COMMISSIONER'S DECISION

In the matter of this application of Eunice B. Hussey, Administratrix of

Obed Hussey, deceased, for the extension of Reissued Letters Patent No.

449 for an improvement in Reaping Machines, dated the 14th day of April,

1857, being a division and re-issue of original Letters Patent No. 5227,

dated the 7th day of August, 1847, for an improvement in Reaping

machines.

[Sidenote: Applications of Mr. Hussey's Widow for Patent Extension all

Granted]

Also, the application of the same party for the extension of the

Reissued Letters Patent No. 451, for an improvement in Reaping Machines,

dated the 14th day of April 1851, being a division and Reissue of

Original Letters Patent No. 5227, dated the 7th day of August, 1847, for

an improvement in Reaping Machines.

Also, the application of the same party for the extension of Reissued

Letters Patent No. 742, for an improvement in Reaping Machines, dated

the 21st day of June, 1859, being a division of Reissued Letters Patent

No. 450, dated the 14th of April, 1857, being a division and Reissue of

original Letters Patent No. 5227, dated the 7th day of August, 1847, for

an improvement in Reaping Machines.

Also the application of the same party for the extension of Reissued

Letters Patent No. 917, dated the 28th day of February, 1860, for an

improvement in Reaping Machines, being a reissue of reissued Letters

Patent No. 743, dated June 21, 1859, the last named Patent being a

division and reissue of reissued Letters Patent No. 450, dated the 14th

day of April, 1857, which last mentioned patent was a division and

reissue of original Letters Patent No. 5227, dated the 7th of August,

1847, for an Improvement in Reaping Machines.

[Sidenote: Claim of Opponents Overruled]

These four applications for the extension of the said four patents, Nos.

449, 451, 742 and 917, having been made in due form on the 30th day of

November, 1860, and the Commissioner of Patents having caused to be

published in due and legal form, notice of said applications and of the

time and place when and where the same would be considered. And the

applicant, the administratrix and widow of the patentee, having duly

furnished and filed statements in writing under oath of the ascertained

value of the said inventions and improvements claimed in said patents,

and of the receipts and expenditures of the patentee and his legal

representatives sufficiently in detail to exhibit a true and faithful

account of loss and profit in any manner accruing to the patentee and

his legal representatives from and by reason of said inventions and

patents. And the testimony in these four cases having been duly filed

and considered and referred to the principal Examiner having charge of

the class of inventions to which these belong, and the said Examiner

having made a full report upon the said cases, and particularly that the

inventions or improvements, secured by the said four patents, were new

and patentable when patented. And the printed arguments in these cases

having been duly filed and considered, and the day of hearing viz. the

28th day of Feb., 1861, arrived, undersigned, the Acting Commissioner of

Patents, sitting at the time and place designated in the said published

notice to hear and decide upon the evidence produced before him both for

and against the extension, and having heard all persons who appeared to

show cause why the extension should not be granted, does decide as

follows, _viz._:

That the applications for extension in these cases were made at a proper

time, and not prematurely as the opponents have contended. The only

ground alleged to support the allegation that the applications were

premature is that the receipts for the year 1861 cannot be fully

ascertained at this time, but must be estimated or guessed at. If this

is a good reason for not considering the applications now it would also

be good on the 7th of August when the patent expires, for the receipts

would not then be ascertained, but would still be the subject of

estimate only. These receipts can be as well determined by this mode

now, as in August. The objection on this point is not therefore well

taken, and must be overruled. An application for extension cannot be

regarded as premature if made during the last year of the term of the

patent, and the total receipts are known or can be estimated with

reasonable certainty. In addition to this there seems to be no little

force in the argument of Counsel that the public convenience would be

promoted by an early decision upon these cases before manufacturers

enter upon their preparations for another year's business.

Besides these considerations, which of themselves are sufficient to

determine the propriety of hearing these cases at the present time, the

late Commissioner of Patents fixed this time for these hearings with

reference to the public interests therein, and is an additional reason

why it should be adhered to, yet I should have no hesitation in

postponing the hearing if it were made to appear that the public

interest were likely in any way to be subserved by such postponement.

[Sidenote: Value and Importance of Hussey Inventions Fully Established]

The report of the Examiner leaves no doubt in my mind as to the novelty

of each of the inventions which constitute the subject matter of the

four patents for which the extensions are asked. His report is equally

conclusive as to the _utility_ of the inventions, their _value

and importance_ to the public, and as to the patentee's diligence in

introducing them into public use, and his efforts to derive remuneration

from their sale.

From a careful examination of all these points myself, I have arrived at

the same conclusion as the Examiner.

[Sidenote: Opponents Contentions Not Proven by Facts]

The Counsel, Wm. N. Whitely, the opponent of these extensions have urged

with great pertinacity that the inventions are not novel. They allege

that the same thing existed before in Hiram Moore's "Big Harvester" in

Michigan--the Ambler Machine in New York--the Nicholson Machine in

Maryland--and the White and Hoyle Machines in Ohio. They also contend

that the invention claimed in Patent No. 451 especially, is of no

utility or value. On a careful review of all these points with the light

of the Argument of Counsel, I am quite clear that the Examiners

conclusion as to the novelty and utility of Hussey's invention are

sound. The Moore or "Big Harvester" cutting apparatus, the testimony

shows was designated for the performance of a different duty from

Hussey's and could not without essential changes of construction,

amounting to changes in its principle and mode of operation, be used for

the same purposes as that of Hussey.

The Ambler machine had a straight edge cutter vibrating on arms through

barbed or open slotted fingers. His Cutting apparatus lacked an

essential element found in Hussey's the scalloped cutter, to say nothing

of other material differences. This machine has nothing to impeach the

novelty of Hussey's inventions. The Nicholson Model has no vibrating

scalloped cutter which is one of the specific elements of Hussey's

combination. The White machine as shown in the exhibit produced and

which the testimony shows has been recently fabricated is not

substantially the same combination claimed in patent No. 742. It has not

like Hussey's a cutter with flush edges on both sides of the angle of

the forks on the _same side_ of the blade. The Hoyle Machine,

according to Hoyle's own deposition, is subsequent in date to Hussey's

invention.

[Sidenote: Utility of Hussey's Inventions]

It is contended by the opponents that the patent No. 451 has no utility

or value. I am inclined to the opinion that the utility of the

improvement specified in this patent is, of itself, small, compared with

the improvements covered by the other patents of Hussey now before me,

which are all of very great utility, and two of them indispensable in

the present state of the art. Still since the novelty of the improvement

claimed in No. 451, is admitted and is proven by the testimony of Henry

B. Renwick to have some utility as one of this series of patents, I

think it has sufficient utility to justify an extension.

[Sidenote: Mr. Hussey Did Not Abandon His Invention]

The contestant's counsel have argued from the testimony of Lovegrove,

that Hussey abandoned his inventions to the public by having them on

sale more than two years before applying for a patent. The testimony

does not sustain this point. Besides, an inventor does not abandon his

invention to the public by constructing a machine embracing it, in the

same factory where he makes and sells other machines. Nor by using it

experimentally in such a factory or elsewheres. Nor by keeping it in

such a factory from the autumn of one year to the harvest of the next

year. Nor by doing all or any of these things more than two years before

his application for a patent.

The statement of receipts and expenditures is unusually full and in

detail, more so than is necessary to fulfill the requirements of the

law.

There are two classes of expenditures and two corresponding classes of

receipts, _viz._:

1st. Expenditures and receipts on account of the manufacture and sale of

Reapers and Mowing Machines embracing the patentee's improvements.

2nd. Expenditures and receipts on account of the sales of Patent rights

and licenses, and compromise of infringements.

The Patentee manufactured and sold about 2,000 machines, and a few

other articles at a cost of materials and labor $195,292.88

Shop and Tools 12,500.00

One-quarter of patentee's time and expenses 9,008.22

___________

$216,801.10

The receipts on account of the sale of these manufactures were:

Cash for Reapers $216,607.90

Cash for parts of Reapers 22,416.58

Notes and Book Accounts 11,388.23

Cash for Corn Crushers 1,135.25

Discount and Interest 2,327.84

___________

$253,875.80

The result of the manufacturing business is an excess of receipts over

expenditures of $37,074.70. This statement, however, allows nothing for

manufacturer's profits. An allowance for such profit ought to be made but

in this case the object is to eliminate from the gross receipts such

profits as have in any manner accrued from or by reason of the inventions

claimed in the patents. Now receipts or profits that result from business

talents or skill in manufacturing or in financeering are not receipts or

profits in any manner accruing from or by reason of an invention. In the

case of Seymour and Morgan vs. McCormick-Howards Reports Vol. 16 p. 480,

the Supreme Court of the United States held that the ruling of Judge

Nelson that the whole profits of the manufacture of Reaping machines

in which one small part of the machines infringed a patent was to be

considered as accruing from the use of the patented part was erroneous,

and that a reasonable manufacturer's profit for the use of the Capital

so, in addition to the actual cost of the machine must first be deducted

from the gross receipts, and if then there was any excess, that might be

assigned to patents. This decision I should deem binding and conclusive

upon the subject even if I did not think that the values of business

capital and talent are as fairly charges against the receipts of business

as the values of a business house or tools.

[Sidenote: An Inadequate Profit]

In this case there is only an excess of $37,074.70 of the receipts over

the expenditure or something less than 14 per cent upon the gross amount

of sales. This is a very inadequate profit for manufacturing and selling,

but it is all there is, and it is all that I can allow.

If the excess of the receipts over the expenditures had amounted to three

times fourteen per cent, I should have had no hesitation in allowing the

whole of it for manufacturer's profit, and should not have deemed it more

than a reasonable allowance in view of the testimony of Long, which shows

that his firm have made a profit of over fifty per cent after paying

patent fees, on their manufacture of reapers.

It seems to be supposed from the reference which has been made to

Commissioner Holt's decision in the case of McCormick's application for

the extension of his patent of 1845, that he entertained views at

variance with those I have expressed as to the justice of allowing

manufacturer's profits as a part of the expenditure, and as an offset

against the receipts, but a careful examination of that opinion will show

clearly that Mr. Holt was not willing to allow a charge for the use of

Capital, and for wear and tear of machines (which are the Constituent

elements of a manufacturer's claim to allow for profit) and then, again

allow a second or duplicate charge for the same things under the name of

manufacturer's profits. This is the extent to which Mr. Holt goes, and I

fully agree with him.

The expenditures on account of the patents and the sale of rights and

licenses under the same are:

For three quarter of patentee's

labor and expense $27,024.68

For sundry legal and traveling expenses 44,562.88

__________

$71,587.56

The receipts on the same account are:

Obed Hussey, Who, of All Inventors, Made Bread Cheap · 第 9 / 28 题