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Campbell v. James.
fore the application, and with his consent and allowance; that the re-issue in suit was not for the same invention; that the plaintiff has no title; that the defendant is a public officer; and that he does not infringe in fact.
There is much controversy as to when, in fact, Norton first produced this invention. The application was made January 5th, 1863, but that is not early enough to anticipate knowledge and use of the invention by others; therefore, it rests upon the complainant to establish prior invention by Norton. It clearly and satisfactorily appears, from all the evidence, that he produced it before May 4th, 1859. By letter dated that day, Horatio King, First Assistant PostmasterGeneral, authorized the postmaster at Troy, New York, to use, for postmarking letters at that office, for the term of three months, one of Norton's improved stamps. Norton was an inventor of other improvements in such stamps, and there is a question as to whether the stamp referred to in that letter was this one, or some other. King's testimony and correspondence settles it that this is the one. After he went out of office, he was employed by Shavor and Corse to assist them about obtaining compensation for the use of this stamp, and was kept familiar with it all the while; and his testimony is that this is the one. General Dix was appointed postmaster at New York early in 1860. In August of that year, he wrote to King about a similar contrivance which he had got up, and, in a reply, directed by King, was warned that there was a prior invention which might subject that office to a heavy charge, if his contrivance was used. This enables King to testify with positiveness that entitles it to credit, that he had correspondence with Norton about this stamp before that time. One form of this instrument had a canceller made of cork. Norton permitted it to be used at the New York office, to test it. Its use commenced there soon after the correspondence of Dix with the Department in 1860, and was found there when Abraham Wakeman became postmaster there in 1861, or thereabouts, as is shown by his letter to the Third Assistant Postmaster-General, dated January 3d,
Campbell v. James.
1863. This correspondence, which does not depend upon mere memory for dates and circumstances, identifies this stamp very clearly. The complainant claims that the invention was made in 1853 or 1854, and described in an additional description of a caveat filed about August 7th, 1854. This additional description, produced from the caveat files, does not appear to have ever been officially filed under the hand of any custodian of the records, and is admitted to be a copy made in 1868, said to have been put into the files by mistake, in place of the original, which is not produced. The defendant has put in evidence the record of proceedings by the Commissioner of Patents disbarring Norton, as solicitor of patents, and adjudging that copy to be no part of the files; and claims that this destroys the effect of it as evidence. No evi. dence on which the Commissioner acted, nor any showing the misconduct of Norton, is produced. Norton testifies that the original was duly filed, and afterwards copied, and the copy returned to the files, by mistake, as he supposes. The plaintiff claims that the action of the Commissioner legitimately shows nothing on this question, and that Norton's testimony is all the evidence there is properly bearing upon the subject. The defendant has introduced a letter from Norton to Wakeman, postmaster at New York, dated February 6th, 1864, when Norton was interested in this patent as part owner, stating, that “the double cancelling stamp now used by you in your post-office, is my invention as far back as the year A. D. 1856, as I can most fully and satisfactorily prove. It was patented to me in the early part of the year 1863, upon an application made by me a long time before then. I had several such stamps made in 1858, as I can prove by the person who made them,” for the purpose of impeaching the testimony of Norton as to the caveat. The caveat, as such, long before the application for the patent, ceased to be operative, because not followed up. The only use the copy found can be is as a piece of evidence. The judgment of the Commissioner, as such, extended only to the exclusion of Norton as solicitor, and not to the effect of the paper as evidence en pais, (Act of
July 8th, 1870, sec. 17, 18 U. S. Stat, at Large, 200; Rev. Stat. U. S., sec. 487;) although its effect upon the instrument as a caveat of record might be greater. (Robertson v. Secombe Manufacturing Co., 10 Blatchf. C. C. R., 489.) What the weight of the evidence produced, and legitimately bearing upon the question, as to whether there was in fact an original paper of which the one now in the files is copy,
is not now considered, because it does not appear to be material. This letter of Norton's and its connection is stated, however, because, in connection with the evidence before stated, as to when he actually produced the patented article, it does appear to be somewhat material. It was introduced by the defendant as evidence. The part relied upon was that inconsistent with what Norton and the plaintiff now claim. But, when so put in, it was legitimate evidence, according to what should appear to be its just weight, as well as to those parts in favor of, as to those against him. This is a well settled rule in respect to evidence of admissions. (Stead v. Heaton, 4 T. R., 669; Davies v. Humphreys, 6 Mees. & Welsh., 153; 1 Greenl. Ev., $ 201; Wright v. Williams, 47 Vt., 222.) The letter tends to show that Norton actually had such stamps inade in 1858. It was written before there was any controversy as to this fact, and is strongly corroborative of the correctness of the finding, that the invented and patented instrument was brought forward before May 4th, 1859.
The defendant has introduced evidence tending to show that what is claimed to be the same invention was made by various other persons, and put into use at several post-offices, prior to that date even. The most prominent are at the Philadelphia office, by William M. Ireland, in 1851; at the New York office, by James J. Riley, in 1852; at the Cleveland office, by Charles E. Wheeler, in 1853; and, of these, that at the Cleveland office seems to be most confidently relied upon. If the question in respect to use at this office was to be determined upon a fair balance of proof, and upon the parol evidence alone, the balance might turn in the defendant's favor. But, the evidence to defeat the patent, by showing an invention
Campbell v. James.
prior to a clearly established one of the patentee, ought to be as clearly established, to the extent, at least, of removing all fair and reasonable doubts. There is, in the case, important written evidence upon this point, and the whole is to be weighed together. Wheeler himself, on the 28th day of November, 1863, wrote to A. N. Zevely, Assistant PostmasterGeneral, that he made the invention about the 1st of July, 1861, and that an order from the Department, then issued, led to it. On the 7th day of May, 1864, E. Cowles, postmaster at Cleveland, by whom Wheeler was employed, at his instance, wrote to the Postmaster-General, that the invention was made immediately upon the receipt of an order issued by Postmaster-General Holt. That order was issued at about the time of the invention stated by Wheeler in the letter, and could not have been issued long before. These deliberate statements, made by two persons separately, and at so near the time of the transaction in question, and giving circumstances accompanying it, which, in fact, existed as they stated, and made with a claim of first invention which would interest them to state that the invention was made as early as the facts would warrant, and made in writings now produced, far outweigh, in reliability, statements made wholly from memory, fifteen years later and further from the transaction. Taking the whole into account, the defendant has not shown, by the requisite measure of proof, that Wheeler invented what he did before Norton did what he did.
The direct testimony as to what Riley invented is contradictory and unsatisfactory. Riley testities that the instrument which he invented was made by Mr. Hoole, who is understood to be the manufacturer of stamps for the New York office. Hoole was sued by Shavor and Corse for infringing this patent, pleaded to the action, and a trial, verdict, and judgment against him were had. He did not show this invention of Riley, which, according to Riley, he must have known of, in that defence. This goes strongly to show that Riley's statements are not correct.
Ireland was a boy fifteen years old, in the Philadelphia
Campbell v. James.
office, in 1851. He was also there in the same employment in 1861. He doubtless did do in 1861 what he says he did in 1851. At this distance of time he may have carried back in his mind what he did, with the associations of 1861, to the same associations existing in 1851. When he made it in 1861 he remarked to others that it was his, without stating that he had made it previously. It is manifestly difficult to distinguish occasions in memory after so great a lapse of time.
Prior to 1860 there was nothing to call the attention of those employed in post-offices imperatively to the necessity of such an invention, while in the latter part of that year the strict requirements of the Department about cancelling postage stamps separately, and the increased use of the mails consequent upon the war in 1861, brought the subject sharply up. This brought out contrivances for the same purpose in post-offices in various parts of the country, and more probably gave rise to those particularly mentioned, as well as to others about which evidence was given, but which have not been particularly discussed here.
There is another consideration bearing upon this branch of the case, which is, that none of the things produced by these persons, if they produced what they say they did, were the same as this patented invention; nor were any of them the equivalent of it in all material respects. The discovery was, not that letters could be postmarked, and the postage stamps cancelled, at one blow; and, if it had been, that mere idea would not have been patentable; and, if that had been patentable to the first discoverer, it would have been anticipated by two prior patents, one of August 9th, 1859, and the other of December 16th, 1862, issued to Norton. But, the patent is for a machine or instrument that will do both of these things at one blow; and the question would be, whether the other machines were like it. In this, the two faces which make impressions are connected by a cross-bar fixed in the middle to a brad-awl handle, on which both are balanced, so that a blow with it will bring both faces to the surface to be stamped, although not aimed so as to strike precisely perpen