Page:Federal Reporter, 1st Series, Volume 9.djvu/468

 EDGARTON V. FUBST ife BBADLEY MANDf'G CO. 453 �" The back end of the shafts or thills, C C, extend a trifle back of the axle, B, and to the back end of the thills, beyond the back part of the axle, a rake-head, E, is connected by joints or hinges, C, the hijiges being at the under side of the lake-head, as shown clearly in figure 1, so that the head may work thereon as a f ulcrum." . �Eigure 1, in the drawing of the original patent and in the reissued patent, shows the rake-head made of a square stick of timber, with an eye-bolt passing through from corner to corner, which, with an eye- bolt or staple passing through the end of the thill, makes the joint or hinge by which the rake-head is attached to the earriage. By this arrangement the teeth hang nearly in a line with the periphery of the wheel, the points coming to the ground just back of the tread of the wheel. �Naturally enough the ouryed rake teeth will hang or move somewhat in the line of the periphery of the wheel, and they will hang just back of the tread of the wheel. �If I am right in my construction of this disclaimer, there can be no doubt that the second claim of the reissue is for the very thing which Whiteomb disclaimed and said was in common use in his original specification, He brings this case clearly within the principle laid down by the supreme court of the United States in Leggett v. Avery, lOlU. S. 259: �"We think it was a manifest error of the commissioner in the reissue to allow the patentee a claim for an invention different from that which was described in the sun-endered letters, and which he had thus expressly dis- claimed. The pretence that an error had arisen by inadvertence, accident, or mistake, within the meaning of the patent law, was too bald for considera- tion. The very question' of the validity of these claims had just been eoiisid- ered and decided with the acquiescence and the express disclaimer of the pat- entee. If in any case, where an applicant for letters patent, in order to obtain the issue thereof, disclaims a particular invention or acquiesces in the rejection of a claim thereto, a reissue containiug such claim is valid, (which we greatly doubt,) it certainly cannot be sustained in this case." �Then, again, they say, on the same page : �"As before remarked, we consider it extremely doubtful whether reissued letters can be sustained in any case where they contain claims that have once been formally disclaimed by the patentee, or rejected with his acquiescence, and he lias consented to such rejection in order to obtain his letters patent. Under such circumstances, the rejection of the claim can in no just sense be regarded as a matter of inadvertence or mistake. Even though it was such, the applicant should seem to be estopped from setting it up as an application Eor a reissue." ��� �