Page:Federal Reporter, 1st Series, Volume 5.djvu/602

 590 FEOEBAL BBFOBTEB. �machines were construeted apcording to and embodied allthe inventions despribçd in the letters patent aforesaid, and were designed and adapted in their ordinary aijd natural operation, when used in the manufacture of shoes, to produce the shoes patented to Blake by the patent No. 29,562, and for some tJme past bas, without the license and against the consent of the complainant, used the said machine, and manufactured and sold large quantities of the improved shoes made accord- ing to the process patented to Blake as aforesaid, �The defendant seeks to justify such manufacture and sale upon the ground that, the extended term of the machine pat- tent having expired, he, in common with ail the world, haa the right to use machines embodying the said mechanism; and, if by such lawful use of common property he infringes the process and product patents of the complainant, these patents are necessarily void. �We bave thus presented for consideration an interesting and novel question. AU embarassment would bave been avoided if the officers.of the patent-office had required the inventor, when he applied for the process and product pat- ent, to surrender his original patent for the mechanism, and ûad then made three several re-issues — for the machine, the process, and the product — ail bearing the same date and ex- piring at the same time. Such course was pursued in the case of The Rubber Co. v. Goodyear, 9 Wall. 788, where the inventor first patented the process, and afterwards surren- dered the letters patent and took his re-issue in two several patents, one for the product and the other for the process of Ihe product. But such a step was not required in the pres- ent case, and it is a fair inference, frcji what was decided in Beniiett v. Fowler, 8 Wall. 445, that the courts bave no abso- lute control over the bead of the patent-office in the exercise of his discretion whetber a given invention or improvement sball he embraced in one, two, or more letters patent. �Taking the case, then, as we find it, the naked question pre- sented is : If an inventor embody in a machine a new mechan- ism to accomplish a desired and express purpose, does the pat- ent, law autliorize him to procure (1) a patent for the machine. ����