The New York Herald Newspaper, September 11, 1852, Page 2

The Argument of Francie B, Cutting, @F Tus PART OF DAY, UPON THB MOTION FOR A PER- YBIUAL INJUNCTION ON THE BQUITY SIDE OF TRE @MEVIT COURT OF THE UNITED STATES, BRVORE 1852. of great depression that I rise | and patience, 90 on the one epee pe cay Hirt apon unnecessary inresd upon the ts of the Court ; on the other, I am of what is due to him to whom [ d most faithful exertions. Contrary ions, I found, after I had reached it would fall to my lot to wade is vast expanse ofevidence, and to sift this uninteresting mass, sees through volumes, for tne purpose of bringing to the notice of the Court those testimony which the defendant and are worthy of your attention, and defence; atall evi- great ted questions of arraying a large number oj wiedies ib each other, involving serious ictions, deeply their characters, and, in some instances, Daeg podiny isrvy-< n of perjury, ec ear ent, ought to upon LJ . ? iB Mihat all these when I came to this city, that Matters of disputed fact would be submitted to an ‘imspartial jury I know the difficulties surrounding tebe attempt [ am about to make; but ing upon eur Honors patience while I pursue course marked out for me, I am cheered by the hope that, Dewever I may weary your patience, I shall meet ‘with the same kindness and forbearance which has been v0 uniformly extended to others in this case An examination of the ovidence will invalve me in ag beng and tedious discussion. In erder to give the testimony its proper application to the different qmertions of Jaw, it becomes neceseary, in the first =. to examine parecer the patents that are subject of debate; and this i : 1 & td ! E i ! E 2, l i E i 2 Be 5s 4 if | E. Hf 5 Mt i a8 become the mmore necessary, since my cloquent, eminent, and @etingvished associate, but aiew moments since, wequested that I should add to his intereating re marke upon otber topics, some observations in refer- mee to the nature and validity of these grants. The BW proceeds upon two distinct and independent mts. One of thom will require no very ex- jive examination—I mean the invention of Bay ward, of a composition of sulphur and rabber, fm the proportions mentioned im his specification, and which deseribes the process for applying this @omporition te the manuatacture of rubber goods We ke simply a patent for a composition of sulphur | and rubber, and upon its face the specificavion is | lear, biguous, and requires neither illustra- tie por explanation The objections tothis patent yes upon other grounds. other grant is an alleged renewal issacd in 1849, upon the eurrendor of the patent of 18.44, and | im order to asverinin the precise point and meaning ¢f this renewal, it is indisponsible to refer to the erigwal letters issacd in 1841; because, Ido not altogether in the defioition which my learned Inends on the other side give to the patent of 1849. a nd them to claim that it isa grant for ication of a bigh degree of hoat, gradually d, to a composition, of which rubber and eadpbur are component parts. In my judgment the emt of 1849 is that, and a great deal more It much more extensive than the original invention, aad our first proposition is, that for that and other Peasons it is void ‘Phe patent of 1844 was, for some reason, never eet in thebili of complaint, that simply places Defore the Court the re issued patent, and thus dees not present the marked differences between them. Before eri Mesy specification aceompa- nying the patent of 1549, I will explain what I eq pese the invention was originally claimed to be, in erder thot the Vourt may more readily apply the idea I wish to convoy. According to my under- standing of the original grant, so far from its being @ petent for the erpuesen of heat generally to vabber, whereversulpbur isa component part, either th or) without the additions of other materials, eevery of the chemical darnending, an all ister three ingredients, and which, throughout this Cast, has been termed, by the witnesses and partios, the triple compound, to wit: rubber, sulphur, and lead. There three ingredients constitute what, for bre- . Vity’s ake, I will continue to call ‘‘ the triple com- pound.” The alleged invention is of a triple eom- pound, in the preportions and quantities defined in ‘Mie specification, and which mixture is subjected to a high degree of host. It isnot a patent which @iaims artificial heat genorally, or all descriptions of heet asa distinct invention; nor doesit under- take to claim a right to tho application of heat generally, when applied to rubber, but is only for an alleged discovery of a composition of matter, aad subjecting it to the action of artificial dry heat. ‘The priucipal idea struck out by the patentee, and whieh he claims to be his invention, is not the art, wer the discovery of tho effect of heat generally wpen rubber combined with sulphur; but is merely fer a particular composition of matter, which he — to heat in an oven or clear room. ‘ith these preliminary remarks, I will now read she patent of 1544, upon which the patent of 134) depends. Tie patent of 1844 is as follows:—(Page ~@B of dofendes*s answer ) Thus it is mavifest that load, sulphur and rubber, mixed and compounded together in the proportions | deseribed, ie the only subject claimed to have been Smvented. The language employed by the patentee, when he sams up fis invention, shows clearly and @istinetly the limits and boundaries of his alledged @iscovery. These are his own words:— Having thus fully deecribed the nature of the process by whieh I prepare my improved India rubber fabrio, I Go bereby declare, that I do not now claim the combining @f sulphur with caoutchouc, either in the propoction | mamed. or in any other; but I do claim the combining | the said gum with sulphur and with white lead, so as a triple compound. either in the propertions wemed or in any other, within such limits. as produce alike result, And I will here remark, that ‘although I have obtained the best results from the carbo. mate of lead. other salts of lead, or the oxides of that metal. may be substituted therefor, and will produce a ; 1, therefore, under this head, claim the em- ployment of either of the oxides or salts ‘of lead, in the mee of the white lead, in the above named compound. also claim the formation of a fwbric of the India rub- ‘Der, by interposing layers of cotton batting between those of the gum, inthe manner and for the purpose above des- eribed. I likewise claim, in combination with the fore- gre, the process of exposing the India rubber fabric to ¢ action of a high degree of heat, such as is herein ape- eified, by means of which my improved compound is ef- feetually changed in its properties, so ax to protect it from decomposition, or deterioration by the action of ‘hose agents which have heretofore been found to pro- | Gace that effect upon Indie rubber goods. CHARLES GOODYEAR. Now, I submit to the Court that nothing ean be | more clear. less ambiguous, or Jess m the patent I bave just read. It is unusually remarkably accvrate in expr and in the facility with which Sdear of the patent It is a rare thing to seo ¢ specification so clear, so free from all subject of do- | bate, 60 free from any’ hing like a wrong use or of languoge. Cring language in its sense and signification—giving the wo mary andobvions meani there is no an Ete tpecification. It is nothing m it little or be it ma triple compound,” whieh, w ed to t tion of great beat, produce fabric. eribes the mode, the process, the part @rtions, snd is @ claim for » comt sulphur end jead with rubber 3t is not to be devicd the old; the rubber ia old, the sv is old, and keat, ae an cl} , then. is the al 1 aking old things, mixing t ions, and, when combine and thus producing a ne i spon that eubje r gr 2 ate rights to the extent of the ¢ beyond it } Row, having seen what the alleged discove f 1844 is, it becomes my daty to bring to your » the re-issued patent of 1819, and to ehow that studiously and artfully, by the most f machinery pands and enlarge original clair ing view the whole of the origins! 2, the motives and Centions of the in the procurement Patent of 1449, will become very 8 investigation, I will bring | %o your Honours attention the tact, that a3 late ns ia | 1846, Mr. Goodyear was utterly ignorant of the ca pacity of steam when applied to rubber and sul- | ge to produce the dosired chem enange in m. IJ will show that it waz an idea utterly un &nown to him at that pcrioi (1516), and that he then repudiated, expressly and distinctly, the bolief, that steam could be used instend of dry heat, and d his apprehensions that if ‘uny poraon should set up a claim for using steam, it might Joad to questions of an embarrassing character, ta tal to his patent of 1844. This application of steam was discovered ~ L poog a introduced into country long before the year 149. ot became faewa that the application of steam to @ composition of rabber and of sulpbur, even wiva- wot the would produce the effect upon these two articles mere ne Pg cannot pro- duce them. In the march of improvement tow iSite aay, ‘as rubber fabrics increased in im- portance and value, and excited the genius and in- ‘Yentive faculties of the community ,repeated experi- ments from day to day communicated new results ‘to the country, and it ident that if those who claimed under Goodyear were to stand upon a patent for a composition of matter subjected to Tana teen We fm. 1 of nothing more. materia lare r js old, result uy » but eas of es salpbur, or who ie employed Dew curing process some iets Prident tbat the Patentees must means cularge the spectications of their patent of 1844, in order to 80} and annihilate tion. Now we will yest ts the patent the one of 1844, and whether it doos not to an extraordinary extent introduce other operations and ovber combinations,and extend beyond the actual alleged invention. T make these remarks pow, decanse my eminent friend desired I should throw in ecme suggestions as to the validity of this re-issued grant, 4 hereafter fore sent oe wore distinetly. Isak your to the atpgularly com; Dew grant, because it will more easy and i $e rabben-witiencteumioea = pe a ones Tul ir, W en] one ol 1 or combination of matter with tb; thus covering the whole grounds of all hinds of heat, applied to the simple substance of rubber, in whatever shape or form it may be used. If this be its sound eonatrue- tion, the t must be void. To issued But even taking the whole specification, in con- ection with my first claim in the sammary, and yolind Soe vomeet the modesty of my learned nds, which prevents th from i jing the ex- traordinary claim to the application (alae apa rally in the manufacture pie adopting for a moment the views which the modesty or pony, of my learned friends induces them now to talk of the ent of 1849, I submit that evon then it is far roader than the real invention. They insist it is only a patent for the application of heat to rubber, as ‘ibed in the cation, to wit: mixed with’ sulphur lone, or with sulpbur and any other substance, and that it precludes the use of any other compound, no mat- ter what may be the other materials of tho compo sition, as long a9 sulphur is one of them. No mat- ter what the mgepuity, or the imagination, or even tho **dreama” of men may bring forthin the future, it ie said to cover every possible ingredient that oan be mixed with rubber and sulphur. If there should be detected a particle of sujphur, whether intro- dused directly 28 a substance, or insinuated into the rubber by means of vapor, it ia asserted to be an infringement of their patent. Instead of restricting themselves to a claim for the triple compound, they now insist that the use of rubber with sulphar alone, even if used in the shape of a ges, or in the form of fleur of sulphur, is an invasion of thoir territory They alco claim, under their new grant, the ex- elasive right to spply heat of ail kinds to rabber and sulphur, whether produced by atmospberic oom- bustion, from wood, or anthricite coala, or hoat of any deseription, even if drawn from the lightuings of heaven, if that be heat, or if obtained trom the vapor of water when converted into steam. Their olaim to the use of heat is as boundless as the re- fies of the world, and if these should be ex- susted in the discovery of a new art, the uze of a new discovery would infringe upon them if applied to rubber. New discoveries may be in- voked from the hidden regions of the ocarth or air; but they will avail nothing against the potercy of the re-issved patent, for those who own it exclaim, that notwithstanding any ingenuity or any new inventions,they have monopo- lized the use of heat when applied to rubber and sulphur. This claim, I repeat. goes much farther than tho alleged discovery of 18: It holds on to and re patents the triple compound acted upon by heat; and according to their present avowal, covers all kinds of heat applied to any composition of matter of which sulphur and rubber, without lead, may be component parts. (Mr Cutting bere road the epecification of the grant of 1849, page 13 ) It will be observed, that this isa very remark- able specification It contains a long esssy on rub- ber iu its natural state, aud is a sort of biography of Mr. Goodyear, and of his alleged exploits. I sail attention to its remarkable title, aftor which follows the natural history of rabber, and an account of the alleged exertions of Mr. Goodyear. It is the long- est, most diffuse, involved, and contradictory apvel- fication, that Iremember to have seen; and isad- mirably adapted to conscal, beneath a multitude of words, the extraordinary character of the claim. Even simple rubber, when exposed to heat, is within the invention, according to this grant of 1349. It the original patent, and over and above Queso, io the application of steam has been sinco discovered; and when it has since been found that otber degrees and kinds of heat may be wsued; when it has been found, that by the diezolution of water into steam, an cquivalent means was produced; then in 1849, and not before, they surrender their original grant. apply for a nei one, ‘end under pretext that itis the same as the old, it is with infinite wit so drawn that it may be deemed to claim, asit does in terms claim, *‘ the applica- tion of general heat to the curing of mbber.” Bat the learned gentlemen oppored now say they co not understand this new grant to be so large. It is more expedient, they thi sot to insist upon ® construction which would shock the sense of the Court and of the community. They moderate the claim to the application of dry heat to rubber mixed with sulphur, or with sulphur and any otber sab. stance. Bus ifthe presence of sulphur can bo de tected in any form, or by any process, in the shape of flour on gas of sulphur, they insist it fills withiz their grant, and they no longer coutine the to the use of the triple compound. If it be true that the gas or flour of sulphur, or eulpbur in some form, is indispeneable to the mapu- facture of a fabric of rubber—if you aseume that, and admit the construction of the now patent to be as charged by the other side, it isthe grant of a monopoly of the whole India rubber manufacturing business—it at once occupies the whole element of heat in any shape, or of any kind or description now known, or to be known. 1 defy the ingenvity of the gentlemen on the other side to suggest any improve- ment, for which any future patent can be granted by the Patent Office, which will not be an infringe- ment. Any process which employs, in any degree, the article of sulphur; or in which heat of any kind may be applied to rubber, will be an infringement upon this new patent. Surely if that be so, it is more extensive than the original invention of 1841. I have thus fatigued the Court with an cxamination of these patents at the request of my learned friend and associate, intending hereafter to submit some other points of law, that necesearily arise upon them, an@ for the purpose of drawing your Honor’s atten~ tion with more facility to the evidence. I will remark now, in regard to Hayward’e sul- phur patent, that, according to the teatimony, is is void for the want ot novelty; but, if otherwise, [ will contend that his patent, which is the superstruc- ture of the patent of 1444 for the triple compound. with his knowledge, using and selling it before application for a patent; and for the evidence this it is my duty to refer your Honors to the te Then, with regard to the patent of 1344, which is claimed to be the grant for the very of the triple compound, and for the app of hoat to because, v ious persons before it was } ar; and if that lacks validity, 2 was abandoned to the public, by him and by oth ‘e mony. triple como lack mainiog her or not wwiple com- have to dis year nlleges that be inve those questions of f at nee, and it will inv Mr. Hoyward nd Goodyear, the res of sulphur, how sulphur thout ony other ing of beiug ‘vales roduced in latter di r been in’ urpose of charact the pat atent of 1849, L submit, is void, f 15 a matter of legal constru r i i that can be gathered from rries with it elt that that and adds besides, tho applicatio ubber, or to idea that the act o' ieeuing the nt, is final en officer, w under a spoc'#l and limited no vity. The statute allowaa surrender and re-istu0 only, where the patent is inoperative or inv reason of a defective or insufficient dese the invention, or where, through inadverten mistake, it omits something which the patent point of fact, discovered. In eithor of these ttoxces, the Commissioner of Patents upon evidence as shall be satisfactory to him, and of 4, by. ich he is the sole judge, may correct the mistakes apete By foe ae Neithor of the old patent, and issue anew grant. Neithe of these ceses exist. Was there any ambiguity in expression,which rendered the patent of 1344 ipo rative or invalid? That will not be pretended. Tho patent of J844 is as much more distinguished for clearness of expession, and as much freer from embiguity than that of 1849, a the lightof tae sun is brighter than that reflected by the moon. The one is remarksble for its perspicuity and freedom from obscurity, the other seems to have been & most sedulous effort to obtain some indefinite, general, and intangible result. With that clear, dietiact patent of IS4 before me, I have never been able to rosist the conclusion, that there was more ingenuity, more effort, and more study expended upon the patent of 1849 to discover words to mystify and mislead, than Of actu! intelligences, ability, ane rososreb ip the 1 feel 4 | omission in the specification. e ten by Goodyear to Dr Jones, and which is the only evidence adduced b: the complaimant. On thi your Honors tee how signally they hav L— EXHWIT “ M, NO. 4.” Brainorixuy. Dec. 18, 1843. ‘Da. Thomas P. Jorzs :—Dear Sir—If itis not too late, will you pieage add to the specification as follows :—That = ‘Rot go particular about ; Laae: gon ata Rae ‘this place. Yours. respect- OHARLES GOODYEsR. Fepnvany 14, 1802. EXHIBIT “1, NO 5,” ON PART OF PLAINTIFF, C. W- NEWTON, EXAMINER. Wasnincror, Dec. 22, 1843. Crances Goopyran, Esq :—Dear Sir—I have your let- ter of the 18th im which you wish to have claimed “The heating Indis rubber. whether manufactured or not, in an oven or close room, with sulphur or sulpharous gas.” This I cannot put into the claim without first decaribing it ip the specification. which is not done so far Upmanufsctured gum is eoncerned; and without some explanation from you, I capnat understand it. By nrmanufsetured Indiu rubter, J should understand the bottles, or mseres as imported Are these to be heated and if 50, why? Have the goodpess to furnish mo with all the particulars. that I may insert the thing and+r- ftandingly. Will it not be proper to have it inserted aleo in the foreign patents? Iemember that any new Batter may be sent over there for monibs to come, Should you ree Mr Gay, please say to him that I have not a libe from cither of the parties proposing to obtain patents. Yon moy, at your convenlence, remit me & huutred dollars, on account of rervices, Yours very reepeettuliy, THOMAS P. J ‘On ibe back of the letter is written in black, blue, and ted ink the following :— * © Gums of 18th fs reed, cannot include the sulphur got. } Do. hesting unmanufactured gum } want further dercription.”” “ aie the marginis written, in 9 different hand, “ David sil? * Black ink. + Blue ink. { Red ink. This letter waa referred to by my learned friend and brother (Mr. Brady) in opening this case. The firet criticism that arives is, whether or vot the evi- dence in reference te the authenticity of this letter is satisfactory. I think it is not, because, while the means exists of establishing its genuineness in- disputadly, and when witnesses in battalions have been exsmined, and, amongst others, the brothers of Goodyear, and his agents and licensees, and others most femiliar with his handwriting, it was reserved for a member of the bar who never saw him write, and who had had bat a very slight acquaint- ance with him, by correspondence some years ago, and who is a partner of one of the counsel in this ease, to prove his handwriting, and even he admits that it does not look as the writing of Mr. Goodyear -usually does’ Then, I say there are reasonable doubts of the genuineness of the letter. (Hore Mr. Cutting read the testimony of Mr. Browne—‘‘Have you a partner in the business?” &e., &c.) He doos Dot pretend to exprees more than a belief in its au- thenticity, which he might well have entertained without being uble to prove it as g fact. But this was not an article of faith; it was aques- tion of knowledge; it wasa point for proof.- His belief as to its genuineness is one thing—the fac! another. Sueh is the slender character of the dence, Then, there is a postmark upon the letter, but no year can be decyphered; it is marked “Springtield, October,” so indistinctly as to be al tuvey at-eihia There it is, before your Honors, and I submit it ia nove istie singular that these | parties should have attempted w eo into proof, to | establish the authorship of Goodyear to tthe mecon tion by means of this letter; and while they were examining hosts of men—his partners, bis brothors, his near relatives, his licensees, thoso who hal sum- mere d wintered with him upon other matters ~ they sbould have scrupulously abstained frou a ing all or any of theee parties as to the handey of this Jetter; and that they shond have left the ci ot New York, Connectient, and Ma: homeand vicinage of Mr. Goodyear, inorder to cail upon Mr Browne, of ¥ ngton, for the purpoze of identifying bishandwriting, whonall that he waza! to say, was that it looked a tittle more ¢ramped than his ordinary signature, and yet ho believes it to he Goodyear’s haudwriting! (Mr. Cutting | Quest. 21, crogs-exam m, vol. 4, page 2 he believes it to be geauina, and there he Judge Grimn.—Have you any proof that it wos | not genuine? Mr. Van Wixkne.—He was only ox Honor, on the last dey of taking Here the court adjourned. 7. the ENT OF MR. CUTTING CONTINUED. Saturpay Morning, March 27, 1552. T yesterday remarked, that the evidence that hed | heen offered of the genuineness of Mr. Goodyesr's let- | ter to Dr. Jones, was of an execedingly slight ¢ | racter, and was certainly open to a good deal of | ticism; that it was very unsatisfactory and susp | cious that they should have suffered so many parties, | familiar with Mr. Goodycar’s writing, to leave the stand without proving that paper which constitutes their whole case upon this poiat, beyond a doubt. Your Honor asked, if we had any proof that it was not genuine. I began to reply, but I had not a mo- ment to observe, as the time for adjeurnment had | arrived, that the letters, notwithstanding these par- | ties had been so many months taking testimony, J | won't say was kept beck, but I will say that it was | not produced, until the last day of the examination of witnesses, when there wae no opportunity to call | witnesses on our side to reb tt their testimony. That | is the exact fact aboutit. As the last hour for tak- | ing proofs expired, that letter was produced, and | under the circumstances that have beca observed | But, even if your Honors could ina matter of so much importance, rely with confidence upon the an. thenticity of this letter, it lacks all the clemects that would be nece to make out an invention | on the part of G co extensive with the new patent—t i say, the invention of curing rub- ber mixe hur, or any of the gases of su phur, withou uns of heat—b cause it conta i of this alleged inp: to define any mode, which itexn be ca: bat, Dr ARG n to be en: eribe what larged. you tay you we you must sta Want: f yat letter which to deceribe bis invention, Goodyear s unanswered Goodyear had cluimed to baye ws upon j > th very OV lightin every I wil refer your Coodyear never the respects Now ion to thi aspect in which it can be regarded Honors to proof, that in point of fu | had produced any successful result i med. letter of Goodyear tthe lack of n the idea, ia to he be was, a3 carly procese; then I to the Jones, ia utterly ed patent in r Of this letter to Dr the thirteenth tion of the act of 2 @ re-iseue 'y in the onses men- : where the original specification is ine ¢, by reason of ambiguity, inadvertanco, ke, or accidental omiesion; and this lotterincon- , testibly shows that he was aware of how the speci- fication of 1844 was drawn. Uo knew exactly what it covered, to wit, the triple compound in eombina- | tion with heat It proves that befure the patent | bad ireued, ho had discevered that thore was an He wrote to Dr. Jones, expressly declaring that he had discovered more than was described in the specification. He saye:—‘'l have discovered that rubber, in combina- tion with sulphur alone, or with sulphur and its ses, may be cured by heat. I have diecovered that, and thorefcre 1 wish to amend the specifica- tion.” Dr, Jones wrote in answer:—If you want this alleged invention described in your specifica- tion, you must tell me how te do it,” 300, vol. 4, Defendant’s Printiag, Browne’s evidence.) The fact is thus established, that Goodyear, be- fore the irsue of the patent of 1 extent of the tion, and triple | compound to be subjected to hoat in an oven or clove room, and in that particular mode only. This | cessary to STOP Sores svete Same ‘ar eagtt be proves that the al! omiksion perso wes not Saaahieren Bot throagh net through inadvertence, not sbrough but throo; = —— intentional, ot 80 their and inadvertencies, it PEOHA bo ceing valanes to langnage, be in the statute, to say ®& patentee who in all ht, after he has brought actions upon hart] pet goods it, and monopolized the market for five years and 4 balf, he aime forward and claim s ro issue on the ground the omission was through inadvertance, mistake, or error. Such practice oug not to be tolerated. Tho limitations in the thirteenth section to cases of error or mistake, mean somet It is argued, however, that the mere fact of issue by the commissioner of the new patent, raises a prii facie presumption that there was an error or mistake 1m the original I am willing to concede the prioci- , that prima facie the action of the patent office granting a re-issue must be deemed to have been regular, and within the authority of the Commis- sioner of Patents. But still I insist if the patentees place before the Court evidence which rebuts the idea of an accidental omission, and shows that in point of fact the patentee knew of the alleged omis- sion at the time, and that it was left out a+ amatter of preference, or cheice, or negloct ; when these facts are elicited, then a case of want of authority in the commissioner is made out. The circumstance that Goodyear wilfully omitted to alter bis oviginal specification, must necessarily have been 60} sed and kept back from the Uom- missioner of Patente, because if it had been placed before him, it would have been just ground, acsor- ding to that thirteenth section for the refusal of the excluded gront. This Oourt eun legitimately say, that if the commissioner had had that knowledge at the time, he would not have granted a ro issue of the patent The suppression of the patentee of the facts within his owo knowledge, whon theso facts afterwards come to light, ought to deprive him of the right of enforcing & graut which ou ght never to have been made. One word more before J leave this letter. Itis al- leged that this gentleman claimed by this letter in 1643, an invention as broad aa the patent of 1349 But this language is, ‘‘ I claimas my improvement, the heating of India rubber, in an oven or close room, combined with gulphur or its gases.” That falls far short of any discovery for the application of beat generally. including steam, and manifestly ex- tended no further than the curing of rubber in a close verse! by means of atmospheric heat; so if that letter is to be treated as genuine, it proves, beyond all doubt, not only that the alleged omis- sion in the patent of 1844, was not aovidental, but that the real discovery did not go beyond that de- scribed in the specification of 1844. Icontend further, that this ro-iseued patent is also void upon its face, because it claims the ap- plication of heat generally to rubber or to rubber mixed with euiphur, or in the presenco of sulphur, or in the presence of any gas of sulphur. It seems to me that it iss patent not for any particular pré cessor mode of applying heat to any compoan butisa patent for the application of all kinds of beat in ail kinds of weys, to rubber, or where there is any connections no matter what it may be with, tulphur or its gases. If tho proposition be true, that a party ean take outa patent for heat gonoral- Jy when applied to rubber in combination, in any degree, or under sny condition or circumstances whatever, then I admit that this patent may not be wseailable upon this ground; but can it be that an alleged discovery of the effest of heat without deserting any mode of applying it, or any Pees or proportions, can mekea valid patent? If sucli a patent were put into the hands of a mechanie, of ordinary skiliin that branch, giving no other di- rections than generally to apply to rubber, or to vubber and ewpbur, could he perform the process? Such a patcntis clearly void. Lo assert the trary would be to insist that the mere abstract dis- covery of heat of any kind, in any form, whether atiuospheric or vapor, applied to rnbber ia the pre- sevce of sulphur, bo matter in what proportions or , 01 under what conditions witnous being re ‘ito any more practical shape or form, would constitute » pood and valid patent. Soke out of thienew patent every thing that ztaina to the triple compound, and there is stil! efta new claim for the epplication ef beat to rub- ber as » Without specifying any mode or process, & any direetions. This generat claim, J ir utterly void But if your honors ibave ther p ition to submit upon h ofthe case This patent not only pre- mode by which selphur and rubber, or erund the gas of sulpbur can bo valeazi ¢ 1 submit that ip point of fact, without the ad tion of lead, they canvet be cured. and nover have been cured xoas to produce a vendible commodity. I call upon the learned counsel on the other side to put their fingers upon a particle of evideveo which tends toshow that eny person ever did vul- canize rubber combined with the gas of sal- phur. ‘There ig not only no evidence that it can be vulcanized when thus united, but on the contrary, the witnesses show that it cannot be vulcanized by the admixture of sulphur itself into the robber in any proportions that would make a merchantable fabric. It is possible that a large and extreordinary proportion of sulphur combined with rubber might be vulcanized so as to produce the appearance of a vendible article; but it would be utterly valueless and unfit for use. Upon this int J refer to the evidence of David McCurdy, and will read but a very short passage, observing that he ia a witness in the employment of the New Jersey factory, conducted by Hutchinson & Runyon, sub- étantially plaintifis in this case. (Vol. 2, Defend- ant’s Prioting. p. 107, q 58 to62) The part of the evidence was then read:— 58, Whose patent or patonts had you and the Newark India Rubber Company been working under, if auy, Brigge your trial or experiment of the use of steam to curd¥ubber goods? A. Gocdyesr’s patent of 1844. 69 Tlow were the goods of H, & K. and thove of N. 1. R. Oo. stamped, in reference to #ny patent. if stamped at all? A. They were stamped Goodyear’s Patent of 1844; that wes all the stamp Tever seen on thelr manufacture, I have seen etampe on other goods, 60. Have you expert ment with referen rubber goods. would eure in ate the of > time y the ow ! A, Yeo; L have trie Before that, I have never fou in» heated phere, bu rubber in combivation, 61. How is it in curing In steam ? very good arth stefan. or uni heated atmosphere ; and me experiments made before ivg in steam. as you haye at many expert anythin, at would ad or licharge, sulphur and A. We can make a pher, by curing in jead. providing you use steam to cure it in. r The counsel Jackson (vol. 4 of the oppe Vo you cone d from evidence of Mr 8 Printing, p 179) one ombination with rubber. ae. successful raanufecture of | Rubber, when curd ina bevied a 1 About what time was it fi ni at piber and id vuleant Giticn of Jead. wo Ewer that: it wos patented thet we only knew Ua n 1Sa7 oF 1848, 1 to the testimony of Mr. Harlow use of | and sulphe 4, will such a p Ang, I think it t e? Ans. I think not. 223. Have you eny doubt on tbla question? will Gepend on what kind of cloth this compound on. Whether on cloth that has rubber on it or c put it into this heated atmorphere metal, wood, ¢r any other substance ort the sheet of compound. then w ences answer the last preceding question? It will not heat. placed upon metal or wood, and A. meny other articles that might be eapable of supporting veh ® sheet, but that {t would heat if placed vpon an article to pupport it whieh was made of a vulcanized compound. if that article hed-not been heated vefore. 226 Where oid you get this idea from! A. Tlearn- cd it by experience, 220, Suppore this compound was made into rubbor goods, a# Vuleavizved rubber goods are ordinarily made, und supporo in euch state this compound of rubber and tulphur was exponed in the heated atmorphoro, would, or would not, the article thus made vulcanize? A. If T understand the question, it would not, 277, Pleare state how you understand the question ? A. Tusdertand you to ray. if compound ot rubber and rulphur, alone, wae spread upon cloth that had no rub- ‘ber on it, and ther made up into rubber conts and articles in the same way in which we make up coate and ther articlee from. vulcanized and put inte an to 5 oven heated Me gee fy Las a ini Maly these goods eat made of rubber af ur alone The 2 dcfendont says that this is what he meant by thin nmewicre caves they ‘owhot articles compounded to make | heir confidential man. He says (4th vol Defend- page 119. q 9, folin 19), &e , and to her portions of the exse:— 9. From September 1648. until January 1944. state all the materiale which you raw Hayward or any other par- son combine and mix with rubber, aod give the proportions of each, with » given quantity of rubber, and answer thie question fully! Answer. The materials were rubber, white lead. sulphur. and lampblack, to 26 Ibs of rubber ; 8 Ibs of lead. and 6 ibs of sulphur, andiamp- Mesh peane® to black it; I can’t recollect the quantity 10. Have you now answered the preeeding question as fuly 04 300 can" Anaer T have. ba 11. Do you wish to be understood as testifying that of yang own knowledge, no othes materials were weed in Wat establichment in Preparation of the rubber, to manu- een satan, Mmxany the time you have testified about ? Answer. I do. 12. Was any linseed cil or varnish used? Answer. I never knew that there was. 18, Do_you mean to testify there was not Answer, T never thought ofany sueh thing. at question newer Not to x; . nities ¢ building, ee te, (Answer objected to, snd the came repeated ) of kmowiedge? A. I and never saw any thing |... 16. You have stated lead, pi aap > worth patage black ; will you reflect, and after reflection, ans- wer if there were any other exo pting eloth, used in the mcaufacture of goods, in establishment ? Anewer. There was not up to thut time, meaning January, 1644, 17. Was not spirite of turpentine used daily in that establiehment, in a}! their goods? Answer. It was, most 18, Are you & stoc! \der in Newark, or any India rub- Der company. or have you been at any time? Answer. Tam not, and never was a stockholder, 19. From the time you commenced, until Hayward left, was Charles Goodyear accustomed to visit Candee’s factory, and was he interested in any way in the busi- nees. process, or factory ? Answer. I think Charles Good- ear Was there once or twice during that time. I mever or knew that he had any interest there. Before jeaving Cancee’s establishment, did they sue- ceed in making valoanised rubber. successfully without the use of lead or litharge? if yea state what they made, who made it, and under whose direction it was made. Anewer. No, sir, they did not. Was or not. it generally understood. and was it not the resuls of oll yoor experim: nts that lead and iitharge prove to be a necessary ingredient to cause the ruvber to become Vuleanized whex combined with the other things before you left Candee’s ectabliehment ? If you answer no, then state particoiarly how you arrived at the con- trary opinion, xeon whose suggestion, aud what was the article mado, and what quanticy ofit, and who made it. Anewer, It was, All those numerous witnesses show that unti) 1846, three yesrs after the letter of December, 1843, Goodyear was ignorant of any process by which this result could be producad, withont the use of lead; that ie the reason why, whea Dr. Jones requested him to deserihe bia invention, he nevor did sstempt it, and we have it from his own lips, that ia 1844 ho was not aware of the process; aud he did not know it in 146, for after this time he admitted frankly to the witness, Gilbort, that unless there was lead or litharge used in the compound, it could not be vulcanized. It strikes me that the evidence is very cogent upon this point. One of my learned friends on the other side made the observation, while my associate was arguing, that there were more than a cozon witnesses contradicting the pro- positios, that sulphar and rabber, without lead, could not valcenize, snd they promised to supply us with a Jist of the pames of this dozen. Thus far this promise is uperformed. I infer from that that tho Teference cannot be made. Mr. Wrrster—The practicability of making good yuleanized rubber by the uso of rubber and sulphar alone, ean be exbibited in this court at any time Mr Curring—I must differ with wy very distin- guished opponent, but I must say that I know of nothing so deceptive, nothing so diffienlt of detec- tion, a8 what ke proposes. J have seen experiments made in court before I have tried cases where the mort perfect exhibitions were used in open court, during the heat and bustle of a trial, wore successful, not elsewhere to be accomplished. Mr. Wensten—‘We do not press it, sir.” Why, the eccret application of a wet rag, satu- rated with lead, to sulphur and rubber, might make a difference in the result; the least alteration in proportions makes a difference. You might possibly produce, without lead, what would Jook like a useful article of vuloanized rub- ber; but it would be utterly valueless. When, therefore, in default of witneases, it is now proposed to supply defect of proofs, by practical experiments which may mislead, we object to a departure from the case made by the witnesses. Ihave objected that the new Nope covers all heat above solar, whether produced by the combus- tion of the atmosphere, or by the evaporation of water, or by infusion into boiling acids, or any other application of beat, by which rubber is cured; I have shown that the plaintiff has proved affirmative- ly, by the letter he wrote to Dr. Jones, that his mode of curing sulphur and rubbér, was by means of heating it in on oven, or close vessel. If his pa- tent ia 1544 had been taken out in just the words in which he then asserted his claim, it would have been for the process of curing rubber in an oven or close rai by atmospheric heat, and for nothing more ‘This would nov have embraced the curing of rubber by means of snother agent—l meau steaw 3 beeauso the chemical results from the application of steam are cntirely different from thoze produced by atmospheric beat. The che 1 agents are dif- foxent. Sulphur ond rubber, without lead, can be cured by the application of steam, but it cannot be done by atmospheric heat. MNydrogen, in combioa- tion with steam, seems to operate beneficially upon the compound. if, then, the new patent covers all forms or kinds of beat, and thet is broader than the diecovery in 1543, it must be void. The evi- dence shows tbat Goodyear was ignorant of the use of steam in 1843 ; and knew nothing of it until in- formed by cthers, after his patent was taken out. He at that time admitted that the use of steam was not an infringement of his patent. I refer, upon that point, to the testimony of David McCurdy, (2d vol. of defendant’s printing, page 406, questions 54 to 56) — State, so fer as you know, when steam was first found in this country, to be useful for curing rubber goods, either hy heating the atmosphere of the cylinder, or by curing the goods in the steam itself? Answer. As near as I can recolieet, the latter purt of 1846, or early in 1847, when I first got acquainted with it. By whose advice and direction. and for whoa. if any one, did you then first try it? Apnewer. Thad no advice nor direction to at first. but hsd heard a report—I don’t know from whom—that steam could be used for that purpose ; aad went on and tried it ; and theu eubmitted it to the Presi- dept of the Newark India Rubber Company, which I was working for at that time. State, if you know, whether or not the use of steam at the time yet! so tried it. was a now thing in curing rubber | in this cCuntry ? (Objected to, as the witness has stated that he had no knowledge of it before, exoept from hear- ray) Answer. I believed it to be a new thing at that | time; snuthe men in the factory. so far as I was ac- | quainted, considered it such and admired it. Also to the evidence of Charles J. Gilbert, (vol. | 2, defendants printing, pages 91-2, questions 11 to 19), And to that of Henry A. Alden, he says, ¢ 269 and 271, plaintifi’s prinung, quests. 39 , rend) ¢ 11, Was Charlee Goodyear aware of the defects goods, thet you have specified i | other members of the compa and what did he r | pie fully ? z | | th him abont it ; elation thereto ; was aware of tions to the goods, v rnment and others. (we were manufne chiefly for the jgovern- | ment.) f had frequent convereations with him at the fue tory ar to jmp: ovementes to remedy the evil. expecially | | With reference to the oven for heating, the u ih | for cleansing, ond the substitution of the | ente besides lend, or in conneerion with } | | ; it was au experimental bosiners time. ite said b doubts whether the use oa the eurfa | goode not incor 1 compound, would B J not become well to ty wood. Tdi steam boil that the use of ot with bis paten’s, her ingredient then lea tamale by workmen in the fac cr cliff ground to an impalpable po Yend—but only extent. The t eomp 1 of heating by Foxes’ Furnace yanyibing andifso, what, | voutor of curing rab was the inveator of not the inventor. that | ber goods by steam or as. tc that? Answer Yox, hersid he w Mr. iii resident of Nevgutuek claimed the inven- | Uon, and he theught was entiti do it; suosequen'ly he | rent Mr. Tillou to me, et my office, in N ork. with his popers to aid him in obtaining a patent, but at that thas Lhad seen a published statement of the use of steam in Fngland. for curing India rubber, and did not proceed to epply for a patent. 19, When did Charles Goodyear make the statement mentioned in your last answer! An- swer In Cctober or November. 1446 14, At what was | the Nir. Tilov, to whom you have referred, at that time engoged? Answer I enpposed he was a small farmer at thet Lime. 15, How tong after that statement of Good. year did he vend ‘Pillow to you! Answer Within throo imontha: it wight have been two. 16. Who was to have the patent for that supposed invention of Mr. Tillou’? Apsver T con't know; I don’t know of any arran) ment between Mr, Geodyear and Mr. Tillow, 17. bid you haveeny converration with Mr Goodyear about that time, as to the publication of the use of steam to cure rubber, which you have mentioned” Avswer, I told Mr, T thought we had better not appl for a patent, rohably would mot be successful. from the fact Pad been ured in England, and in this country; his re 18. Did you have avy conversa- ar, as 4 Whether or not he knew cured, of that it could be cured without with lead or lit endif ro, when was ” Answer. Y 4 such converration # A thet Dr. Lowa, at bis (Goodyear’s) request, been ‘olera uly success- fat in curing Indic rubber without ¢p» a¢mixture; this converration was in October. 1846: mitaequently, on re- ferring to the subject ho oodyeur pal ‘ho was atiofied, that RE pense je to cure Indie rubber with- ul out the use of lead iphur, and that these experl- SBele’ of De, Hows weee tos a itn a warrant the nce of the use of lead and sul- phir, At Coadvear's recnest, Tabtatnad a mate! heat a witness have ar told = produced on the other tide, ed for a lo . r. Gilbert that he-had heat any form, in any mode, atm Vapor, steam, acid, 0 matter what; that te ia the author of the whole general tion of the principle of heat to the curing of rubber, with or without lead. ‘These pretensions cannot be tained: In 1844, when Goodyear applied for a patent, the curing of rabber, so as to make mer- chantable y boiling in hot acids at ‘above * 212% of heat, was a process well known and used. I will give the Court a few references to the evidenee, to show that that process of ci goods was ex- teaaeey known and practised prior to 1837 ang ‘Armstrong's Evidence, (vol.. 4, defendant’¢ printing, page 48, questions 149 to 122). 109, Before Goodyear came to your establishment, had yous man in the company’s employ by the name of Nash 3 and if s0,what Nash? an-wer, We @ manin ous employ by the name of Jobn ¥, Nash. 110 Do you recollect of way ivveation or discovery pb; said Nash, about 1837 or °48, of a mode of curing or vul- eanizing rubber? if yea. sta‘e avy circumstanees connec. ted therewlth. Answer. At th» time Charles Goodyear Was at_ the factory, experimwn'ing, Goodyear was trying experiments to coz India rabaor goods with acids, "His Frovess was with cold acids, Hw dd not meet with good success. and he did pot cure bis goods perfectly, Mr. Nas took some acids. and heat ?b- acids io a kettie, and cured the goods perfectly, and claimed the discovery of curing 3 with heated avid 111, About how high did Nosh beat these acids wher the rubber was put iuto to cure st; aad whether or not it was boiling the seids and what *iad of acids? _Anewer. Idon't_ know that T sav the operation of curing these goods; I know the facts fom Mr Nash and Mz. toodyear. 112, State how you came to kuow the facta from Mr. Nash and Mr. Goodyesr Answer, There was some die eulty between Mr Nach ana Mr Goodyear Mr. Nash claimed the discovery, as his, ond Mr. Goodynar also claimed it, on the ground \be! Mr Nash was in his em- ploy; and they came into the office and referred the mat- ter tome torettle the differences between them; I de- clined doing any thing about 1t. and told them they had better arrange tbeir own matiers 113, Previous to their coming in company to yon, had Mr. Nach communicated to you. and hoy, any thing on the subject? Answer. Mr Nash came into the efco. and brought me a pieec of rubber, saying. he had discovered the bird to cure India rubber. or words to that effect; he showed me a piece he sald be bad cured. . 114, Whether or not that piece so alleged to be cured by Nash wos different from avy thing you had previously feenofMr. Goodycar's? Avswer the piece akowa me at the time was boiter than any thing we bad scen of the kind, 146. Whether or not. at the time Goodyear and Nash appealed to you, Goodyear admitted that the discovery was Nash's or Goodyear-? Aus. Goodyear claimed the discovery, on the grourd that Nash was in his employ ; this is as nest aa I recollect ut this time. 116. You mean then that Goodyear did admit that Nash was the discoverer. but claimed that it belonged te Good- herd because Nash was in bix employ? Ans, { mean that e claimed it en the ground that Nash was in his em- ploy. 117. Did Goodyear at that time, then and there, claim that he, Goodyear. was the first discoverer of the heated acids. independent of the que-tion of employ ? (Objected to by plaintiff's counsel a3 contradictory to previous antwer.) Ans. He clawed it on the ground that Nash was in hia employ; I did not bear him cluim it on any other ground. 118. Whether or no. in that conversation, or previous thereto, any thing was raid by Na-h about his taking out a patent for such heating cf acids for curipg rubber ? Ans. When Nash showed me tbe piece of he had cured witb hot acide, be mentioned something about patenting his discovery; Goodyear was not present at that time. 119. I mean to ark about patenting by Nae! zu whether anything was said atthe time that he and Good- year appesied to you to Fe tie for them their difference ? Ans. @ diflerenoe between the parties whieh they did submit tome, and wished me to settle, was, which was entitled to the patent for the dircovery. 120. Do you mean which was enutled to take out the Patent, or what? Ans, Whit I understood oy it was, whether Mr. Nash was enticed to the patent or not. i21. What king of goods, and how were they eured, did Goodyear make after this dissovery of Nagh’s? Ans. ° | Ue made various kind- o' gouds, and cured them with hot scids 28a general thing. 122. Did he put'thee goods into the market and sell ‘hem orwashe mery exprinesting to vee what he could moke? Ans, They were iu the marge}, aud sold n the market, some of them wee Cutter, (vol. 3, defeadant’s priating, page Harlow’s Testimony, (vol: 4, defendant's printing, page 257). He was a witness exammed by tue plaintiff. The new patent claims that Goodyear, before 1844, waa the discoverer of the means of curing rub- ber by heat, whether by atmospheric heat, or by boiling in hot water or acids. The evidence establishes, that as respects the curing in boiling water, or in boiling aeids, the dis- covery was made by Mr. Nash, and that he commu nicatedit to Goodyear. It was after this comm nication that Goodyear described hisinventionto be ® process of curing the goods in a close vessel, by applying atmospheric heat. . How is it, then, that a man who claimed s0 little in 1844, ehould pretend, in 1849, tosomuch? The mystery ia unravellod, when the facts are disclosed that he has sold out his rights to numerous specu- Jators, who made him covenant to surrender his original patent, and to apply for a new one, if coun- sel should so advise. He had remained perfeotly satisfied, down to the Ist of July, 1848. Ho knew what his improvement was He had declined to extend it, when invited so to do by Dr. Jones. Hv had openly admitted that be was neither a patentee of the application of steam nor of boiling acids. He claimed werely the process of heating in an oven. But at this period be had sold out his rights, and itis these men who required that ho should amend his patent, ‘under the advice of counsel.” He shortly after surrendered it. In ‘less than one year from the dute of his agreement with them, proceedings had been commenced, in tho Patent @ffice, for a better and more extensive monopoly. In 1849 it was accomplished nominally hy Goodyear, but in fact by others engaged. in the business of manufscturing rubber, who elova- ted Jom as a discoverer to a point high enough to cover and protect the whole extent of India rubber manufactures. If the contrivance stands, it will be utterly impoesible, until the lapse of a Jong series of years, to make any improvement without inter- ferng with the claims now set up; it isa patent which at once and completely occupies tho whole ground, 2nd prevents ail imprevement. This is a grout and giave question for the community. I ad- mit that the real and honest discoveries of men of ingenuity and. intcligence ought to be protected and cherished, sud nursed by courts of justice. They are actors of mankind; but at the samo | tone, it isin van to deny that the statute which authorees the surrender and re issue of patents, pens & very e door to frands, and that when here ie a polpabdle difference between the new and the ld patent, and upon investigation, it appoars wl invention wus only to a limited extent, less than that covered by the reissued patent. ‘such a grant, obtained, ia fast, yr s bot one of whom pretends to any morit 28 # discove by purchasers bt not, by ent counsel in f d or countenanced For theee reasous, I reepectfully subinit that this jAtent of ISD is utterly void, _Theve now sremark to mate upon auotherpoint. Tr a Want of proper parties to Uns case Pais question arises from the effect or Bxhibis O, which is A specimen of the atber assignments thab hare been made by Mr. Goodyear ofother branches of the manufacture of India rubber, to varioys parties. It is contended on the ocher side that there iastraments are mere licences, and did not render the parties to them incompetent wiitnesses, much less did they mako them neceseary parties to the suit, nudthat a full and perfect decree could be made without bring- ing them before the Court. The bili calls Mr. Day town nceount for having infringed upon the com- plainant’s righte, by the manufacture of boots and Fhocs, snd of various otker articles, and prays that he may be compelied to pay the profits upon them to Charlee Goodyear. It apy that before the commencement of this euit, tr Goodyear sold and assigned to other parties the exclusive rightto ma- wulociure these articles, and that all the damages that can, be recovered in any suit belongs to them, and not to Mr. Goodyear, cong oeatly; ho is not entitled to maintain this cuit. This state of facte presente @ question that my learned friends, perhaps, will buve no difficulty in onswering. Can the as- signor of ht in action, or of a demand which be has absolutely omeigued to anothor, maintain an action in a Court of Chan in his own name, he having no beneficial intereet in the rosult of the action, not being a trustee by virtuo of any trust 7 Can euch a bill as that be maintained ? Mr. Brapy hore inquired if the assignees could sue. Mr. Courtine replied, my objootion is, that Mi Goodyear cannot maintain ng botloa:” Whonever the other pargies rue, I will then considor whether’ they ean maintain the action. Tho question 1a, not whether they, but whether Charlea Goodlyor t Woe th rioht Penn (Me Muttine Bees raat thy oe