the claims of the patent surrendered by the executor." And on this point the Supreme Court declared, "It is the right of the patentee and his representatives to enlarge or restrict the claim so as to give it validity and secure the invention;" thereby reiterating the judgment of the same court in a similar case of the enlargement of the scope of a claim by reissue. Battin v. Taggert, 58 U. S. 17 How. 74, 15 L. ed. 37.

The reissue of the telegraph patent of Morse has already been referred to in § 81.

§ 84. Revision of Reissue Patents by the Courts.

The grant of reissue patents like that of original patents is subject to revision by the courts, who have always had the power to decide whether the reissue is or is not fraudulent, and whether the subject-matter of the claims of the reissue did or did not constitute the original invention of the patentee at the date he applied for the original patent. Hence any error made by the Commissioner of Patents in the grant of the reissue could and always can be corrected in the courts.

§ 85. Former Construction of the Act Maintained up to About 1880.

The practice of permitting patentees to surrender patents which were inoperative to protect the real or full invention made by the inventor by reason of too narrow claims, or were invalid by reason of the patentee having made too broad claims, thereby "claiming as his own invention more than he had a right to claim as new," was conceded by the courts up to about 1880.

§ 86. New Legal Construction of Act Relating to Reissues. In 1880 a new departure was taken by the United States Supreme Court who then discovered that the

previous practice of the court, composed of such judges as Marshall, and Story, and Nelson, and Curtis, was wrong, and that "it was never intended to allow a patent to be enlarged; but to allow the correction of mistakes inadvertently committed, and the restriction of claims which had been improperly made or which had been made too broad." Swain Turbine & Mfg. Co. v. Ladd, 102 U. S. 408, 26 L. ed. 184.

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This dictum was followed by another restricting the right of the patentee by reissue still more narrowly. Thus, in the case of James v. Campbell, 104 U. S. 356, 26 L. ed. 786, the court said, the law does not allow them [patentees] to take a reissue for anything but the same invention described and claimed in the original patent." The ground of this dictum appears to be that if a reissue claim is of broader scope than any claim of the original patent, then the reissue patent is not "for the same invention" as the original patent. This dictum is affirmed in the cases of Gage v. Herring, 107 U. S. 640, 27 L. ed. 601; Clements v. Odorless Excavating Apparatus Co. 109 U. S. 641, 27 L. ed. 1060; Mahn v. Harwood, 112 U. S. 354, 28 L. ed. 665.

This modern construction of the law of reissue by the Supreme Court appears at first view to have been relaxed in the recent case of Topliff v. Topliff, 145 U. S. 156, 36 L. ed. 660, in which the scope of the claim in suit (the 2d) appears to have been materially enlarged by the omission of a requirement characterizing the combination claimed in the original patent, and characterizing also the claim of the first reissue patent; but the opinion of the court shows that in their view the enlargement was only in appearance and not real.

The invention was an improvement in the spring

appliances of wheel carriages. As shown in the drawings, it contained two half elliptic springs (one at each side of the body) and the rear ends of these side springs were connected with radial arms secured to one rockshaft or rock-rod (called in the reissue patent the connecting rod B) while the front ends of the same two side springs were connected with radial arms secured to a corresponding rock-shaft (called the connecting rod B' in the reissue patent). The rear rock-shaft or rockrod was crosswise of the springs and parallel with and secured to the rear axle, while the front rock-shaft or rock-rod was parallel with and secured to the bolster over the fore axle.

The claim of the original patent contained the restriction that the rock-rods or connecting rods should be "secured directly to the front and rear axles." This restriction was evidently erroneous because the front rock-rod was not secured to the front axle but to the bolster. The claim of the first reissue patent corrected this error by requiring that connecting rods be "secured directly to the hind axle and front bolster;" but in claim second of the second reissue to which the opinion of the court relates, this restriction was wholly omitted, as the language of the claim is:

"The combination of the connecting rods BB', provided with arms at their ends, with the half elliptic springs AA', substantially as and for the purpose set forth."

In this case there certainly appears to the mechanical engineer to be a substantial enlargement of the scope of the claim of the original patent and of the first reissue thereof. The opinion of the court, after admitting the change of the language of the claim by the omission of

the requirement of the claim of the first reissue, states: "Whether this be an enlargement of the original claim or not, it is for substantially the same invention, and in view of the fact that the reissue was applied for as soon as the mistake was discovered, and before any rights in favor of third parties could be reasonably expected to have attached, or had in fact attached, we think this reissue is not open to the objections which have proved fatal to so many since the case of Miller v. Bridgeport Brass Co. 104 U. S. 350, 26 L. ed. 783, was decided."

After referring to the later decisions of the same court from Miller v. Bridgeport Brass Co. the opinion states:

"From this summary of the authorities it may be regarded as the settled rule of this court that the power to reissue may be exercised when the patent is inoperative by reason of the fact that the specification as originally drawn was defective or insufficient or the claims were narrower than the actual invention of the patentee, provided the error has arisen from inadvertence or mistake, and the patentee is guilty of no fraud or deception; but that such reissues are subject to the following qualifications:

"First, That it shall be for the same invention as the original patent, as such invention appears from the specification and claims of such original."

Topliff v. Topliff, 145 U. S. 170, 36 L. ed. 661.

The other two qualifications mentioned in the opinion are not quoted here as they have reference to the period during which a reissue may be applied for, and to the action of the Commissioner of Patents.

Upon considering the above quotations it appears that although the scope of the claim of the reissue patent

appears to have been enlarged upon the reissue, yet the court reiterates the requirement that the invention claimed in the reissue shall be "for the same invention as the original patent as such invention appears from the specification and claims of such original." While, therefore, there is an apparent enlargement of the scope of the claim of the reissue, the court must have been of the opinion that there was no actual enlargement of scope beyond the claim of the original patent, because this is the only conclusion that is compatible with “the settled rule" above quoted; and when the opinion is viewed in the light of this "settled rule" the decision does not change the newer Supreme Court construction of the laws of reissue to the effect that the invention claimed in a reissue to be "the same invention " mentioned in section 4916 must be the same as is described and claimed in the original patent.

It has been alleged that the opinion rendered in the Topliff case is an indication that the views of the present United States Supreme Court on reissues have been modified; this allegation being based upon the understanding that the claim of the Topliff reissue patent is broader in scope than that of the original patent. But any presumption of such indication is effectually nullified by the opinion of the court in next succeeding case of Freeman v. Asmus, 145 U. S. 226, 36 L. ed. 685.

In the latter case the invention in controversy was an improvement in blast furnaces for smelting iron ore; and in order that the decision may be appreciated it is necessary to give some idea of the nature of the invention. The interiors or cavities of blast furnaces have approximately the form of two superimposed truncated cones, the lower with the small end downward, and the