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U.S. Supreme Court

Elizabeth v. Pavement Company, 97 U.S. 126 (1877)

Elizabeth v. Pavement Company

97 U.S. 126


1. A foreign patent or publication describing an invention, unless published anterior to the making of the invention or discovery secured by letters patent issued by the United States, is no defense to a suit upon them.

2. The presumption arising from the oath of the applicant that he believes himself to be the first inventor or discoverer of the thing for which he seeks letters patent remains until the contrary is proved.

3. The use of an invention by the inventor or by persons under his direction, if made in good faith, solely in order to test its qualities, remedy its defects, and bring it to perfection, is not, although others thereby derive a knowledge of it, a public use of it within the meaning of the patent law, and does not preclude him from obtaining letter patent therefor.

4. Samuel Nicholson having, in 1847, invented a new and useful improvement in wooden pavements and filed in the Patent Office a caveat of his invention, put down in 1854, as an experiment, his wooden pavement on a street in Boston, where it was exposed to public view and traveled over for several years, and it proving successful, he, Aug. 7, 1854, obtained letters patent therefor. Held: 1. that there having been no public use or sale of the invention, he was entitled to such letters patent; 2. that they were not avoided by English letters patent for the same invention, enrolled in 1850. chanroblesvirtualawlibrary

Page 97 U. S. 127

5. Where contractors laid a pavement for a city which infringed the patent of Nicholson and the city paid them as much therefor as it would have had to pay him had he done the work, thus realizing no profits from the infringement, held that in a suit in equity, to recover profits, against the city and the contractors, the latter alone are responsible, although the former might have been enjoined before the completion of the work, and perhaps would have been liable in an action for damages.

6. Where profits are made by an infringes by the use of an article patented as an entirety or product, he is responsible to the patentee for them, unless he can show and the burden is on him to show it that a portion of them is the result of some other thing used by him.

7. No stipulations between a patentee and his assignee, as to royalty to be charged, can prevent the latter from recovering from an infringes the whole profits realized by reason of the infringement.

The facts are stated in the opinion of the Court.

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