very clear, that in many, cases,. this may. bp precisely the state of the. party’s knowledge, and all.be can obtain, and it .may be precisely the state of the.,evidence.' Suppose á witness should know that hopper-boys were used ip sundry mills, but n.ot their precise iocal situation, name of owner, &c.- Or, suppose he-, should have seen a hopperboy that bore the most evident marks of having been used in a mill, or mills. The effect of such evidence .is quite another question; its competency arid relevancy aro for the court; its credibility, ■ and the inferences of fact- that are to be made from it,are for the,jury. The same supposition would' apply to its having been described in a public work. It is necessary to give the title of the book, name of the author, and number of the edition ? This may be impracticable. The defendant may have a witness who has seen the thing in usq in a foreign country, and not-be able to give a single particular; or who has seen it described in a foreign work, of which he can give no further "account. Such evidence, if credited, would be efttirely conclusive; an.d yet he could have no benefit of it'because he. had not «Jone what was impossible. But even if the witness knows'all these particulars, the defendant has'no 'means of compelling him to disclose them before the trial. The rules of pleading aim to es ablish a convenient certainty on the record, by giving the party notice of what is alleged, and furnishing evidence of what has been decided. In many instances, they fal-1 short of this, their avowed design; in none do they go beyond it. For the purpose of preventing surprise, they áre wholly ineffectual; they give no notice of particular' facts, of evidence of, witnesses. The corrective of the evil, if evil there be, is to be found in the exercise of the general superintending authority of the court, applied to cases where there may really be surprise or fraud. So in this case, if there really had been surprise, (fraud.is out of the question,) the court had the power to grant a new tria!. This power is an amply sufficient corrective'; and its existence affords adecisive answer to the argument drawn from the possible injustice that may be done*' — 3. The exception to the refusal to admit evidence-of the payment, for the use .of licenses, will be easily disposed' of. The fact to be established pa the one side, and disproved on the other., was, that the ho'pperboy - was in use before the alleged invention or discovery of Evans. The evidence offered had no bearing whatever upon-the'.quesi-, tion .of fact. If -believed, it went no farther than to show, that thos,e who had paid, thought it best to pay \ a. decision that might be equally prudent, whether th® fact was, or was not; as alleged. Such testimony Would be more objectionable than the opinion- of the witness ; for it would be only presumptive proof of opinion, without the- possibility of examining its ■grounds. -As opinion, it would be inadmissible; as evidence of opinion, it would be still more objectionable. — 3., The plaintiff’s patent can only be considered in one of three points of view. -1st. As a patpnt for the improvement in the art of' manufacturing flour ; that is, for the combination. 2d. As a patent for the combination, and also for the several machines ; that is, a joint and several, {latent. 3d. As a patent simply for the several machines. It is very dear that the patent itself is. for the combination only; though.. it is equally clear; that by the terms of the law, ne might have obtained a patent'or the whole^. and also for the .i&veralparts. That this is the necessary construction of the patent, is plain from the patent itself, ta.; ken in Connection with the act of the 21st of January, ISOS, ch. 117. The act authorizes a.patent to be is 'sued for his improvements in the art of manufacturing flour, and in the several machines, &c. The matters, are pláinly diiFéreht. They are the subject of distinct patents, to be obtained' in the “mariner and, jform” prescribed by the act of 1793, ch. 156.. The object of the special act,, was to put Evans upon the samé footing as if his former patent had not héen issued ; but it did not mean to dispense with any of the requisites of the general law. With the general' Requisite (that he was the inventor) it could nót dispense ; the constitution did not permit it. By the general law, improvement in 'an art-,' and improvement in a machine, are dislihct patentable objects. This patentfs. only for the improvement in the art of manufacturing flour, and the .recital of the special act, and.tbe words “which” and “said” do not at all Help it. It is triie,< it is an improvement operated by means óf the machines, but not exclusively. The result may be’ sécuréd, without, securing the ¿deans. This patent was granted to the plaintiff; was recefyby him ; and must be presumed to be according to his application and his oath. The oath is, that lie ik the true inventor of the “improvements above specified which term is applied in the specification, as in the patent,, only to the art. But, it is. said the specification is.a part of the patent, 'and limits, or eiilargesit, as the ease may be.. . Mr. Justice Story, in the dase which has been cited* only says, that the specification may control the generality of the patent. But the specification- in the case now before the court,. does- not claim the machines. If the patent. was for a combination, the plaintiff’s action was gone; he could not maintain- it against á person using one of the machines.. If the patent was for the combination, and air so for the-several machines, that is'a joint and several patent, then the. patentee might proceed upon it as.the one or the other,.according’to-the nature of-the. alleged-invasion. If he proeeeded-upon it for a breach of the right.to the combination; he- must show the originality, of invention, and might he defeated by opposite proof; If for a breach xof the right-to any one of'the machines, he.might.be- defeated by' showing that he-was. not .the Original inventor of the machine.. So if it;tre considered a several patent, that is, as if he had five distinct patents.. But, in no-conceivable case, can hé stand ¡upon any but one of these three grounds, npr claim to. have the benefit of a larger, or even of-a different par tept.- -4. From-this analysis, which-is sneces.sary to prer. vent confusion, we-come to- inquire into.,the nature of the case presented to the court for decision, .and :to which , the charge was ta. be applied; premising, 1st.' That no»exception-.can be taken , to,what the; court,did' not give in charge to the jury; and -2dly. - T^mt no exception, can betaken Tp. an opinjpn, however ¡erroneous*,that had, no ,hearingjappp thp.ispue¡to-be decided by jhe jury. It is,apparent.from; the -record, that,the action of- tha plaintiff was founded upon The alleged: use, by the .defendant, of a machine called a hopper-boy, of which the plaintiff claimed to be the, inventor? that the evidence on both sides applied to this allegation, and to this alone; the plaintiff claiming to be the inventor, and the defendant denying it. The • charge of the court noticed the several arguments1 that had been used at the bar, . and examined the general question as to the chara°ter of the patent; upon which however,-, as it had not been discussed, no' opinion was given. This is clear: for if an opinion hud been expressed, it must have beeri.that the action was not: maintainable. Nothing short oí: that Would have been material. But the court- left the cáse, to the jary, as’ óí an action, that was< maintainable, and instructed them -as to the principles by* which it was tc* be decided; Which negatives the conclusion of any opinion having been given, that the action was not • maintainable. If the defendant1 bad requited the court to charge‘that the action was nótmáin tamable, and they had1 charged-that'it" was, of declined- to charge’ at alí, he wónld-have had ground • of* exception. But the-plaintiff Pannof complain, because fié has wiwsbis equivalent! tb a- decision ih': Ms fó^oar-; — r-61 '-TB'é> statute Of - Jabíes; [SI .Pec, I1, o. 3;)¡ Ai IX ld2^.' cOhfined monopolies W: the first, and tmedufentor's' OF manufactures riot known or. used, before; Onte1:htftii dted; and seventy yeatá had' elápsed When oUr'abt paSS-' eet;- commerce- and the arte had. ’ made such adVám-easy, such- facilities had been-Created’ fori the" diffúsiori of- knowledge, that every thing known by use, or described in,bo&te,. might; be considered, as common property. It would have, been strange to adopt Ufdfffeient .principle. The act of congress does not. -It is a mistake to suppose there is in this respect any difference between the act of congress and the act of parliament. One says useful” inventions, the other ** new arid useful;” but both have the expressions “ not used or known, before.”. A patent can only be upon an allegation that the applicant has invented something new and useful. Its novelty may certainly be questioned ; perhaps its usefulness. But where the defence is, that the thing was known or used before, is it necessary to prove the usefulness of the thing so known or used? The act does not require it; nor is there any good reason why the patentee should be permitted to controvert it.
    .Mr. Harper, in reply,
    insisted, 1. That the court below had erred in admitting testimony of the use of the plaintiff’s machine in mills not specified in the notice. The statute was not framed with á view to the benefit of the defendant ?\me. The notice to be given, is not that vague, indistinct, general notice, which is set up on the other side. It must be an effectual, useful notice ; such a notice as may put the patentee on his guard, and enable Him to see what are the precise grounds of defence. It must be more specific than a mere transcript of the particular class! of grounds of defence, such as suppression of parts, redundancy, &c. The circumstances of the tim$f the place when and where used, and by what persms, are essentially necessary in order to enable thá patentee to meet the defence. The burthen of proof is, in effect, thrown upon the patentee; and the law ' intended that he should- meet it'fairly. ‘ Súch a notice as that given in this case would, not ■ be good; if put into the form of. a special plea. The degree of certainty required in a -.plea, in the statement of the time and place when and-where material : facts have happened, is one of the most difficult questions of the law:; but-these circumstances must always be laid; and must be proved sis laid, whenever it ‘is- essential to enable the other party to. maintain his case. There is. a distinction between the matter, vf defence arid the evidence by which it is tobe maintained. A notice of the particulars of the evidence is! not reqriired, but etf-the'Time arid place where • the formér ‘ps.e -of The Tnachine in question occurred; Nor is'this unreasonable;’ for'it is highly improbable that any body would be. able- to testify 'as to the minute particulars of an invention.^ without being able to' remember in what wrirki he “had..-seen, it described, or to state In what place and s at what .time he had -seen it -used. — r21 The ■ special • act- for ffie plaintiff’s relief .is a distinct,, -substantive, Independent grant, rtecláring 'the plaintiff f© bp. the, original' inventó?, and as such, entitled to á .patent. -It ."Contains rio reference to the general patent lawy.nq.rdoe's it reserve • any-- right in others to contest The origiriality .of his .indention. The defendant, therefore,-cannot say-that'the plaintiff is not the inr ventor,- though he ma.y deny that he-hás violated the plaintiff ’s rights as inventor. Congress is net-Confined by the constitution to any particular mode of determining.-the fact who are' inventors or,authors.. :Ifc. is true, a patent or copyright can only he granted t© ,pn inventor' or author; hut the..originality of the in-mention or authorship may be determined by 'eongress itself, upon such testimony as it deems- sufficient,; or by an administrative act, by- the decision of some board or executive ‘officer; or, lastly, by a- judicial investigation: according ■ as the legislative will may prescribe either of these. several 'modes. The -act of -parliament, 15 Geo. 3, for the- relief-of Watt and Boulton, +he inventors of the improved steam-engine, and extending the, term'of their patent'for twenty-five, years, contained an -express provision that every objection in law competent against the patent; should be competent against the- act, “ to all • intents arid purposes, except so far as reídles 'to >the temí thereby granted.” The act of congress 'for the relief of Oliver Evans contains no .such provision. The conclusion, therefore, is; that th'e legislature- meant to iquiet ' him in 'his claim, after he 'had so long enjoy-' ed it, and in- consideration of his peculiar' merits, and of his’ former patent having been vacated for informality. — 3. The court, below instructed the ju- ' xy that "the patent was not for any one machine, but for the combined 'effect of the whole ; though they concluded by leaving it upon' the prior1 use, still'the. intimation' that the action could not be maintained; even-though the prior- use was hot proved,-'did ndt leave the fact to the jury free from bias'. Though • not a positive direction to the jury to find for the defendant, it had the effect of a nonsuit. The wishes of. the grantee, and the intention of the grantor, both extended, as well to a patent for the several machines, as to a patent for- the combined effect of the whole The word. improvement,” though in' the, singular num_ her, extends not only to the plaintiff’s improvement-in the art of manufacturing floury but to his improvement in the several machines by means of which the operations of the ait arg conducted. This was a patent for =an ‘ improvement on t'he particular machine in question, and not for its original invention. In this respect it is like that of Watt and, Boulton for their improvement *pn the steam-engine. — 4. The prior, use, which is to defeat a patent, wight to be a public use. The defence here set up, under the bth section of the patent law of 1793, ch. 156, was, that the patentee was not the original discoverer, and.that the thing had been in use, &C.. But how else could it be shown that lie was not the discover ;r, but by showing that it had before been in public, use 1 ‘ A mere secret furtive usé would not disprove, the fact of his being the original discoverer. If this were so, then the art of printing and gun-powder were not invented in Europe, because they had been before used in. a sequestered corner of the globe, like China.. But'there, is, a. distinction between a first discovery- and an original discovery. The art of printing was originally discovered in Germany, though it was first invented in China: So the plaintiff would not cease to be' the original inventor, of the hopper-boy, even if it had been proved that another similar machine had been before privately used in a single mill It'ought, therefore,, to have been left to the-jújy to find for the plaintiff, if they believed that the use was a secret use.
    
      c¡ent notice uñ tent law of 1793,01.156,of the prior use patented.1*””*’
    
      March 7th.
    
    
      
       “to JAMES MADISON, ESQ. SECRETARY OF STATE ;.
      The petition of Oliver Evans, of the city of Philadelphia, a citizen of the United States, respectfully showeth,
      That your petitioner having discovered certain useful improvements, applicable to various purposes, but particularly to thá art of manufacturing flour and meal, prays a patent for the same, agreeably to the act of congress, entitled, “an Act for the relief of Oliver Evans.”
      The principles of these improvements consist,-
      l; In- the subdivision of the grain, or any granulated or pulverized substance; in elevating and conveying them from place to-place in sat. H separate parcels: in spreading, stirring turning and gathering them by. regular and constant motion so as to subject them to artificial heat, the full action of the air to cool snd dry the same when necessary, to avoid danger from fermentation, and to prevent insects from depositing their eggs during the operation of the manufacture.
      2. In the application of the power which moves the mill, or other principal machine, to work any machinery which may be used to-apply the said principles, or to perform the said operations by constant motion and. continued rotation, to save expense and labour.
      The machinery by him already invented, and used for apply ing the above principles, consists of an improved elevator, in improved- conveyor, an improved hopper-boy; an improved drill^and an improved kiln-drier. For a particular explanation of the principles,'and a description and application of the ma chimes which he has so invented and discovered, he refers to the specifications and drawing hereunto annexed; and he is ready, if the secretary of the state,shall deem it necésSsry, to deliver models of the said machines.
      .olives, Evans..
      DESCRIPTION.
      .Of the several machines invented by Olver Evans, and used in his improvement on the process of the art of manufacturing . flour ur meal from grain, and which are mentioned- in his spe-. cification as applicable to other purposes.
      No. l._THE ELEVATOR.
      Plate vi. Fig 1. A B. represents an elevator for raising grain for the granary O, and conducting it by spouts into a number of different garnets as may be necessary, where a mill grinds separate parcels for toil or pay. The upper pulley- being set in motion, and the little gate A drawn, the buckets fill as they paás under the lower, and empty as they pass over the upper-pulley, and discharge'into the nioveab# spout B, to be by it directed to any of the different garners.
      Fig. 2 Part of the strap and bucket, showing how they aré attached.
      A, a bucket of sheet iron, formed Rom tlie plate-8, which.is doubled op and rivited at the corners, and rivited to tlie strap.
      B, a bucket made of tough wood, say willow,' from the form' 9, being bent at right angles at e c, one side and bottom covered with leather, and fastened to the strap by a small strap of leather, passing through its main strap, and lacked to its sides..
      C, a lesser buckePof wood, bottomed with leather, the strap. ■ forming one side of it.
      D, a lesser bucket of sheet iron, formed from the plate 1 f, and'rivited to the strap which forms one side of the bucket.
      Fig. 6. The form of a gudgeon for the lower pulley
      
        T. The form of the gudgeons of the shaft of the • upper pulley.
      12. The Form of the buckle for tightening the elevator strap.
      Fig. 17. plate vii, represents an elevator applied to raise grain into a granary, from a wharf, &c. b^ a horse.
      .16, represents an elevator raising the meal in a grist-mill.
      i 8, represents an elevator wrought by a man.
      Plate viii, 35, 39, represents an elevator raising grain from the hold of a ship,
      33, 3-1, represents an elevator raising meal from three-pair of stones, ina flour mill, with all the improvements complete.
      . Plate ix,; Fig. i. CD represents' an elevator raising grain from a waggon. J5. represents the moveable spout, and manner of fixing it, so bs to direct the grain intp ibe'difibrent apartmenls.
      Plato x. 2, 3, and 11, 12, represents elevators, applied'-to •raise rice in a mill for hulling an^l cleaning rice.
      The1 straps of elevators are best made of white harness, leather.
      Nó. II. — THE CONVEYOR.
      Plate vi. fig. 3, represents- a conveyor for conveying- meal from the millstones into the elevator, stirring it to cool at the same’operation, showing how the flights are set across the spiral line to change from the principle oFan endless-screw to that of a number of ploughs, which answer better for the purpose of moving meal, showing also the Idling flights set broadside foremost, and the manner of connecting it to the lower pulley of the elevator which turns it.
      Fig, 4 The gudgeon of the lower pulley of the elevator connected to the socket of the conveyor;
      5. An end view of the socket and the band which fastens ¡t to the conveyor
      
        Plate viii. 3T, 36. — 4 represents - a conveyor' for conveying grain from the ship to me elevator 4 — 5, wjth a. joint at 36j to let it rise and lower with the tide.
      44 — Í5. A conveyor for conveying grain to different-garners' from an elevator.
      St — 32. A conveyor for c'onveyijigtail flotfr'to the meal'elevator, or the coarse flour to Ih'e eye of the stone.
      Plate is, Fig. it, represents a conveyor for conveying the meal from two pair of stones, to the elevator connected to the pulley, which turns them both.
      Plate'x. 2 — 11, represents conveyors applied to convéy rtCe, - in a rice mill,- from «a boat or Waggon to'the- elevator, or fréií» the fan to an elevator.-
      No. III. — THE HOPPERBOY.
      Plate vii. Fig. 12, represents ahppperboy complete ft>r performing all the operations specified, except that only one «rií» is shown.
      AB, the upright shaft; CED, the arms, with-flights and sweeps.'
      E, the sweeper to fill the'bolting hoppers HH.
      CFS, tne brace, or stay, for steadying the arms.
      P, the pulley, and W, the weight, that is to balance the arms, to make them play lightly on the meal, and rise or fall, a* the. quantity increases or diminishes.
      ML, the leader. N, the bitch stick, which cap be tooted along the leading hue; to shorten or lengthen it.
      1 Fig.- 13. S3S, the arms turned bottom up, sho wing the flight» and sweepers - complete at one end, and the lines on the other end show the mode for laying, out for the flights, so as to have the right inclination and distance, according to the circle described by each, and so that the flights of one end’ may track between those of the other. The sweepers and the flights at each end of the arms are put on with a thumb screw, so that they maybe moved, and-so that these flights may be reversed, *° ^r*ie meah outwards from the centre,'and at the sama time-trail it round the whole circle : this'is of use sometimes,' when wé wish to bolt one quantity which we have under the hopper-boy., without -bolting that which we are grinding, and ye| to Spread that which we are grinding to dry ajrid cool,“laying round the lioppérboy, convenient to be shovelled under-it, as soon as .wo wish to bolt it.
      .'Fig. :15.' The form''of the pivot for the bottom' of the upright .shaft.
      
        H.. The plate put on the bottom of the shaft to rest on the shoulder of the pivot; this plate is to prevent the arm from descending so low ag to touch the floor.
      .Plate-yin. Fig 25, represents a hopperboy attending two . 'bolts in a-mill, with all the improvements complete.
      .Plate ix. Tho hopperboy is shown, over QQ, Fig. 4 is the ;armturned upside, down-, to show the-flights an sweepers.
      No: IV.-r-THE DRILL.
      Plate vi. Fig. 4, HG represents a drill conveying grain from: the different garners to the elevator, irí a mill for grinding par" -cels for toll or pay.
      PJate vii. Fig. 1-6. Bd a drill, conveying meal from the stones in a grist mill to the elevator.
      ' The strap of this machine may be made broadband the sub-' • .-stance to be moved -may be dropped oif its-upper surface, to be carried and dropped over the pulley at the-other end: in-this' case it requires one bucket like those of the elevator, to bring up any that may-spill off the strap.
      Fpr- full and complete directions for proportioning all- the ¡parts, constructing, and using the above-described machines, ,- see-the-book which I have published for that express purpose,.' entitled, “The Young Millwright and Miller’s-Guide.” Sed .plate.viii. representing a mill, with three pair of millstones, with all the improvements complete, except the.kilit:drier.
      
        No. V, — THE KILN-DRIER.
      Plateix. Fig. 2. A., the stove, which. may be constructed siraply.of six plates, and enclosed by a brick wall lined, with. a. ■mortar composed pf pulverised charcoal , and clay. B.-, the pipe lor carrying off the smoke. CC., the air-pjpes, corinect- . ing the space between the stove and ■ wall with the cohveyb'r. Dí)., the pipes for the heated air to escape. ■
      The air is admitted at the air hole below,’regulated hy a ttr> gis.ter as experience shall teach to be best, so as not to destroy* the principle which causes the flour to ferment easily, and iiae in the process of baking. The conveyors must be covered! .close, themeal admitted by small holes as it falls -from the mill-stones.
      OLIVER EVANS.’*
      Witness, Sami. H. Smith, Jo. Gales, junr.
      .6 THE UNITED STATES OF AMERICA;
      ■ To all whom these letters Patent shall come :
      
      Whereas Oliver Evans — of the city of Philadelphia! a cit-zen of the United Suites, hath alleged that he' hath invented a new arid useful improvement in the.art of manufacturing flour' and méal, by means of certain machines, which, he terms aln improved elevator, an'improved. conveyor, an improved hopper-boy, an improved drill, and an improved kiln-drier ; which machines a,re moved by the same power that moves the' mill or' other principal machinery, and in their operation súb'dividé any’’ ■granulated or. pulverised substance, elevate’arid carry the saíne from place to place in small and separate parcels, spread, ■stir, turn and gather them by regular and constant motion, so as to subject them to artificial bent, and-the air to dry and' -cool when necessary ; a more particular and full description in the words of the inventor is hereby annexed in a schedule-: which improvement has not been know’n or used • before his application — lias affirmed that he does verily believe that- .1 is the true’inventor or discoverer of the said impióvenienf,' agreeably to the act of congress entitled, “An act for the relief of Oliver Evans,” which authorizes the Seciétaty. of State to secure to him by patent the exclusive right to the use of such improvement in the art-of manufacturing Hour and meal, . and in the several machines which he has discovered, improved and applied to that .purpose ; he has paid into the treasur y ofthe- United States, the sum of--thirty dollars, delivered a receipt for the same, and. presented a'petition to the Secretary-of State, signifying a desire of Obtaining an.exclusive property in the. said improvement, and praying that a patent. ,may he granted for.that purpose :. These are therefore to grant, ■ according-to law, to the said Oliver Evans his heirs,-administrators, or assigns,.- for the- term Of fourteen y ears, from the twenty-second day of Januáry, 1808, the full and exclusive right and liberty of making, using, and vending to others to be used, the said improvement, a description whereof isgiven in tlm words of the said Oliv er Evans himself, in the sched. ule hereto annexed, and is made a part of these presents.
      
        In testimony whereof, I have ca used these Letter» to be made Patent, and the seal ofthe United States to be hereunto affixed.
      Given under my hand, at the city of Washington, this twenty-second day of January, in the year of our Lord, o tie, thou-. sand eight hundred and eight, and of the independence of the United States of America, the thirty-second,
      SEAL.
      TH: JEFFERSON.
      Ev the President,
      JAMES MADISON, Secretary ci State,
      City of Washington, To wit:
      I DO HEREBY CERTIFY, That the foregoing Letters Patent were delivered to me on the twenty-second day ■of January, in the.year of our Lord, one thousand eight hundred and eight to be examined ; that I have examined the same, and find them conformable to law. And I do hereby return the same to the Secretary of State, within fifteen days from the date aforesaid, to wit :■' on- this twenty-second day of January, in the year aforesaid,
      C. A. RODNEY, Attorney General ofthe United Staten
      
        THE SCHEDULE
      Referred to in these letters patent, and making part of the same' containing a desciiptinn, inthe words of the said Oliver' Evans^of his improvements in the art of manufacturing flour and meal.
      “My first principle is to elevate the meal as fast as it Í3 ground in small separate parcels, in continued succession and rotation to full on the cooling floor, to spread, stir, turn and expose it to the action of the air, ns much as "possible, and to keep it in constant and continual motion, from the time it' is ground until it be bolted : this I do to give the air full action, to extract the superfluous moisture from .lie meal, while the heat, gene, rated by the'friction of grinding, will repel and tfirowit off,- and the mqre effectually dry and cool the meal fit for bolting in the course of the operation, and save rime and expense to the duller. Also to avoid all danger from fermentation by its laying warm iri large quantities as is usual; and to prevent insect's from depositing their eggs, which may breed the worms often found in good flour. And further to complete this principle so as to dry the meal more effectually, and to ca.use the flour to. keep sweet a longór space of time, Í mean to increase the heat of the meal as it falls ground from the millstones, by application of heated air, that is t.o say, to kilhdry the meal as it is ground instead of kilndrying the grain as usual. - The flour will be fairer and better.than if made from kilndried grain, the skin'of which is made so brittle that it pulverizes and mixes with the fbur. This principle I apply by various machines xyhich I have invented, constructed, arid adapted to the purposes hereafter specified, numbered 1,2, 3, 4, 5.
      My second principle is to apply the power that moves the mill or other principal machine to work my machinery, and by tbppt.to perform, various operation? which have always hereto.fore been performed by manual force, and thus greatly to les* sen the expense and labour of atfendingmiils and other works!
      The application of thoso principles, including that of kiln-drying ithe meal, during the process of the manufacture, or otherwise to the improvement of the process pf manufacturing flour, and for other purposes, is whát I claim as my invention' and improvement in the art', as not having been known or used before my discovery, knowing well that the. principles', once applied by one set of machinery, to produce the desired effect, others may be contrived and variously constructed, and adapted to produce like effects in the application of the principles, but perhaps none to produce the desired effect.more com-' pletely than those which I have invented and adap,od to the' purposes, and which are hereinafter specified.
      No. 1. THE ELEVATOR. Its use is to elevate any grain, granulated or pulverized substances.' Its use in the manufacturé of flour or meal is to elevate the meal from the millstones in'small separate parcels, and to let it'fall through the air on the cooling floor as fast as it is ground. It consists of friendless strap, rope, or chain, with a number of small buckets attached thereto, set to revolve round two pulleys, one at the lowest and the other at the highest point between which the substance is to be raised. These buckets fill astheyturn under the lower and empty themselves as they turn over the upper pul-ley. The whole' is inclosed by cases of boards to prevent waste.
      No. 2. THE CONV.EYER. Its use is to convey any grain, granulated or pulverised substances, in a horizon (a 1, ascending,- or descending direction. Its use in the process of the art of manufacturing flour, is to convey the meal from the millstones, as it is ground, to the elevator, to be raised, and tp keep the meal in constant motion, exposing it to the action of the air; also in some cases to convey the meal from the elevator to Ahe bolting hopper, and to cool rind dry it fit for bolting, instead of thehopperboy, No. 3; aleo to mix the Hour after it is bolted, also to convey the grain from one machine to another, and in this operation to rub the impuritiesoff the grain'. It consists! pf an endless screw, set to revolve in a tube, or section of. a tube; receiving the.substance to be moved át one end, and delivering it. at the other end; , but for the purpose of .conveying flour or meal, I construct it as follows : instead of making it a continued spiral-which forms the endless screw1,1 set small boai ds, called flights, af,an angle crossing the spiral line; these flights operate like so many ploughs following each other, moving the meal from one end of the tube to the other with a continued motion, turning and exposing it to the action of the air to he cooled and dried. Sorpetiraes I set-some of the flights to move broadside foremost, to lift tire meal from one side to fail on the other, to expose it to the air more effectually.
      No. 3. THE HOPPERBOY. Its use is to spread any gram, granulated, or pulverized substance, over a floor or even surface, to stir it and expose it to the air to dry. arid cool it, when necessary, and at the same time to gather it from tlie circumference of the circle it describes, to or near the center, or to spread it from the center to the circumference and leave it in the place wh.er.e we wish it to be delivered, when sufficiently, operated on. Its use in.the process of manufacturing flout1, is to-spread the- meal as fast as it falls from the elevator' over the. cooling floor, on the area of a circle, of from eight to sixteen feet more- or less in diamater, according to the work of the mill tó stir, and turn it continually, and to expose it to the action of the air to be dried and cooled; and to gather it info the bolting hoppers, and to attend the same regularly. It consists of an upright shaft made round at the lower end, about two thirds of its length, and set to revolve . on a pivot in the centre of the cooling floor;, through ■ this shaft say five feet from the floor; ■ is put a piece called the leader, andthe lower end of'the shaft-passes very loosely through a round hole -in the centre of another piece called the arme, say from eight to sixteen feet in length, this last piece revolving horizontally, describes the circle of-the"Cooling floor, and. is led round by. a cord, the two ends of which are attached to the two ends of tlje arms, and passing'through a hole at each end of the leader, so that the ®ord will reeve to pull each end of the arms equally. The weight of the aims is nearly balanced by a weight hung to a cord; which is attached to the arms, and passes over a pulley near to the upper end of the upright shaft, -to 'cause the artas to play- lightly, pressing with only part of their weight bn the mea] that may be under it. The - foremost edges of the arms ar sloped upwards, to cause them to rise over and keep on the surface of the meal as the quantity increases ; and if it be used separately and unconnected with.the elevator, the meal may be thrown with shovels within its reach, .while in mr>tion,andit will spread it level, aiid rise oyer it until the heap be four feet high or more, which it will gather into tlie: hoppers, always taking from the surface, after turning it to the air a great number of times. The underside of the ->e arms* are set with little *nclimng boards called flights, about four inches apart next the centre, and gradually closing to about two inches next the ex* trensities, the flights of the one . arm to track between those of the other, they operate like ploughs, and at every revolution of the machine they give the meal two turns towards the centre of the circle', near to which are generally the bolting hoppers. ’ At each extremity of the arms there is a little board attached to the hindmost edge of the atfm to move side foremost» these are called sweepers ; their use is to receive the meal ak it falls from the eleyator, and trail it round the circle-described by the arms, that the flights- máy gather ittowards the centre from every part of-the circle; without these, tais machine would not spread the meal over the whole ¡area of the cirel® described by the arms. Other sweepers are attached to that part of the arms which pass over the bolting hoppers, to sweep *11® meal into them.
      
        But if the bolting hoppers be near a wall- and not in the centre of .the cooling floor, then in this - case the extremity of the arms are made to pass over them, and the meal from the elevator let fall near the-centre of the machine, an.d the flights are ¡reversed to turfi the meal from the .centre towards the circumference, and the sweepers will sweep it into the1 hoppers. Thu», this machine receives the meal as it fells from-the ¡elevator-on .the cooling floor,spreads if over the floor,.turns it twice over a* every revolution, stirs, and Iseeps it ip continual motion, and! gathers .it at the'same operation' into the bolting hoppers, and attends them regularly. ' If the bolting reels are stopped, this .machine spreads the meal and - rises over it, receiving under it .from one., -two, to three hundred bushels, of meal, urjtil the bolts are set in motion again, when it gathers the meal into the hoppers, and as the heap diminishes, itfollows it down until all is, bolted. I claim as my invention, tpe -peculiar properties or principles which this machine possesses, vis;, the spreading-»' turning and gathering the rneal at one operation, and the rising and lowering .of ils arms by its motion, to. accoinmodate'itself to any quantity of meal it has to opérate on.
      No. 4. THE DRILL. Its use is to move any grain", granulated or pulverized substance, from one place to another : it-consists, like the elevator, of an endless straps rope or chain Sic. with little rakes instead of buckets, (the whole cased with boards to prevent waste) revolving round two pulleys dr rollers. Its use in- the process of the manufacture of flour; is to draw . or rake the grain or meal from -one part of the mill to another..' Its-receives'it at one pully, and delivers'it at the other, in. a horizontal, ascending or descending direction, and in-some case® mtiy be more conveniently applied for that .purpose than the conveyer. -1 claim the exclusive right to. the principles, and to .all the machines above specified, and for all the uses and purposes specified, as not having been heretofore known or used before .1 .discovered them. They may all be united and combj ned in one flqur mill, to produce • my improvement on the art of manufacturing , flour complete, or they may each be used ■ separately for any of the purposes specified an<l alibied tb.thetp» or to. produce my improvemept in part, according to thecisv1 '«¡instance of the case.
      No. ñ. THE KILN-D1UER. To kilridry the meal after lit is grbúnd, and during the operation'of the process of manufacturing flour, I tako-a close stové .of any common form,'.and enclose it with a wall made of the best nonconductor of'heat; leaving a small space between the stove arid the wall, to admit air to be heated in its passage through this space. 1 set this' stove below the conveyer that conveys the meal from $he mill stones as ground into the elevator,'and Í connect the'Space- between the stove anti tliewalbio- the conveyor tube by a pipe'Catering nfear the elevator, and I cover the conveyor close, end - set a.tube to rise from, the end of the conveyor tube near the mill stones-, for .the béated air to ascend and escape as up a. chimney. Í make fire in the stove, and admit'air at the bottom of the space between it and the wall round it, to b.e heated and ■pass along the conveyer tube, meeting the meal which will' b> heated by the hot air, and the superfluous moisture will be more ■ powerfully repelled and thrown of, and the meal will be driéd and cooled as it passfes through the operation óf thé elevatói- and hopperboy. The flour will b.e fairer than if the grain had been kilndri.ed, and it will keep -longer sweet» than flour riotkiindried. I set all ¡toy machines in motion by the common-means of cog and round tooth, and pinion straps, ropes, or- • chains,-well known to every millwright.
      Arrangement, and connexion of the several machines,- so as ’to-apply my principles to produce my improvements complete'.
      I-fix a spout through the wall of the mill for the grain to be .emptied-into, from the wagoner’s bag, to run into a box hung' at the end «of a scale-beam to weigh' a waggon load ata draught. From this box it descends into the grain elevator, which raise* it to the granary over the cleaning machines, and as it passes .through them, it may be directed into the1 same elevator to ascend .to be cleaned a second time, and then' descends into a granary, over the hopper' of the mill-stones to supply them regularly, and as ground it falls from the several pair of mill-stones-into the conveyors, where it is dried by the heated air< of the kiln-drier, and is conveyed into the meal elevator, to be raised- and dropped on the cooling floor, within reach of the hopper, boy, which receives and spreads it over the whole area of the circle which it describes, stirring-'and turning it continually, and gathering it into the bolting hoppers which it attends regularly; The part of the flour which is not sufficiently bolted by .the first operation., is conveyed by a conveyor or drill, into the elevator, to ascend with the meal to be bolted over again, and that part ofthe 'meal which has not been sufficiently ground.at the first operation, is conveyed by a conveyor or drill, and let ruft into the eye bf the-mill stone to be.ground over.
      Thus the-whole of the operations which used to be performed by manual labour, is, from the time the wheat is emptied from the waggoner’s bag, or from the-ship’s measure, until it enters the bolts and the manufacture be completed in the most perfect manner, performed by. the machinery moved by the power which moves the mill, and this machinery keeps the meal in constant motion during the whole process, drying and cooling it more completely, avoiding all danger from fermentation, and preventing insects from depositing their eggs, and performing-all the operations of grinding'and bolting to much greater perfection, making the greatest possible quantity of the best quality of flour out of the graiii, saving much time and labour and expense to the miller, and preventing much from being wasted by thq motion of the machines being so slow as to cause none of the flour to raise-in' form of dust, and be carried a wav by the .air, and the cases of the machines being made close, prevents any from being lost.” •
      OLIVER EVANS.
      Witnesses Samuel H. Smilb,. Jo. Gales, jun.
      
        Washington County, District of Columbia^ viz.
      THIS 4th day of .November, 1807,.pet sonally appeared before me, a.justice of the peace in and for said countv. Olive F Evans, who, being duly affirmed according to law. declare» {hat he is a citizen, of the United States, and,that his usual: place of residence i* in the city of Philadelphia, and that he verily believes. th¡ he is the true and original inventor of the improvements he., m. above specified, for which be'solicits-a. patent.. OLIVER EVANS.
      Affirmed before me»
      SAM. H. SMITH
    
    
      
      
         Whittemore v. Cutter, 1 Gallis. 437.
    
    
      
      
         Whittemore v. Cutter, 1 Gallis, 433.
    
    
      
      
         Whittemore v. Cutter, 1 Gallis, 430.
    
    
      
      
         Jenk. Cent. 133. Eystor v. Studd, Plowd 467. The U. S. v. Fisher, 2 Cranch. 386. 399.
    
    
      
      
         Grotius de J. B. ac. P. I. 3. ch. 20, s. 28.
    
    
      
      
         Whittemore v. Cutter, 1 Gallis. 497.
    
    
      
      
         Hornblower v. Boulton, 8 T. R. 95. 97.
    
   Mr. Chief Justice MArsham.

delivered the opinión of the court.-

In this case exceptions were taken m the circuit court, by the counsel for the plaintiff in error,

Isi. To the opinion of the court, in .admitting testitnOny offered by the defendant in that court.

3d. To its opinion in rejecting . testimony offered by the plaintiff in that court.

3d. To the charge delivered by the judge to the' jury.

Under the 6th' section of the act for the promotion' of useful arts,- and to repeal the act heretofore made for that-purpose, the defendant pleaded the general • 1 • 1 , , , . issue, and -gave notice that he would prove at the trial, that the improved hopperboy, for the use of which, without license, this suit was instituted, had been used previous to the alleged invention of the said Evans^ in several places, (which were specified in the notice,) or in'some of them, “and also' at sundry other places in Pennsylvania, Maryland, and elsewhere in the United States.” Having given evidence as to- some of the places specified in the notice, the defendant offered evidence as:tó some other places hot specified. This evidence was objected to by the plaintiff, but admitted by the court; to Which admission the plaintiff ’s' counsel excepted.

The-6th section of the act appeals to be drawn on the idea, that the defendant would not be' at liberty to contest the validity of the1 patent on the general issue. It therefore intends ro relieve the defendant from-the difficulties of-pleading, when it allows him. to give -in evidence, itiatter which does affect the patent.' But the notice is directed for the security of the plaintiff,*1 and to protect him-gainst that surprise to which he might be exposed, from an unfair-use ,of this privilege* Reasoning merely on the words directing this notice, it might be difficult to 'define,, with absolute precision, what it ought to- include, and what it,"might omit.. There are, however, circumstances in the act which, may ha've sojne influence-’on this point. It has been already observed, that the notice is substitute# Spr a special.plea it is farther to be observed, that it is' a substitute' to Which the defendant is not obliged to resort. The notice is'to be given only when'it-is-intended 1 to offer the -special matter in-evidence on the general issue;. The. defendant is not obliged: to pursue this course. He may still plead specially,.and then thé plea is the only notice which the- plaintiff cam claim, if,, then, the defendant* may give in evidence* on a special plea the-prior use of the machine hfc places not specified in his plea, it would . seem tp follow that he may give - in evidence its use at- places* not specified in his notice-. It is not believed that a plea would, be defective-, which did not state the mills-in .which the machinery alleged to he previously use# wajs, placed*

But there is still another view of this subject r which- deserves-to Be considered. The- section which directs this notice, also directs that if the special matter stated in the section .be proved, ‘f judgment shall, btj rendered for,the defendant, with costs,.and the patent shall be -declared void.53 The .notice might'.be: intended not only for the information of the plaintiff* but for the purpose of spreading on the record the cause for which the patent . was avoided. This object is accomplished by a notice which specifies the particular-matter to be proved. The ordinary powers of .the court are sufficient to prevent, and will, undoubtedly, be. so exercised, as to prevent the patentee'from being, injured by the surprise.

on tlie part of the plaintiff, that t/hosepriovuse l’ad given evidence,had paid oftheplaimifffor ils^maehim^ jeoted, though eniitledtoverjr weight.

This testimony having been admitted, tjie rr 3 , * . , ottered to prove that the persons, of whose prior use of- the-improved hopperboy the defendant had given, testimony,, had paid the plaintiff for licenses to. use improved hopperboy in their mills since his pate'nt. This . . * testimony was rejected by the court, on the motion the defendant, and to'this opinion of' the court, also, táie plaintiff excepted.

The testimony offered'by the plaintiff was entitled . . . • to very,little weight, but ought not to have been lutely rejected. Connected with other testimony! and under some circumstances, even the opinion of a party may be worth something. It is, therefore, -in s.uch a case- as this, deemed more safe to permit it to go to the jury, subject, as all' testimony is, ' to the animadversion of the court, than entirely to exclude it.

We come next to consider the charge delivered to the jury.

The errors alleged in this charge may be considered yndér two, heads:

1st. In construing,the patent to be solely for the general result produced by the combination, of all -the machinery, and .not for the several improved machines, as well ag for the general result.

2d. That" the jury must find for the defendant, if they should he df- opiiiion, that the hopp-erhoy was' in use-prr- *** the invention of.the improvement thereon, by. Oli— .vér Evans.

Qwre, wh«-’ flier, unde,rthe gfeneral patent la<v-, i!^Drnrerent'machines ded inthc¿amc pateht, <£lVQ*a light'^O the-exclusive ttse of several jnadiínes weBShecx* tlosemachhjes however aútlíorisílti'n10 híspase.

.■ The construction of.Ihe patent must certainly •depend' on the words of the instrument. Blit where, as in this •cáse, the-words are-ambiguous, these maybe circumstances'which ought to have great.influence .in eapoiinding them. The intention oft he. parties, if that intention can he collected from sources which the princijll.es of law permit us .to . explore, áre entitled’to great consideration. , Bat before we proceed to’this investigation, it may not be improper to notice the ex-, tent of the authority under which this grantwas issued.

Nhe authority of the executive to make this grant,' is derived'from the general-patent law, and from the áct _ r ' •• for the relief of Oliver Evans.' On the general patent' law- alone, a doubt might well-arise, whether improvements on different machines could regularly be comprejn saras patent, so as'to give a right to the ’ r 7 1 . ° exclusive use of the several machines separately, as- • • , , , as arignMp the exclusive use ot those machines: in combination. And if such a patent would be irreg^arj ^ would ceriainly furnish an argument of no in-weight against the construction. But the for the relief of Oliver Evans’* entirely removes doubt. That act authorizes the secretary of-state *ssue a Patent> granting to.the said Oliver Evan's the full and exclusive right, in his invention, discovery, and improvements ,in the art of manufacturing' flpur, and Mi the several machines, which he has invented,• discovered,improved, and applied to that purpose.

intention of patent to O. E.

Of the authority, then,, to make this patent co-extensive with the const ruction,for which the plaintiff’s counsel contends, there can lie no doubt,

The next object of inquiry is, the intention of'the parties^ so far as it may be collected .from sources to which it is allowable to resort,

The parties are the government, acting by.its agents, apd Oliver.Evans.

The intention of the.government muy be collected from the “act for the relief of Oliver Evans.” That act not onlyconfers the authority to issue the grant, buti expresses the intention of the legislature -respecting its extent. It may fairly be. inferred from it, that the legislature intended,the patent to include both the general result, and the particular improved machines, if such should be the wish of the applicant. That the executive -officer intended to make the patent co-extensive with the application of Olier Evans, and with the special act, is tó be inferred from the ■ reference to both in the patent itself. If, therefore, it shall be satisfactorily shown from his application, to have been tae intention of Oliver Evans to obtain a patent including both objects,that.must be presumed to have been also the intention of. the grant- or.

The first evidence cf the intention of Oliver Evans is furnished by the act for his relief. The fair presumption is, that it conforms to his wishes ; at least, that it does not transcend them.

The second, is his petition to the secretary of state*. which speaks of his'having discoverer1 certain ’useful improvements, and prays a patent .for them, “agreeably . to. the act of congress, entitled, an act for the 'relief of Oliver Evans.”. This application is.for, a patent-co-ex- . tensive with the act.

This intention.is further manifested by his specification. It is not to be denied, that a part of this specification- would indicate an intention to consider the combined operation of all his machinery as a ^single 'improvement, for which,, he solicited a patent But the, whole taken together, will' not admit of this exposition. The several machines are described with that distinctness which would be used by a person intending to obtain a patent for each. In his number 4., which contains the specification of the drill, he asserts his claim, in terms, to the principles, and to.all the mar chines he had specified, and adds, “they may all be united and Combined in one flour-mill, to produce n>y improvement in ihte art of manufacturing flour complete, or they maybe used separately for any of the purposes specified and allotted -to-them, or to produce my improvement in part, according to the -circumstances' .'of the case.”

'Being entitled by law to a patent for all and feach ■of his discoveries; considering himself, as he avers in his specification and affirmation, as the inventor»-of each of these, improvements; understanding, as he dedales he did, that they might be used together so as to produce his improvement complete, or Separately, ■ soas toproduce.it in part;- nothing can be more iifaprobable, chan that Oliver Evans intended to obtain a patent solely for their combined operation. His affimation, which is annexed to his specification, confirms this reasoning. To the-declaration that he is the inventor of these improvements, he adds, “for which he solicits a patent.” >

Construction QleE pat*“t

With this conviction of the intention with which it was framed, the instrument is to be examined.

The patent begins with a recital, that Oliver Evans ■had alleged himself to be the inventor, of a ne'w and useful improvement in the art of manufacturing flóur, &.c. by the means of several machines, for a description Ofwhich reference is made to his specification.

It will not be denied, that if the allegation of Oliver Evans was necessarily to be understood-as conforming to this recital, if our knowledge of it was to be derived entirely from'this source, the fair construction would be, that his application was singly for the exclusive-right to that improvement which was produced by the combined operation of his machinery. But in construing these terms, the court is not confined to their most obvious import The allegation made by Oliver Evans, and here-intended to be recited, is in his petition to thesecretary of state. That petition is embodied in, and becomes a part of the patent. It explains itself, and controls the. words of reference to it. His allegation is not “that he has invented a new and Useful improvement,” but that he has discovered' certain useful improvements. The words used by the department of state in reciting this-allegation, must-then be expounded by the allegation itself, which is madfe á part of the patent

The recital proceeds, “which improvement has not been known,” &c. These words refer clearly to the. improvement first mentioned and alleged in the petition of Oliver Evans, and are of course to be con-, trolled-in, like manner with the antecedent - words, by • that .petition. This part of the recital is concluded by adding, that Oliver Evans-has affirmed, that -he -does verily bélieye. himself to be .the.true investor or discoverer Of the said improvement.

But the affirmation of Oliver Evans, like his petition, is¡. embodied .in the grant, and-must, of course, expound the recital of it.- That affirmation is, that he does verily believe himself to he -the true and original inyentor of the imprcvemcntsc.cntained in his specifitioiu,

In every instance, then, in which the word improvement is used in the singular number - throughout the part of recital of this patent, it is used in reference to a paper contained in. the body of the patent, which corrects the term, and shows it to be inaccurate.

. The patent, still by way of recital, proceeds to add, “and agreeably to. the act of congress, entitled £an act for the relief of Oliver Evans,’which authorizes! the secretary of state to'secure to him, by patent, the 'exclusive right to the use of such improvement in the ait of manufacturing flour' an 1 iheal, and in 'the* several machines which he has discovered1, improved, and applied to that purpose ; he has paid into the treasury, &c. and piesented a petition to the secretary of state, signifying a desire o"f obtaining an exclusive property in the said improvement, and praying that a patent may be granted for that purpose.”

To what- do the words “said .improvement” relate? The answer which has been given at the bar is entirely cOrtect. To the improvement mentioned in the stat-i ufe and in tim,petition, to both of which .direct refer enee is made'i £but in.the statute, and in the petition, the Word used, is “irriprwements'f'-'m the plural.. The patent, therefore, obviously. affixed to the word improvement, in the singular, the same sense in which the ' plural is1 employed,, both in the statute and .in the petition. We are compelled' from the whole context so to construe the word in every place in vfliich it is tiSed in the recital, because' it is constantly employed With express reference to the act of congress, Or tó Some document embodied in-the patent, in each of which 'the‘pleural is1 used*

' When, then, the words “said improvement”- are us1ed as a term of grant, they refer to'the Words Of the recital,- which' have been already noticed, and, miist be construed in the same sense. This construction is rendered the more necessary by the subsequent words, •Which refer for a description of -thd improvement to the schedule. It also derives some weight from the words ‘^according to law,” which are annexed to the words of grant. 1 These words can refer only to the general patent law,'and to the'“act for the:relief of Oliver Evans.” These acts, tahen together, seem to require that thé patent should:- con* form to the specification, affirmation, and petition of the applicant.

It would seem as if the claim of \01iver Evans was rested-at the circuit- court, on the . principle, that a grant for an improvement, by the combined--operation of all the machinery, necessarily-included a right to .the distinct operation of each part, inasmuch as the whole comprehends all its parts. After very'properly rejecting this idea, the judge appears to have considered the department of state, and the patentee* as haying proceeded upon it in making out this patent. He supposed the intention to be, to convey the excl ive right in the parts as well as in the whole,.by a grant-of the whble; but as the means used are in law incompetent to produce the effect, he construed the grant according to his opinion of its legal operation.

There i» great reason in this view of. the ease,, and-this court has not discarded it without hesitation;. Rut as to the-grant, with the various documents which-forara part of it, would be contradictory to itself; as these-apparent contradictions are all reconciled by considering the yvord “improvement”, to be in the plural instead of the singular number; as it is apparent that "this construction gives-to the grant its full effect"^ and that the opposite construction would essentially defeat itr.this court has, after much consideration and dóu'btv determined to adopt it, as the sound exposition of the instrument.

The second error alleged in the charge, is in directing -the jury to find for the defendant, if they should he of opinion that the hopperboy was in use prior to the improvement alleged to- be. made thereon -by Oliver Evans.

This part of the. charge seems to be founded o» the opinion, that if the patent is to be considered as a grant of the exclusive use \of distinct improvements-it ís; a grant sor the hopperboy itself, and not for an' improvement on the hopperboy.

decide th« fact., that an in dividual is an Mentor,so as to cSflnquirydnt0 the original it> of the authorship or inthS os'll mayt ^"lecidcd’the

•Thecounsel for the plaintiff contends, that this partosfthe charge is erroneous, because, by the “act for the relief of Oliver Evans,” Congress has itself decided that he is the inventor of the machipes for which he' solicited' a patent', and has' left that point open to judicial inquiry.

This court is not of that opinion. Without inquiring whether Congress, in the exercise of its ° . . . r “'to'secure for limited times, to authors and' inventors, the exclusive right to their .respective writings and discoveries,” ibay decide the fact that an individual is an author or'inventor, the court can never presume Con- . , r gress to have decided that question in a general act, the words of which do not render such construction unThe words of this act d;o not require this They do not grant to Oliver Evans exclusive right to use certain specified machines;' but the exclusive' right to useyhis invention, discovery, and improvements ; leaving the question of invention and improvement open to investigation, under the general patent law. avoidable construction'.

The plaintiff has also contended, that it is not necessary for the patentee. to show himself to Be the first inventor or discoverer. That the law is satisfied by his having invented a machine, although it may have been previously discovered' by some other per’ son.

Without a critical inquiry into the accuracy with which, the terra invention or discovery niay be applied to any. other than the first inventor, the court considers.this question as completely decided by the 6th section of the general .patent act. That- declares} that if the thing was not originally discovered by lie patentee, but had been in usé, or had heeii described in some public work, anterior to the sup-discovery of the patentee, judgment shall be “rendered for the defendant, and. the patent declared , * void.

cured scribed in public work anterior to the covery!the pa whether this previousa .Son ordnóti'P

0.-E; i* emit patent^to the 2fCthe!wvc'ral praehinea. ’■ which^he has invented, and óf hia improve menta op ma Sily’diKover

Admitting the words “ originally discovered,” to explained or limited by the subsequent words, still thing had been in use, or had been described in 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; and the charge of the judge, which must be taken as applicable to the testimony, goes no farther than the law.

The .real inquiry is, does the patent of- Oliver Evans comprehend more than he has discovered ? If it is for the- whole, hopperboy, the . jury has found that this machine was ip previous use. If it embraces , . , v ,. . , 0p]y his improvement, then the verdict must beset ' aside.

: The difficulties which embarrass this inquiry are not. less than those which were involved in the first point. Ambiguities are still to be cxplhined, and contradictions to be reconciled. .

.. H'he patent itself, construed without reference, to the schedule and other doCumeftts to which it refers, and which are . incorporated in it,. would be a grant ..^¡f a. single improvement 5 but construed with those documents, it has been determined to.ba a grant oí the several improvements which he has made in the maehiiies enumerated'ip. his .specification.’ But the grant i,s confined to improvements. There is no ex -pression in it -hich exten.ds to the whole of any one of the machines which are. enumerated in his specification or petition. The difficulty grows out of-the complexity and ambiguity of the specification and petition. His schedule states his first principle.to be the operation' of his machinery on the meal from its being ground'until it is bolted. He adds “this principle .1 apply by various machines, which I have, invented, constructed, and adapted to the purposes hereafter specified,”

His second, principle is the application of the power that moves the mill to his machinery.

The application of these principles, he says, to manufacturing flour, is what’he claims as his invention or improvement in the art.

He asserts himself to be the inventor*of the machines and claims the application of these principles, to the improvement of the process of manufacturing flour, and other purposes, as his invention and improvement in the art.

The schedule.next proceeds to describe the different machines as improved, so as to include in the description the whole, machine, without distinguishing his improvement from the machine^ as - it existed previous thereto; and in his fourth number he says, “I claim,the exclusive right to the principles, and to all the-machines above specified, and for all the usesand purposes specified, as not having been heretofore known ox used before ! discovered them»*’

If the opinion oft he court were to bé formed on the schedule alone, it would be difficult to deny that the ap" ■plication of Oliver Eyáns extended to all the machines it describes. But the-schedule is to be considered in' connection with the other documents incorporated in the patent.

The affirmation which is annexed to it -avers, that he is the inventor, not of the machines, but of the improvements herein above specified.

In his petition he states himself to have [discovered certain useful improvements, applicable to the art of manufacturing flour, and p.iays a patent for same ; that is, for his improvements, agreeably to the act of congress, entitled, “an act for the relief of Oliver Evans.” After stating the principles as in Ms schedule, he adds, “fhe machinery consists of an improved elevator, an improved conveyor, an improved hopperhoy, an improved drill, and an improved kiln-dryer.”

Although, in his specification, he claims a right to •the-whole machine, in hispetition he.only asks a, patent for-the improvements in the machine. The distinction between a machine,, and an improvement orr a machine, or an improved machine, is too clear for them to be confounded with each other.

The act of congress, agreeably to which Evans pe- . titions for a patent, authorizes the secretary- of state to issue one, for his improvements in the art of manufacturing flour, “and in the several machines which he has invented,discovered, improved,¿.nd applied to tha t purppse.”

l.ti conformity with, this act, this schedule, and this petition, the secretary of state issues his patent, which, in its terms, embraces only improvements.. Taking the. whole together, the court is of opinion, that the patent is to be constructed as a grant of the general result of the whole machinery, and of the improvement in each machine. Great douht existed whether the ■foords Qf the grant, which are expressed to be for an improvement or improvements only, should be understood as purporting to be a patent only for improvements; or should be so far controuled by the specification and petition,.as to be considered as a grant for the machine as improved, of in the words of.the schedule andpetition, for “an improved elevator, an improved conveyor, an improved hopperboy, an improved drill, and an improved kiln dryer.” The majority of the court came at length to the opinion, that there is no substantial difference, ,as they • are used in this grant, whether the words grant a patent for an improvement on a machine, or a patept for an improved machine-.; since the machine itself, without the improvement, would not be an improved -.machine. Although I.did not concur in this opinion, I can perceive no inconvenience from the construction.

It is, then, the opinion.of this court, that Oliver Evans may cla.im, under -his patent, the exclusive use of his inventions and improvements in the art of manufacturing flour and meal, a-nd in the several machines which he has invented, and in his improvements on machines previously discovered.

Where claim of O. E. is for an provement on must show the file ^imnner^'

relie i? engrafted on tent law, rigiiuo »ue in ©oort, zenofthe same state

In all cases where his claim is for-an improvement on a machine, it will be encumbent on him to'show the extent of his improvement, so that a person 'understanding thfe subject may comprehend distinctlydn whatc0nsists- ' .

Some doubts have'been enterfained respecting the: ... ; 1 ° jurisdiction of the'rcourts of the United States, as both the plaintiff and defendant are citizens.of the same The 5th section of the act to, promote the pro§>ress of useful arts, which givesrto every patentee a right to sue in a circuit court of the United StateSjdn hi® rights be violated, is repealed hy the 3d section pf the act ot 1800, ch. 179. fxxv.) 'which gives the-'ac-.in the circuit courj: of the United States, where, a patent is granted “pursuant” to that act, or to the tor the. promotion of useful arts. This patent, it been said, is granted, not in pürsuance of.either., of those acts, nit in pursuance of the act “for the relief of Evans,” But this court is of opinion, that the' act for the relief, of Oliver Evans is. engrafted on the general act for the promotion of useful arts, and . that the patent Í3 iss.ued in pursuance of both. The jurisdiction of the court is, therefore, sustained.

As,th,e charge delivered in the circuit court to the ju" \ ry differs in some respecta from this opinion, the. judgment rendered in .the court is reversed and annulled^ and the cause remanded to the circuit court, with dir ec-.tions to award a .venire facias de rwvo, and to proceed therein according to law'.

Judgment reversed;

Judgment. This cause came on to he heard on the transcript of the record.^f the circuit court for the .district of Pennsylvania, anti was urged by counsel. On consideration whereof, this court is' of opinion, that there is error in the proceedings of the said circuit court in this, that the said court rejected testimony .which ought to have been admitted ; and also in this, that in the charge delivered to the jury,- the' opinion.is expressed that the patent, on which this, suit-was instituted, conveyed to Oliver Evans only an exclusive right to his improvement iff manufacturing flour 'and meal, .produced by the general combination of alb his machinery:, and not to his improvement in the several machines applied to that purpose ; and also, that thésaid Oliver Evans was not entitled to recover, if the hopperbov,’in his declararían" mentioned, had been in use previous to his- alleged discovery, Therefore, it is considered by this court', that the judgment of the circuit court be reversed and annulled, and that the cause be remanded to the said circuit court, with' directions to award a venire.facias de.novo. 
      
      
         See Appendix, Note II.
     