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HOSKIN V. FISHER, 125 U. S. 217 (1888)

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U.S. Supreme Court

Hoskin v. Fisher, 125 U.S. 217 (1888)

Hoskin v. Fisher

No. 169

Argued February 7, 1888

Decided March 19, 1888

125 U.S. 217


Claims 2 and 3 of reissued letters patent No. 8876, granted to Frank H. Fisher September 2, 1879, on an application filed March 29, 1879, for an "improvement in hydraulic mining apparatus," the original patent No. 110,222, having been granted to Fisher December 20, 1870, namely,

"2. A ball-and-socket joint for connecting the discharge pipe of a hydraulic mining apparatus with the end of a swivel section, B, substantially as above described."

"3. The discharge pipe, E, having a semi-cylindrical or ball-shaped enlargement at its base, in combination with a corresponding cup-shaped socket, D, on the end of the horizontally swiveling section, B, substantially as and for the purpose described,"

are invalid.

A copy of the original patent being found in the record under a proper certificate from the clerk of the court below, and there being a stipulation under which it might have been introduced in evidence from the proceedings in another case, it is to be considered although there is no separate memorandum of its introduction in evidence.

There was a first reissue of the patent, granted as No. 5193, December 17, 1872, but no copy of it being found in the record, it cannot be presumed that claims 2 and 3 of the second reissue were found in the first reissue.

The plaintiffs having stated in their bill that the first reissue or a copy of it was ready in court to be produced, it was for them to put it in evidence if they desired to excuse the delay of more than eight years and three months in applying for the second reissue by showing that the first reissue, granted a little less than two years after the date of the original patent, contained claims 2 and 3 of the second reissue.

The question of such delay is to be considered as if there never had been any first reissue.

Claims 2 and 3 of the second reissue being claims to sub-combinations less than the whole combination covered by the single claim of the original patent, and the descriptive parts and drawings of the two specifications being alike, and it not being indicated in the original that the invention consisted in anything less than a combination of all the elements embraced in such single claim, and the delay not being explained, such claims were unlawful expansions of the original patent.

Bill in equity. Decree for complainants. Respondents appealed. The case is stated in the opinion of the Court. chanroblesvirtualawlibrary

Page 125 U. S. 218

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