tween the inventor and fraudulent spoliator by the courts of England, and most signally and effectually has this been done by this court, as is seen in the cases of Pennock v. Dialogue, 2 Pet. 1, and of Shaw v. Cooper, 7 Pet. 292." The opinion of the court treated the case as one in which the rights of Winsor could not be affected, because the knowledge of the invention had been surreptitiously obtained and communicated to the public; and went on to remark that the instruction to the jury at circuit was in strict conformity with that principle, and with the doctrines declared in Pennock v. Dialogue and Shaw v. Cooper. It closed the opinion by saying: "That instruction diminishes or excludes no proper ground upon which the conduct and intent of the plaintiff below, as evinced either by declarations or acts, or by omission to speak or act, and on which also the justice and integrity of the conduct of the defendants, were to be examined and determined. It submitted the conduct and intentions of both plaintiff and defendants to the jury, as questions of fact to be decided by them, guided simply by such rules of law as had been settled with reference to issues like the one before them; and upon those questions of fact the jury have responded in favor of the plaintiff below, the defendant in error. We think that the rejection by the court of the prayers offered by the defendants at the trial was warranted by the character of those prayers, as having a tendency to narrow the inquiry by the jury to an imperfect and partial view of the case, and to divert their minds from a full comprehension of the merits of the controversy." It is thus seen that this case not only turned upon a right claimed wholly under the first clause of the seventh section, but that it was held that a fraudulent, piratical, and surreptitious purchase or construction of a machine, like that shown in that case, was not such a purchase or construction as was covered by the first clause of the seventh section. The decision in that case does not affect the one now before the court. It may well be that a fraudulent, surreptitious, and piratical purchase or construction or use of an invention prior to the application for the patent would not affect the rights of the patentee under either clause of the seventh section; but the present is not such a case as that which existed in Kendall v. Winsor. In the use of driven wells in public, at Cortland, by others than Green, more than two years before his application, we see nothing in the evidence under which such use can properly be characterized as fraudulent, piratical, or surreptitious. Green's invention was made in 1861. The brief of the appellants at the former hearing contained this statement: "But it is not denied that in this case there is proof that after the invention by Green in 1861, and his public exhibition of it in Cortland, the rumor of it spread, and the value of it became apparent, and other persons, without Green's consent and allowance, did put the invention into public use without his knowledge." The application for the patent was made March 17, 1866. It is true that the driven wells thus referred to were constructed, some by Mudge and some by Suggett, who obtained knowledge of the invention from Green. It is admitted in the appellants' brief on the present application that, subsequently to Green's invention, and more than two years prior to his application, Suggett put down four driven wells, for persons named Copeland, Seaman, Foster, and Samson respectively, and Mudge, five wells, for persons named Pomeroy, Bolles, Bates, Seaman, and Hicks respectively. But there is nothing that indicates in regard to these wells fraud or piracy or surreptitious-, ness, in the sense of the decision in Kendall v. Winsor. The invention was made by Green and publicly exhibited, the rumor of it spread and its value became apparent, and the persons for whom the wells so put down were made had them constructed during the time when, for five years after the invention, Green failed to apply for a patent. Of course, Green, from the moment of the invention, had an inchoate property therein, which he could complete by taking a patent. The first clause of the seventh section of the act of 1839 gave to the persons for whom those wells were constructed a right to use them

without the consent of Green, and the second clause of that section had the effect to make Green's patent invalid because of the use of the invention by those persons more than two years before he applied for his patent.

In the case of Sanders v. Logan, 2 Fish. Pat. Cas. 167, in 1861, in the circuit court for the Western district of Pennsylvania, before Mr. Justice GRIER and Judge MCCANDLESS, the bill was dismissed because the patentee had abandoned his invention, and because it had been publicly used, with his knowledge, consent, and approbation, more than two years prior to the application for the patent.

In the case of Hide Co. v. Tool Co., 4 Fish. Pat. Cas. 284, in 1870, in the circuit court for the district of Massachusetts, before Judge SHEPLEY, the question tried was, whether the invention was in public use or on sale, with the knowledge and consent of the inventor, more than two years before he applied for his patent, and whether he had abandoned his invention to the public prior to his application. On these issues the jury found for the de

fendants.

In McMillin v. Barclay, 5 Fish. Pat. Cas. 189, in 1871, in the circuit court for the Western district of Pennsylvania, before Judge MCKENNAN, two patents were involved. In regard to one of them the defense was that the patentee had himself used the invention in public more than two years before he applied for his patent. It was held that, when it was so used, it was a complete invention, and the patent was held to be invalid. In regard to the other patent, the defense was that of abandonment by the patentee subsequently to the making of his application, the application having been made in 1855, and the patent having been granted in 1867, and the invention having gone into use subsequently to the application. The defense of the abandonment of the invention after the application was filed was overruled.

In Russell & Erwin Co. v. Mallory, 10 Blatchf. 140, in 1872, in the circuit court for the district of Connecticut, before Judges WOODRUFF and SHIPMAN, the question involved related entirely to an abandonment of the invention and to the effect of the acts of the patentee within two years prior to the application.

In Jones v. Sewall, 3 Cliff. 563, in 1873, in the circuit court for the district of Massachusetts, before Mr. Justice CLIFFORD, it was set up as a defense that the several improvements covered by the patent sued on were in public use and on sale more than two years before the patentee made his application for the patent. The court overruled the defense, holding that there was no evidence to show that the inventions, or either of them, were in public use or on sale more than two years before the inventor applied for a patent, or for any shorter period, with his consent and allowance, or that he had any knowledge of any such sale or public use at the time it was made; and that, on the contrary, the evidence showed that he never gave his consent to any such sales, and that he constantly asserted that he intended to apply for a patent. The decision was placed upon the ground, that such consent and allowance were necessary to the invalidity of the patent. This was a direct adjudication upon the point involved in the present case.

In Klein v. Russell, 19 Wall. 433, at October term, 1873, the defense was want of novelty. The plaintiff had a judgment, which was affirmed by this court. At the trial, the defendant requested the court to charge the jury: "(1) That the invention, as described in the patent of February, 1870, is the treatment of bark-tanned sheep and lamb skins by the employment of fat liquor, and if such treatment was known to others and more than two years before the plaintiff applied for his patent, his patent is void." He also requested the court to instruct the jury: "(7) That if fat liquor had been used substantially in the manner specified in the plaintiff's patent, for the purpose of rendering any kind of leather soft and supple, more than two years before the plaintiff applied for a patent, the plaintiff cannot recover, even though it had

not been so used in dressing bark-tanned lamb or sheep skins." These instructions were refused, and the failure to give them was alleged as error. The defendant in error contended, in this court, that the first request did not correctly or fully describe the invention; that the employment of fat liquor merely was not the whole of the invention, but that it was the employment of fat liquor in the condition and manner described in the specification; and that the refusal to charge the seventh request was proper. În regard to the first request, this court said that the instruction was properly refused, and that it stated inaccurately the rule of law which it involved. The court added: "A patent relates back, where the question of novelty is in issue, to the date of the invention, and not to the time of the application for its issue. The jury had already been sufficiently instructed upon the subject. The instruction assumes that the reissue was for the use of fat liquor, without reference to the point whether it were hot or cold." The court then proceeded to hold that the two claims of the patent sued on required that the fat liquor should be heated, and that, therefore, the first instruction asked was improper. It is quite apparent that the court considered only the issue of novelty, and that it did not pass upon the question involved in the present case. The seventh request, like the first, was inaccurate, because it referred to the time of the application, and not to the date of the invention; and, in regard to the seventh request, the court merely said that it was satisfied with the rulings of the court below in regard to that request and four others which, it stated, might be "grouped and disposed of together;" and it added that neither of them required any special remark. We cannot regard the case of Klein v. Russell as adjudicating the question now presented.

In Henry v. Francestown Co., 2 Ban. & A. 221, in 1876, in the circuit court for the district of New Hampshire, before Judge SHEPLEY, the defense was the public use and sale of the invention by the patentee more than two years before he applied for his patent. It was held that the use and sales by him were experimental.

In Jar Co. v. Wright, 94 U. S. 92, at October term, 1876, a patent granted in 1870, on an application made in January, 1868, the invention having been completed in June, 1859, was held void, because (1) there was a purchase, sale, and prior use of the invention more than two years before the application; and (2) at the time of the application the invention had been abandoned to the public. The sale and prior use were by the inventor himself. This case does not adjudge the point here involved.

In Kelleher v. Darling, 4 Cliff. 424, in 1878, in the circuit court for the district of Massachusetts, before Mr. Justice CLIFFORD, the original patent was issued in 1871, under the act of July 8, 1870, and was divided, on its subsequent surrender, into two reissued patents. No question arose in the case under the act of 1839. So, too, the case of Henry v. Tool Co., 3 Ban. & A., 501, in 1878, in the circuit court for the district of Rhode Island, before Mr. Justice CLIFFORD, arose under the act of 1870.

In Draper v. Wattles, 3 Ban. & A. 618, in 1878, in the circuit court for the district of Massachusetts, before Judge LOWELL, the original patent was issued in 1869, on an application made in June, 1868. The court held that, under the seventh section of the act of 1839, the sale or use more than two years prior to the application must have been with the consent or allowance of the inventor, in order to invalidate the patent, and that the patent was not invalidated by the sale by the inventor more than two years before he applied for his patent of an article which did not embody the whole of his invention as subsequently patented. The point involved in the present case was thus directly adjudged.

In Bates v. Coe, 98 U. S. 31, at October term, 1878, the original patent was issued in 1863. Mr. Justice CLIFFORD, in delivering the opinion of the court, stated that the answer did not set up as a defense that the invention had

been in public use or on sale in this country for more than two years before the application for the patent, and that there was nothing in the record to support that proposition, if it had been well pleaded. His observation, therefore, citing Pierson v. Screw Co., 3 Story, 402, that, under the seventh section of the act of 1839, the public use or sale, in order to defeat the right of the inventor to the patent, must have been with his consent and allowance for more than two years prior to the application, was an observation made in regard to a point not in issue or in judgment.

In Henry v. Francestown Co., 5 Ban. & A. 108, in the circuit court for the district of New Hampshire, in 1880, before Judge LOWELL, the patent had been granted in 1859, on an application filed in 1857. On proof that the inventor had, more than two years prior to his application, sold articles containing his invention, not experimentally, the patent was held invalid.

In Graham v. McCormick, 10 Biss. 39, 11 Fed. Rep. 859, and 5 Ban. & A. 247, in the circuit court for the Northern district of Illinois, in 1880, before Judge DRUMMOND, the patent having been granted in 1868, the question was as to a use or sale by the inventor more than two years before his application; and it was held that, as a matter of fact, the sale and use by him were experimental.

In Brickill v. Mayor, etc., 18 Blatchf. 273, 7 Fed. Rep. 479, in 1880, in the circuit court for the Southern district of New York, before Judge WHEELER, the patent had been granted in 1868, and the defendant, the city of New York, set up a right to use the invention, which was for the combination of a heating apparatus with a steam fire engine, by reason of the fact that the patentee had made it while in the employ of the fire department of the city, and had attached it to two of the city fire engines. The court held, not withstanding the construction put upon the first clause of section 7 of the act of 1839 by this court in McClurg v. Kingsland, 1 How. 202, that the defendants had acquired no right beyond the right to use the specific machines constructed prior to the application for the patent.

In Campbell v. Mayor, etc., 20 Blatchf. 67, 9 Fed. Rep. 500, in 1881, in the circuit court for the Southern district of New York, before Judge WHEELER, the patent having been granted in 1864, and the invention having been made, sold, and used by others than the patentee after he had invented it, and more than two years before he applied for his patent, but without his consent and allowance, it was held by the court that, under the second clause of the seventh section of the act of 1839, the public use and sale having been without the consent or allowance of the inventor, the patent was not invalid. This was a direct adjudication upon the point involved in the present case.

In Davis v. Fredericks, 21 Blatchf. 556, 19 Fed. Rep. 99, in 1884, in the circuit court for the Southern district of New York, before Judge WHEELER, the patent having been granted in 1868, the invention had got into public use and on sale more than two years prior to the application for the patent, but without the inventor's consent or allowance. The court held, following Campbell v. Mayor, etc., that the patent was not invalid, thus adjudging the point in question here.

Reference is also made, in the brief for the appellants, to 12 cases reported in 1 MacArth. Pat. Cas. running from 1841 to 1859, decided by the judges of the circuit and supreme courts of the District of Columbia, on appeals from the commissioner of patents; but in none of them was the point here involved in judgment. In Heath v. Hildreth (p. 12) no question arose under the act of 1839. In Arnold v. Bishop (p. 27) consent by the applicant to the use of his invention for more than two years prior to his application was shown. In Hunt v. Howe (p. 366) the sale was made by the inventor. In Rugg v. Haines (p. 420) the use and sale were with the consent and allowance of the applicant. In Mowry v. Barber (p. 563) the making and selling were by the applicant. In Carroll v. Gambrill (p. 581) the applicant was defeated upon

the ground of estoppel and of abandonment of the invention. In Ellithorp v. Robertson (p. 585) he was defeated upon the ground of laches on his part, amounting to abandonment. In Blackinton v. Douglass (p. 622) there was public use with the consent of the inventor. This was also the case in Justice v. Jones (p. 635.) In Wickersham v. Singer (p. 645) there were abandonment by the inventor and consent and allowance by him. In Savary v. Lauth (p. 691) the applicants were defeated on the ground of laches by them and presumed acquiescence. In Spear v. Belson (p. 699) it was held that laches and delay on the part of the applicant had caused a forfeiture of his right.

The review we have given of the cases now cited on behalf of the appellants shows no adjudication by this court on the question involved, and a direct adjudication as to the effect of the second clause of the seventh section of the act of 1839, in accordance with that contended for by the appellants, in only four cases in circuit courts, (not including Andrews v. Carman.) To the contrary effect is the case of Egbert v. Lippmann, 15 Blatchf. 295, commented on in the former opinion, (123 U. S. 270, 271, 8 Sup. Ct. Rep. 103.)

It is alleged by the appellants that this court was in error in stating, as it did in its former opinion, (123 U. S. 269, 8 Sup. Ct. Rep. 102,) that, in Andrews v. Carman, 13 Blatchf. 307, 324, the question of the use of Green's invention by others more than two years prior to his application does not appear to have been raised; that it was in fact raised; and that the inference to the contrary grows out of a clerical error in the published opinion in Andrews v. Carman. It may be accepted that this is so, but the question of law involved is the very question now under consideration. It is also alleged that the same question was distinctly raised, in proof and argument, in the interference case between Green and Suggett respecting this invention, and that Green's patent was thereafter granted, with the understanding in the patent office that the Cortland wells now in question had been constructed subsequently to Green's invention and more than two years before his application. But patents are often granted with a view to leaving open, to be decided by the courts, questions which the patent office does not deem it proper to adjudicate against the applicant by withholding the patent. It is also urged that in the rules of the patent office, promulgated between the time of the passage of the act of March 3, 1839, and the enactment of the act of July 8, 1870, it was made known to applicants for patents that a patent would not be granted if the invention had been in public use or on sale, with the consent and allowance of the inventor, for more than two years before his application. It was undoubtedly true that such a state of facts was sufficient ground for withholding a patent; but the promulgation and enforcement of such a rule cannot be regarded as having the effect of a judicial or authoritative adjudication of the question under consideration. The argument sought to be founded upon the various phases assumed by the provisions of the act of July 8, 1870, in its passage through the two houses of congress, is very unsafe and unreliable, as a basis of judicial action, particularly when the only inference sought to be drawn is one as to what view congress took of the act of 1839, in enacting the act of 1870. If any inference is to be drawn on the subject, it can only properly be drawn from the act of 1870 as it stands on the statute book, and that inference is commented on in the former opinion of this court, at page 275 of 123 U. S., 8 Sup. Ct. Rep. 104, 105. The doctrine invoked by the appellants, that where the meaning of a statute has been settled by judicial construction that construction becomes a part of the statute, is not applicable to the present case. A question arising in regard to the construction of a statute of the United States concerning patents for inventions cannot be regarded as judicially settled when it has not been so settled by the highest judicial authority which can pass upon the question. The earliest decision of a circuit court, directly adjudging the point here involved, was in 1873. This