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: