Page:Federal Reporter, 1st Series, Volume 6.djvu/731

 8M1TH t?; MERBIAM. I1& �these cases, unless it be Batten v. Taggert, 17 Ho:w. T4> — ■which is perhaps inconsistent ■with Leggett v. Avery, 101:11. S. 256, — bas been overruled ; and a great many similar cases could be cited. ■ It bas been brougbt out a little more de- cidedly by the later cases that the invention must be the same; but it bas never been held in the supreme court, or any circuit court, so far as I can discover, that the commis- sioner's decision ia net final as to the propriety of a re-issue, as distinguished from its validity upon what may be cf^lled itsmerits; or that the claims maynofc.be varied to ipxpress the real invention, The claim is part of the specifica,tion, and if defeotive may be amended. Bmsell v. Dodge, 93 TI. S. 460, in which the decision is given by Mr. Justice Field, and vrhich is cited by him in the Powder Co.'a case, merely decides that a re-issue which claims a different invention is void. A similar decision bas- been made at this term of the supreme court, in giving whici. Mr. Justice Strong states the law in the old way, that the commissioner's decision is final as to the mistake, but-not as to the identity.of invention. Bail V. Langles, 18 0. G. 1405. The only cases which ho cites are Seymou/r v. Oshorne and Russell v. DocZ^^e, which he evidently considera; to 'be consistent with each othet. ; �I conclude, therefore, that the re-issue was granted to cor- rect some inadvertence, accident or mistake. Whether it is valid is quite another matter.i I have read with diligence the very voluminous record, and amsatisfied that the presser- foot described and shown in the original patent ftnd model has the f unctions claimed in ihe ie-issue. , It was a tool which was fitted for a particular puripose, and if the claim Jiad, beeiii well adapted to the invention it would not have been-; iiffles- sary to re-issue the patent, for no one could have justified a piracy of the presser-^foot by dfeitting to use the folder wiiicji was attached to it. The tool, was not a combination, ■ but aq aggregation of two entirely distinct tools, one to f old a.ud one to press; that is, bold the work' to b© sewed. '.The doubt whetber the presser-foot would.work byitself was dissipated 'ly the evidence, and by a successiul experiment in ppen coijrtc. ��� �