Page:Federal Reporter, 1st Series, Volume 7.djvu/494

 e8S rBDXB&L REPOBTBB. �it iniisi be oonsidered with reference to tHe Ter; oase before the court. . Piersmv- Magie Screw Co. 3 Story, 402, 408, �The right to tJSe the thing patented is secured against an exteitsion of the patent to assignees and grantees by section 18;of the act of 1836, (5 St. at Large, 117.) This language is qnite as broad as that of the aot of 1839, and still, since the decision in McC^r<if v. Kingsland, it bas been held to eover particulaj: constructions, and not the right to practioe the invention. The lango^ge of the aot of 1839 does not seem capable of being extended beyond the use of particular things bought or made in cases of patents for substantive things, and it is not probable that McClwrg v. Kingsland would be followed beyond cases of its class upon the same Btatute. Wilson v. Bosseau, A How. 646. But in the act of 1870, section 37, (16 St. at Large, 203,— Eev. St. § 4899,) the right of a pereon consfcructing a patentable article, or pur- chasing it before the application for a patent, is limited to the right to use, or vend for use, the specifie thing. This may be considered as a legislative construction of the former acts; but, if notj.congress bas full power over the subject of pat- ents, unless it be as to the right to take away property se- cured by existing patents; and this act of 1870 may properly govem the right of reoovery in actions brought since its pas- sage. This -was expressly held, as to the act of 1836, in Me- Clurg V. Kingsland. So, in any view "which can be taken of this case, it does not seem that the defendant bas any right to this invention any further than to the extent of machines constructed prior to the application for the patent. �It is urged that an infringement by the fire department of the city is not an infringement by the defendant, beeause that defendant was, under the law, a corporation of itself, over whiob the officers of the city had no control. It is understood, however, as was said in Allen v. The Mayor, etc., that the fire department was a mere agency of the city, hav- ing no funds of its own, and malsing no profits for itself apart from those of the city., If there are any gains and profits in the hands of any party to be aecounted for, under these cir- cumstances, on account of an infringement, they must be in ��� �