Page:Federal Reporter, 1st Series, Volume 1.djvu/335

 PAGE V. HOLMES BimaLAB ALABM TELEOEAPH 00, 327 �except to the extent covered by the proriso in the special aet. Neither sueh consent nor such witharawal vested in the gen- erai public, including the defendant in this suit, any right which amounted to a right of property, in the sense of the fifth amendment to the constitution of the United States, unless there was, in a particular case, a reduction of the inventions to use and praotice, by their embodiment in some apparatus, prior to the granting of the patent. Then the apparatus had become property. But the inchoate right to make an apara- tus, embodying the inventions, such right being unexercised before the granting of the patent, was not property, in such a sense as to make it possible to hold that to forbid the use, after the granting of the patent, of an apparatus made after the granting of the patent, is to deprive its owner of property which was in existence when the patent was granted. The proviso in the special act fuUy protects and preserves ail that was property when the patent was granted. The defendant does not present any case within the proviso, nor any case except that of a right claimed, which any other one of the general public might equally have claimed at the time the patent was granted. �The application to be made under the special act was sub- ject to the same rules as other applications, and the same right to a re-issue existed as in the case of other patents. �AU the considerations urged against the validity of the patent, and the right of the plaintiffs to recover in this suit, have been examined, although some of them may not have been particularly alluded to in the foregoing decision. The resuit is that there must be the usual decree for the plain- tiffs. ��� �