Page:Federal Reporter, 1st Series, Volume 10.djvu/925

 LINDSAY V, STBIN. 913 �satisfaction of the eommissioner that the delay beyond two years from January 2, 1875, was unavoidable. The new application was made complete April 9, 1878. �The defendant contends that the effect of the act of 1870 is that when an application is, under section 32, to be regarded as aban- doned, no new application for a patent for the same thing can be subsequently made. There is nothing to prevent a subsequent appli- cation. When made it can derive no aid, as to time, from the prior abandoned application, and the applicant must stand, as to defences in suits on the patent, as if the new application were the first appli- cation. Therefore, as applied to the present case, the words "two years prior to his application," in section 4886 of the Revised Stat- utes, and the words "two years before his application for a patent, " in section 4920, mnst mean two years before April 9, 1878, so that No. 202,735 will be invalid if the inventions covered by it were in public use or on sale in the oountry for more than two years before April 9, 1878. The decisions of the courts under the statutory pro- visions before that in section 32 of the act of 1870, in regard to the continuity of an application once made, can have no application to a cause like the present, in view of the express provision of section 32. An application which is to be "regarded as abandoned" must be re- garded as abandoned by the eommissioner and the courts, and, if it is to be regarded as abandoned, it cannot be regarded as subsisting for the purposes of sections 4886 and 4920. The cases oi. Singer y. Braunsdorf, 7Blatchf. C. C. 521; Blandyv. Griffith, 3 Fish. Pat. Cas. 609 ; Howes v. McNeal, 15 Blatchf. C. C. 103 ; Qodfrey v. Eames, 1 Wall. 317; and Smith y. Goodyear Dental Vulcanite Co. 93 U. S. 486, arose under statutory provisions enaeted before the act of 1870, and can have no application to the present case. �It is argued for the plaintiff that as No. 202,735 was granted on the second application for the same invention that was claimed in the first application, it must be presumed that the eommissioner had before him evidence showing that the delay in prosecuting the first application was unavoidable. This would be so if in fact the eom- missioner had allowed the first application to be prosecuted further. But he did not. It was the application of April 9, 1878, that was -ejected April 11, 1878, and granted April 13, 1878, and No. 202,735 was issued on that application, as appears on its face and by the records of the patent-of&ce. V.10,no.9— 58 ��� �