BLANCHARD V. PUTNAM, 75 U. S. 420 (1869)

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U.S. Supreme Court

Blanchard v. Putnam, 75 U.S. 8 Wall. 420 420 (1869)

Blanchard v. Putnam

75 U.S. (8 Wall.) 420


1. Where, in a suit at law for infringement of a patent, witnesses testify to previous invention, knowledge, or use of the thing patented, the judgment will be reversed unless an antecedent compliance with the requirements of the 15th section of the Patent Act, requiring in the notice of special matter the names and places of residence of those whom the defendant intends to prove possessed prior knowledge, and where the same had been used, appear in the record. And this although no reversal for this cause have been asked by counsel, but the case have been argued wholly on other grounds.

2. Semble that the only proper comparison on a question of infringement, is of the defendant's machine with that of the plaintiffs, as described in the pleadings, and that it is no answer to the cause of action to plead or prove that the defendant is the licensee of the owner of another patent, and that his machine is constructed in accordance with that patent.

The 15th section of the Patent Act enacts that whenever the defendant relies in his defense on the fact of a previous invention, knowledge, or use of the thing patented,

"he shall state in his notice of special matter the names and places of residence of those whom he intends to prove to have possessed a prior knowledge of the thing and where the same had been used,"

and if he does not comply with that requirement, no such evidence can be received under the general issue.

With this statute in force, Alonzo Blanchard and others, being owners by assignment of a patent for an improvement in bending wood, granted to Thomas Blanchard, December chanrobles.com-red

Page 75 U. S. 421

18, 1849, reissued to him November 15, 1859, and extended for seven years from December 18, 1863, brought suit at law against Putnam and others for infringement. The defendants pleaded the general issue, but, so far as the transcript of the general record showed, gave no notice of any special defense.

On the trial, the plaintiffs gave in evidence the original patent, the reissue, the certificate of renewal and extension, the assignment, and facts tending to prove the alleged infringement, and rested.

The defendants, who were licensees under a patent granted March 11th, 1856, and reissued May 22d, 1862, to one Morris, for an improvement in wood-bending machines, offered in evidence the reissue.

The plaintiff objected to the admission of that evidence, but the court overruling the objection, admitted it, and the plaintiff excepted.

The defendants called as a witness one W. Mitchell, and offered to prove by him that in A.D. 1858, he saw in use at a factory of one Andrews, in Grand Detour, in the State of Illinois, a machine for bending plough handles similar to a model then shown to the witness and asserted by the defendants to be the same in its mode of operation as the plaintiff's patented machine, the defendants' counsel promising thereafter to connect the said evidence with other testimony, showing such a machine to have been in public use anterior to Blanchard's said invention, to "which evidence," said the bill of exceptions, "the plaintiff objected as not competent or proper." But the court overruled said objection and admitted the evidence. Other testimony was introduced by the defendants tending to prove that the machine described by the witness, or others like it, were in public use at that place before the date of the invention claimed and owned by the plaintiffs.

The court charged the jury at length. It told them that the defenses to the action were:

1st. That the Blanchard machine was void for want of novelty. chanrobles.com-red

Page 75 U. S. 422

2d. That the machine constructed under Morris' patent did not infringe.

On the first defense, while stating that it was not the intention of the court to go into an analysis of the testimony on the question of anticipation, the learned judge nevertheless enumerated the machines set up as prior inventions, leaving it for the jury to pass on the question of novelty or the want of it.

The case was now here on exceptions. chanrobles.com-red

Page 75 U. S. 423


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