Page:Federal Reporter, 1st Series, Volume 1.djvu/866

 858 FEDUBAL BBPOBTEB. �cludes the defendant, as he bas not thought proper to appeal from the same, after submitting himself to the jurisdiction. This was not seriously controverted by his counsel at the hearing; but the application was mainly resisted upon the ground that the defendant had discovered that the said im- provements were not new either with him or with Bigelow, and that the Bigelow patent, on which this action was founded, as well as his own patent, was void for want of novelty. �A new question is thus presented, and one by no means unimportant : Will the court allow a patentee, who has lost his rights to the protection of the law in consequence of proof that his alleged invention was anticipated by others, to proteet himself in the continued use of the patented improve- ments by showing that neither he nor the other party was the first inventer? In other words, whether the issuing of a patent estops the patentee from proving that the invention claimed therein is not novel. I think the answer depends entirely upon the fact whether the party has acted in good faith in the matter. �Every one making application for letters patent is obliged to file therewith an oath that he believes himself to be the original and first inventer or discoverer of the art, machine, manufacture, composition, or improvement, for which he solicits the patent. Section 4892 of Eev. St. This is often done honestly, and yet untruthfully, owing to the ignorance on the part of the applicant of the state of the art. I can perceive no satisfactory reason why any one should not be permitted, after he has discovered his mistake, to set up the defence of want of novelty against another party, who claims an exclusive right to patented improvements which, in truth, belong to the public. But if one with a knowledge of the state of the arts surreptitiously attempts to appropriate to himself what he knows does not belong to him, he should be estopped, when his fraud is found out, from interposing such a defence, espeeially against a person whom the patent office has decided, as against his claim, to be the original and first inventer. �My difficulty in this case arisea from the grave suspicion. ��� �