Page:Federal Reporter, 1st Series, Volume 7.djvu/879

 UNITED STATB8 «TAMPINO 00. V. KINS. 867 �but the question as to whether it would be useful or practieal to rnake a metallic cuspidor of three pieces of metal, in the way suggested by Heath, and with a loaded bottom, still remained for the exercise of invention. The defendants sell cuspidors made by Jewett & Sons, of Briffalo, who are licen- sees under the Topham patent. But Jewett & Sons do not make the structure of Topham. They make substantally that of Heath. The Topham structure is lacking in the es- sential features of the Heath structure. Topham's spittoon is not a cuspidor, and is not metallic, and is not made of three parts joined together. In Heath's cuspidor the rounded form and the load in the base co-operate to make the structure self-righting. In Topham's spittoon there is no such co-operation between the form and the weighted base, as the sides are nearly straight and the bottom is not rounded. The porcelain euspidor, easily upset, easily broken, sure to to remain upset when upset, had been in existence for years. Its disadvantages, the desirability of remedying its faulty features, had been obvious for years. But the remedy was not obvious. Topham's structure furnished no remedy, be- cause, although it had a loaded bottom, it was stUl a spit- toon and not a cuspidor, and had not the points of advan- tage which the porcelain cuspidor had in unison with its disadvantages. Nor did any remedy come till Heath's cus- pidor came. Topham, on the twenty-ninth of July, 1873, obtained a re-issue of. his patent, with broader claims than those of his original patent, not cononing his invention, as in the original, to vessels made of paper, but extending it to all spittoons or similar vessels weighted at the bottom. What- ever may be the force of the re-issued patent in suits brought on it, it can have no effect as against the Heath patent in this suit, because it is subsequent to that patent. A re-issued patent has the same effect and operation in law as though it had been originally aled in the corrected form, only on the trial of actions brought on it for causes thereaf ter arising, and has no such effect in any other case, or for any other purpose. Act of July 8, 1870, § 53; 16 St. at Large, 205; Eev. St. § 4916. The Heath cuspidor was first introduced into the market ��� �