Page:Federal Reporter, 1st Series, Volume 3.djvu/575

 568 FEDERAL REPORTER. �tions, and insisted upon in argument, are : ■whetlier the orator is entitled to recover for anything done or reoeived before the actual issue of the patent; whether, upon the facts stated, the orator is entitled to these profits at ail ; whether, if enti- tled to profits, he should not be allowed to recover as for profits on those infringing organs disposed of without profit on that aecount, at the same rate as on those for which profits were reoeived; whether, on the evidence, some damages, in addition to profits, should not have been found ; whether the orator is entitled to interest on the profits allowed, and, if so, from what time ; and whether he is entitled to any costs upon the accounting or in the suit. �Although this patent was granted under the act of March 2, 1861, which provided, in section 16, that ail patents should remain in force for the term of 17 years from the date of issue, it was subjeet to the provisions of section 8 of the act of July 4, 1836, (5 St. at Large, 117,) which were not super- seded by the act of 1861. DeFlorez y. Raynolds, 17 0. G. 503. �By the provisions of that section the applicant for a patent could have it take date from the time of filing the specifica- tion and drawings, but not more than six months prier to the" actual issue. This patent was not antedated more than six months, and came within those provisions. It is not like a re-issued patent, expressly restricted in operation to causes of action thereafter arising, (Act of 1836, § 13 ; Eev. St. § 4916; MoJJltY. Garr, 1 Black, 273;) but it has the fuU au- thority of the act of congress, giving it effect from the prier date; and congress has as full power to protect the rights of an inventer before the granting of a patent as after. �The wave-tuning was common and free to ail alike, the same as the wood of the reed boards, or the metal of the reeds ; neither the defendants nor any one else had any monopoly of it. When the defendants used it in appropri- ating the orator's invention, the rights and liabilities arising were precisely like those arising from the use of the wood and metals ; that is, they became entitled to be allowed its cost in accounting for the profits. The pateuted invention was the orator's property; he is entitled to the profits of the use ����