Page:Federal Reporter, 1st Series, Volume 9.djvu/519

 504 FEDERAL REPORTER. �cited. Still, if consent and allowance of the invention are net nee- essary to defeat a patent, the other sales and use were sufficient to accomplish that resuit. It bas frequently been said, but in cases where the point was not directly raised, that such consent and allow- ance waa not necessary. Egbert v. Lipjpmann, 16 Blatchf. 295 ; Kellc' her V. Darling, le 0. Gr. 673. And there are cases the other way. Andrews Y.Carman, 13 Blatchf. 307; Draper v. Wattles, 16 0. G. 639. In view of these differences of opinion or statement, it may be well to recur tO; the statutes. In section 7 of the act of 1836 it is pro- vided that the commissioner shall njake, or cause to be made, an examination of the alleged invention or discovery, and if it shall not appear, among other things, that it had been in publie use or on sale with the applicant's consent or allowance prior to the application, and if the commissioners shall deem it to be sufficiently useful and impor- tant, it shall be his duty to issue a patent for it. In section 15 of the same act it is provided that a defendant in a suit for infringement may set up, among other things, in defence, that the invention had been in public use or on sale, with the consent and allowance of the patentee, before his application for a patent. These are the only provisions for preventing the issue of a patent, or a recovery for the infringement of one, on account of the invention being in public use or on sale, except some provisions as to the effect of foreign patents, not material to this question, which were in force when this patent was granted. The act of 1839 does not provide for preventing the issue of a patent on this account, and does not enlarge in any direc- tion, but is restrictive of this defence. It saves to manufacturers and purchasers before the application for a patent the right to spe- cifie machines, manufactures, or compositions of matter, and pro- vides that no patent shall be held invalid by reason of the sales, purchases, or use, except on proof of abandonment, or that the pur- chase, sale, or use bas been for more than two years prior to the application. No purchase, sale, or use, after the invention, would prevent or invalidate a patent but for these provisions of the act of 1836, and it is against those provisions that the effect of the mak- ing, use, and sales of these specifie articles is saved by the act of 1839. The use saved against is the public use mentioned in the act of 1836, as seems to have always been understood, although it is not mentioned as public in the act of 1839 ; and the being in use and on sale saved against are the public use and sale with the consent or allowance of the inventor mentioned in the act of 1836. Draper v. Wattles, 16 0. G. 639. ��� �