This suit was brought for an alleged infringement of the complainant's reissued letters-patent, No. 5216, dated Jan. 7, 1873, for an improvement in corset-springs.
The original letters bear date July 17, 1866, and were issued to Samuel H. Barnes. The reissue was made to the complainant, under her then name, Frances Lee Barnes, executrix of the original patentee.
The specification for the reissue declares:-
"This invention consists in forming the springs of corsets of two or more metallic plates, placed one upon another, and so connected as to prevent them from sliding off each other laterally or edgewise, and at the same time admit of their playing or sliding upon each other, in the direction of their length or longitudinally, whereby their flexibility and elasticity are greatly increased, while at the same time much strength is obtained."
The second claim is as follows:-
"A pair of corset-springs, each member of the pair being composed or two or more metallic plates, placed on on another, and fastened together at their centres, and so connected at or near each end that they can move or play on each other in the direction of their length."
The bill alleges that Barnes was the original and first inventor of the improvement covered by the reissued letters-patent, and that it had not, at the time of his application for the original letters, been for more than two years in public use or on sale, with his consent or allowance.
The answer takes issue on this averment and also denies infringement. On a final hearing the court dismissed the bill, and the complainant appealed.
As the second defense above mentioned, it is sufficient to say that the evidence establishes beyond controversy the infringement by the defendants of the second claim of the reissue.
We have, therefore, to consider whether the defense that the patented invention had, with the consent of the inventor, been publicly used for more than two years prior to his application for the original letters, is sustained by the testimony in the record.
The sixth, seventh, and fifteenth sections of the act of July 4, 1836, c. 357 (5 Stat. 117), as qualified by the seventh section of the act of March 8, 1839, c. 88 (id. 353), were in force at the date of his application. Their effect is to render letters-patent invalid if the invention which they cover was in public use, with the consent and allowance of the inventor, for more than two years prior to his application. Since the passage of the act of 1839 it has been strenuously contended that the public use of an invention for more than two years before such application, even without his consent and allowance, renders the letters-patent therefor void.
It is unnecessary in this case to decide this question, for the alleged use of the invention covered by the letters-patent to Barnes is conceded to have been with his express consent.
The evidence on which the defendants rely to establish a prior public use of the invention consists mainly of the testimony of the complainant.
She testifies that Barnes invented the improvement covered by his patent between January and May, 1855; that between the dates named the witness and her friend Miss Cugier were complaining of the breaking of their corset-steels. Barnes, who was present, and was an intimate friend of the witness, said he thought he could make her a pair that would not break. At their next interview he presented her with a pair of corset-steels which he himself had made. The witness wore these steels a long time. In 1858 Barnes made and presented to her another pair, which she also wore a long time. When the corsets in which these steels were used wore out, the witness ripped them open and took out the steels and put them in new corsets. This was done several times.
It is admitted, and, in fact, is asserted, by complainant, that these steels embodied the invention afterwards patented by Barnes and covered by the reissued letters-patent on which this suit is brought.
Joseph H. Sturgis, another witness for complainant, testifies that in 1863 Barnes spoke to him about two inventions made by himself, one of which was a corset-steel, and that he went to the house of Barnes to see them. Before this time, and after the transactions testified to by the complainant, Barnes and she had intermarried. Barnes said his wife had a pair of steels made according to his invention in the corsets which she was then wearing, and if she would take them off he would show them to witness. Mrs. Barnes went out, and returned with a pair of corsets and a pair of scissors, and ripped the corsets open and took out the steels. Barnes then explained to witness how they were made and used.