Page:Federal Reporter, 1st Series, Volume 10.djvu/299

 ATWOOD V. THE POKTIiA.]SD CO. 287 �actually made and exhibited he is to have a patent, though he may have said that an alternative form was equally good. See Battin v. Taggert, 17 Kow. 74; Goodyear y. Rubber Co. 2 Cliff. 351, 9. Wall. 788; Bobertson v. Secombe Manuf'g Co. 10 Blatehf. 481; Putnam v. Yerrington, 9 0. G. 689 ; Stevens v. Pritchard, 10 0. G; 505 ; Gorn- planter Patent, 23 Wall. 181; Herring v. Nelson, 14 Blatehf. 293. Atwood had shown the aroh and described its uses, and may after- wards claim it when he is informed of its importance. �It appears that the office issued three new patents upon the sur- render of the plaintifif's original patent. Two of them were of a later date than that now in issue, and are not in evidence. The de- fendant objeots that this was vitra vires; that the commissioner could only reissue oneor more patents immediately upon the surrender. To this the plaintiff's answer is satisfactory, that this- reissue, which was the first, cannot be affected by subsequent void acts of the com- missioner, supposing them to have been void, which he does not ad- mit, but must stand or fall on its own merits. It is a little like the old case of Insurance. A policy was to be void if the assured obtained f ur- ther insurance without permission; he did this, but the policy he ob- tained was to be void if there were prior insurance. The latter policy being avoided by the earlier one, that earlier one stood valid. Keported cases inform us that the patent-office often reissues patents in the mode now objected to; and I do not now decide that it bas exceeded its authority in doing so. �A very difficult question of fact is raised by the record. . Positive testimony is given that a wheel like Atwood's was made by Mr. Baldwin, a well-known worker in iron, at Philadelphia, about 30 years before the testimony was given. The foreman and a pattern maker of Baldwin's shop are asked whether they made a wheel which is described in the question in the words of the plaintiff's claim, and they say they did. This evidence is not and cannot be directly met, but the plaintiff's evidence tends to throw a good deal of doubt upon it indirectly. The turning point in my mind is this : Several suits were brought by Atwood against makers of the Wash- burn wheel in 1858. Mr. Waterman, a witness in this case, was employed for the defence in one or more of those cases, and then discovered the old Baldwin patterns and cast wheels from them. He says that he eonsidered them a complete answer to the patent, but that Atwood withdrew his actions, as the witness was informed, and 80 the matter pasaed out of his mind for many years until this case ��� �