Page:Federal Reporter, 1st Series, Volume 2.djvu/343

 336 FEDERAL REPORTER. �instrument commonly known as Morse's relay or receiving magnet." �To this petition the plaintiffs demur, and show for cause of demurrer that the petitioners do not set forth any such right, title or interest in the subject-matter of the decree in this suit, either as parties or otherwise, or allege any such tacts as to entitle them to be heard in the settlement or entering of such decree; and that, even if the petitioners have any such interest in the subject-matter of such decree, they have not set forth and proved any state of facts in respect to newly discovered evidence which would entitle them to be heard on the settlement of such decree. �In addition to the matters before referred to as contained in the petition, it is urged, for the petitioners, that the special act of congress did not contemplate a patent for any tele- graphie device ; that Page's invention was not a telegraphie instrument; that if an automatic circuit breaker is not an essential element in the twelfth claim of the patent, Page was not the first inventor of what is covered by that claim; and that it does not appear that the commissioner of patents adjudged that Page was the first inventor, as was required by the special act. �The petitioners do not allege that there was any fraud or collusion in the conduet of the suit, as it was presented to the court. They substantially ask the court, in view of the mat- ters they lay before it, to give to the plaintiffs' patent, in this suit, a construction which does not arise ont of any matters in issue in this suit, or which can properly be in issue in this suit. An investigation, on plenary proofs, into the matters now brought forward by the petitioners, would be an investi- gation into matters not in issue in this suit. The matters of fact and of law now sought to be raised, as not having been before raised, will be fully available to the petitioners if they shall be sued for infringing the patent, whether preliminary injunctions shall be applied for against them or not. �It is well settled that even after the validity of a patent has been established in a suit, and notwithstanding the pre- somption thereby raised that the patent is valid, it may ����