Page:Federal Reporter, 1st Series, Volume 1.djvu/322

 314 PBDBBAt REPORTES �grant my patent, provided no other objection should be found." �The office replied thus, on February 23, 1854: "Yours of the seventeenth instant, relating to the matter of your machine for administrating medical electricity, has been received, to- gether with an amended claim. The publication made by you of the subject of this claim in SiUiman's Journal, in 1837, anticipates the publication made by Bird, as referred to in the officiai communication of the fifteenth instant. The only remaining difficulty in the way of the grant of a patent to you, therefore, so far as the office is informed, is the fact that the machine has been for a long course of years in public use. By the seventh section of the act of 1836 it is made the duty of the commissioner of patents to take cognizance of the case where the invention has been in public use or on sale with the applicant's consent and allowance, this being placed on the same footing as the other conditions for ref using a patent. The only modification of this part of the section is that by which a period of two years is allowed for the previous sale or use, as provided in the seventh section of the act of 1839. In the present case, that period has been exceeded many years. The only remaining question, therefore, is whether the sale and use bave been with the applicant's consent and allowance. In the affidavit made by you on the twenty- seventh of January, 1854, it is testified that you have never consented to such sale or use, nor abandoned said invention to the publie. It is not, however, necessary that the consent should be actually expressed. It may be inferred from the acts of the applieant; and it will be inferred when nothing appears to show that he has properly wamed the public, or the parties selling and using, against the sale and use, or that he has taken timely measures to secure a patent for his invention. AU that has been adduced to show this in the present case is the allegation that the applieant, from the time he found the invention going into general use, was labor- ing under a legal disability to procure.a patent therefor under the law, in consequence of his officiai connection with the patent olEce, and that he applied to congress for a special patent foi ��� �