gested or indicated in the original specification, drawings, or patent-office model, and unless the original specification indicated that those things were embraced in the invention intended to have been secured by the original patent.

The "recent enactment” referred to in Seymour v. Osborne is found in section 53 of the act of July 8, 1870, in these words: "But no new matter shall be introduced into the specification, nor, in case of a machine patent, shall the model or drawings be amended, except each by the other; but, when there is neither model nor drawing, amendments may be made upon proof satisfactory to the commissioner that such new matter or amendment was a part of the original invention, and was omitted from the specification by inadvertence, accident, or mistake, as aforesaid." This provision is now found, in the same words, in section 4916, Rev. St. The last clause of it has no application to the present case, and therefore its proper construction need not be considered.

The case of Gill v. Wells, 22 Wall. 1, (at October term, 1874,) arose under the act of 1836. In that case, this court, speaking by Mr. Justice CLIFFORD, said, (page 19:) "Invalid and inoperative patents may be surrendered and reissued for the same invention, but congress never intended that a patent which was valid and operative should be reissued merely to afford the patentee an opportunity to expand the exclusive privileges which it secures, to enable him to suppress subsequent improvements which do not conflict with the invention described in the surrendered patent. Evidence of a decisive character to negative the theory that such a practice finds any support in the act of congress, besides what existed before, is found in the new patent act [the act of July 8, 1870, § 53,] which expressly provides that no new matter shall be introduced into the specification; and, in case of a machine patent, that neither the model nor the drawings shall be amended except each by the other."

In the case of Powder Co. v. Powder-Works, 98 U. S. 126, (at October term, 1878,) this court, speaking by Mr. Justice BRADLEY, said, (page 137,) in reference to the reissued patents in that case: "These reissues, being granted in 1872, were subject to the law as it then stood, being the act of July 8, 1870, the fifty-third section of which (reproduced in section 4916, Rev. St.) relates to the matter in question. It seems to us impossible to read this section carefully without coming to the conclusion that a reissue can only be granted for the same invention which formed the subject of the original patent of which it is a reissue. The express words of the act are, a new patent for the same invention;' and these words are copied from the act of 1836, which in this respect was substantially the same as the act of 1870. The specification may be amended so as to make it more clear and distinct; the claim may be modified so to make it more conformable to the exact rights of the patentee; but the invention must be the same. So particular is the law on this subject that it is declared that no new matter shall be introduced into the specification.' This prohibition is general, relating to all patents; and by 'new matter' we suppose to be meant new substantive matter, such as would have the effect of changing the invention, or of introducing what might be the subject of another application for a patent. The danger to be provided against was the temptation to amend a patent so as to cover improvements which might have come into use, or might have been invented by others, after its issue. The legislature was willing to concede to the patentee the right to amend his specification so as fully to describe and claim the very invention attempted to be secured by his original patent, and which was not fully secured thereby, in consequence of inadvertence, accident, or mistake; but was not willing to give him the right to patch up his patent by the addition of other inventions, which, though they might be his, had not been applied for by him, or, if applied for, had been abandoned or waived. For such inven

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tions he is required to make a new application, subject to such rights as the public and other inventors may have acquired in the mean time. This, we think, is what the present statute means, and what, indeed, was the law before its enactment, under the previous act of 1836. If decisions can be found which present it in any different aspect, we cannot admit them to be correct expositions of the law. The counsel for the complainant refers us to, and places special reliance on, the last clause of section 53 of the act of 1870, where it is said: But where there is neither model nor drawing, amendments may be made upon proof satisfactory to the commissioner that such new matter or amendment was a part of the original invention, and was omitted from the specification by inadvertence, accident, or mistake.' But this clause relates only to the evidence which may be employed by the commissioner in ascertaining the defects of the specification. It does not authorize him to grant a reissue for a different invention, or to determine that one invention is the same as another and different one, or that two inventions essentially distinct constitute but one. In this case, it is not necessary for us to decide, and we express no opinion, as to the precise meaning and extent of the final clause of section 53, to which we have referred; as whether it relates to all patents, or only to patents for machines. But as it relates to the matter of evidence alone, it cannot enlarge the power of the commissioner in reference to the invention for which a reissue may be granted. That power is restricted, by the general terms of the section, to the same invention which was originally patented." If by "new matter," in section 4916, Rev. St., is meant such new substantive matter as might be the subject of another application for a patent, there was new substantive matter introduced into the specification of the reissue in the present case; for the description set forth in that specification as the foundation for the first eight claims in it, and those eight claims themselves, might have been the subject of another application for a patent, at the time the original patent was applied for and taken out, leaving that patent valid and operative in respect to the claims it covered.

In the present case, the infringing clock was made by the defendant Lane more than six months before the reissue in suit was applied for. As stated by the circuit court in its opinion in this case, the Lane clock did not contain a single patented feature of the Hotchkiss clock, and it was immediately patented, and put upon the market. This, therefore, is a case of the amendment of a patent so as to cover improvements not covered by the patent, and which came into use by others than the patentee and his licensee, free from the protection of the patent.

There is no evidence of any attempt to secure by the original patent the inventions covered by the first eight claims of the reissue, and those inventions must be regarded as having been abandoned or waived, o far as the reissue in question is concerned,-subject, however, to the right to have made a new application for a patent to cover them; in other words, those eight claims are not for the same invention which was originally patented.

In Mahn v. Harwood, 112 U. S. 354, 539, 5 Sup. Ct. Rep. 174, (at October term, 1884,) it was said by this court, speaking by Mr. Justice BRADLEY: "In this very matter of reissued patents, it has also been frequently decided that it is a good defense, in a suit on such a patent, to show that the commissioner exceeded his authority in granting it. Such a defense is established by showing that the reissued patent is for a different invention from that described in the original, inasmuch as the statute declares that it must be for the same invention."

The same view was taken in Coon v. Wilson, 113 U. S. 268, 277, 5 Sup. Ct. Rep. 537, (at October term, 1884,) a case substantially like the present one, where it was said: "Although this reissue was applied for a little over three months after the original patent was granted, the case is one where it is sought merely to enlarge the claim of the original patent, by repeating that claim and

adding others; where no mistake or inadvertence is shown, so far as the short or sectional bands are concerned; where the patentee waited until the defendants produced their continuous band collar, and then applied for such enlarged claims as to embrace the defendants' collar, which was not covered by the claim of the original patent; and where it is apparent, from a comparison of the two patents, that the reissue was made to enlarge the scope of the original. As the rule is expressed in the recent case of Mahn v. Harwood, 112 U. S. 354, 5 Sup. Ct. Rep. 174, a patent cannot be lawfully reissued for the mere purpose of enlarging the claim, unless there has been a clear mistake, inadvertently committed, in the wording of the claim, and the application for a reissue is made within a reasonably short period after the original patent was granted.' But a clear mistake, inadvertently committed, in the wording of the claim, is necessary, without reference to the length of time. In the present case, there was no mistake in the wording of the claim of the original patent. The description warranted no other claim. It did not warrant any claim covering bands not short or sectional. The description had to be changed in the reissue, to warrant the new claims in the reissue. The description in the reissue is not a more clear and satisfactory statement of what is described in the original patent, but is a description of a different thing, so ingeniously worded as to cover collars with continuous long bands, and which have no short or sectional bands." See, also, Ives v. Sargent, 119 U. S. 652, 662, 663, 7 Sup. Ct. Rep. 436.

Reference was made on the argument to language used by Mr. Justice BRADLEY in delivering the opinion of this court in the case of The Cornplanter Patent, 23 Wall. 181, 217, where he said: "It may be remarked, in passing, that in our view the several reissues are for things contained within the machines and apparatus described in the original patents." The reissues referred to were sustained by this court. There is nothing in the remark thus made to show that the court did not find the reissues to be for the same inventions as the original patents, consistently with the views contained in the other cases above referred to, or that the court did not follow those views in deciding that case.

Comment is made by the appellants upon the fact that the original specification states that the "mainspring occupies the whole back of the space occupied by the works, so as to give the greatest running power with the least possible expense of room, one of the leading objects of my invention being to render it possible to make a cheap, neat, and satisfactory time-piece of unusually small size;" and upon the further fact that the specification of the reissue states that the invention has for its object "to make a clock movement which shall be simple and durable in its construction, of smail initial cost in manufacture, and the several parts of which shall be relatively arranged in such manner that the movement may be inclosed in a small and compact case." It is urged that every one of the claims of the reissue responds to the object of making a cheap and small, but satisfactory, time-piece. But this statement in the original specification of the object of the invention, in such general terms, cannot have the effect of making the reissue one for the same invention as that of the original, when it otherwise would not be. Such a general statement contained no intimation that the invention consisted in the matters covered by the first eight claims of the reissue. The decree of the circuit court is affirmed.


(October 31, 1887.)


A survey embracing 1,682 acres, on an entry of lands in the Virginia military district made on a warrant for 500 acres, is, by reason of such excess, fraudulent and

void, and does not vest the owner of the warrant, or his assignee, with an equitable title to the lands surveyed, as against the United States, so as to entitle hini to call for a patent.


Whether the act of congress, February 18, 1871, ceding to the state of Ohio lands in the Virginia military district in that state "remaining unsurveyed," did or did not pass title to lands covered by a previous survey, invalid on account of the excess in the quantity of land embraced, the fourth section of the act of May 27, 1880, passed for the purpose of construing the act of February 18, 1871, ratified and confirmed the title to such lands sold by the Ohio Agricultural and Mechanical College, the grantee of the state of Ohio, to a purchaser for a valuable consideration. 3. SAME-DATE OF SURVEY-EVIDENCE.

For the purpose of showing the date that a survey, on which a party bases his claim to title to public lands, was filed in the general land-office, copies of official letters written by the commissioner to the party then claiming title under the warrant and survey, reciting the facts, which copies were sworn to by a witness who was a clerk in the general land-office, and acquainted with the facts, he having, as such clerk, written the originals for the commissioner, by whom they were signed, are competent.

In Error to the Supreme Court of the State of Ohio.

A. C. Thompson, Chas. King, Wm. B. King, and N. W. Evans, for plaintiff in error. W. A. Hutchins, for defendant in error.

MATTHEWS, J. The judgment sought to be reviewed on the present writ of error was rendered by the supreme court of the state of Ohio in a proceeding begun by Flagg, the defendant in error, to quiet his title and possession to a certain tract of land lying in Nile township, Scioto county, Ohio, within the Virginia military district, embraced within survey No. 15,882. The judgment of the supreme court of Ohio in the case is reported as Coan v. Flagg, 38 Ohio St. 156. On the eighteenth of February, 1871, Congress passed an act to cede to the state of Ohio the unsurveyed and unsold land in the Virginia military district in said state, (16 St. at Large, 416,) which reads as follows: "Be it enacted by the senate and house of representatives of the United States of America, in congress assembled, that the lands remaining unsurveyed and unsold in the Virginia military district in the state of Ohio be, and the same are hereby, ceded to the state of Ohio, upon the conditions following, to-wit: Any person who at the time of the passage of this act is a bona fide settler on any portion of said land may hold not exceeding one hundred and sixty acres, so by him occupied, by his pre-empting the same in such manner as the legislature of the state of Ohio may direct." The lands thus ceded were granted by the state of Ohio to the Ohio Agricultural and Mechanical College. The college, claiming the lands in controversy to be embraced within this cession, for a valuable consideration sold and conveyed the same to Flagg, who entered into possession prior to the commencement of this suit. Coan, the original defendant, claims title under (1) exchange military warrant No. 494, issued by the state of Virginia on the sixteenth day of June, 1840, to the children and heirs of Francis Gordon, a child and heir of John Gordon, the only heir of Thomas Gordon, who was a lieutenant of cavalry in the continental line of Virginia troops in the Revolutionary war, for 500 acres of land, to be laid off in one or more surveys; (2) an entry No. 15,882, purporting to cover 500 acres of land under the foregoing warrant No. 494, made on December 18, 1849, by the said heirs of Francis Gordon and one David F. Heaton, an assignee of part of said warrant; (3) a survey under said entry No. 15,882, purporting to contain 400 acres, 375 acres for the heirs of Francis Gordon, and 25 acres for said Heaton, made by said D. F. Heaton, a deputy-surveyor of the district, on April 10, 1851, giving the metes and bounds of the land surveyed, which was duly recorded on December 23, 1851, in the district land-office at Chillicothe; (4) and mesne conveyances from the heirs of said Francis Gordon and said Heaton to Coan.

It is an undisputed fact, appearing on the record, that this survey No.

15,882 embraces in fact 1,682 acres. The answer of Coan, the defendant below, contains the averment that "on the twenty-sixth of December, A. D. 1851, the said E. P. Kendrick, surveyor for said district, duly certified said survey, being numbered (the same as said entry) 15,882, to the general land-office at Washington, D. Č., for patent, and that said survey has ever since been on file in said office." It is stated, however, in a letter addressed by the acting commissioner of the general land-office to L. C. Heaton, the executor of David F. IIeaton, then claiming title, dated June 18, 1873, and admitted in evidence, that survey No. 15,882 was filed in that office for the purpose of obtaining a patent on the twenty-sixth of April, 1852. The same fact is recited in a letter from Willis Drummond, the commissioner of the general land-office, dated October 26, 1871, also admitted in evidence, addressed to David F. Heaton, then claiming title. No patent has ever been issued on this entry and survey, for the reason, among others, given in the correspondence between the officers of the land department and Heaton, "that the same contained a large excess of land over and above the amount stated therein, and actually due in virtue of said warrant exchange No. 494;" the amount of that excess being stated at 1,282 acres. This was communicated in a letter from the commissioner of the general land-office to L. C. Heaton, dated June 18, 1873, in which it was said that "this office will not, of course, recognize the validity of any such survey as the foregoing, and must refuse, if there were no other objections, to carry the same into grant; and unless you deny the facts as above stated, and wish to offer rebutting testimony, and be heard in reply, you will understand that the claim for patent in the case of said survey No. 15,882 is rejected. Should you, however, dispute the correctness of the said resurvey, etc., and will at once advise this office of the fact, every reasonable opportunity will be afforded you to be heard in the case, with such evidence as you may desire to present."

On July 11, 1873, the commissioner of the general land-office, by a letter of that date, addressed to L. C. Heaton, informed him, in response to his application made in a letter of June 30th, that 90 days from July 11th would be allowed to establish his claim to a patent upon this survey. On October 10, 1873, the commissioner wrote to Heaton a letter containing the following: "You were advised on the eighteenth of June last of the rejection of your application for a patent in the case, but, at your request of the thirtieth of the same month, the matter was held open for the period above stated, to afford you an opportunity to present rebutting testimony, etc. The allotted time having expired, and nothing presented on your part to sustain the validity of the said survey, you are hereby advised that the rejection of the case, as stated in my said communication of the eighteenth June last, is now made definite and final, so far as this office is concerned." No further action was taken in the department on the subject. It also appears that for the 100 acres not embraced in this survey, to make the 500 acres called for by warrant No. 494, another survey was made containing 517.46 acres, so that the whole amount of land embraced in the two surveys upon that warrant, nominally for 500 acres, actually embraced an excess of 1,699.46 acres.

On the twenty-seventh of May, 1880, congress passed an act to construe and define the act of February 18, 1871. The first and second sections of this act are as follows:

"Be it enacted by the senate and house of representatives of the United States of America, in congress assembled, that the act ceding to the state of Ohio the lands remaining unsurveyed and unsold in the Virginia military district in the state of Ohio had no reference to lands which were included in any survey or entry within said district founded upon military warrant or warrants upon continental establishment; and the true intent and meaning of said act was to cede to the state of Ohio only such lands as were unappropriated and not included in any survey or entry within said district, which survey or entry v.8s.c.-4

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