in an elaborate opinion by KANE, District Judge, held that the invention having been in use six years before Batten claimed it as his, had become public; and that having become public, he could not reclaim it by his patent of 1849; that the- sections of the act of congress above quoted did not help his case; that the patentee under them might make his specification more ac*1032curate, or restrict tlie limits of his claim, but that his re-issued patent, taking the place of the one he had surrendered, could only be for the same invention. The invention of the part being very ingenious, the court reluctantly entered an order of
[NOTE. Upon the new trial the defendant had judgment. This was reversed by the supreme court in Battin v. Taggert. 17 How. (58 U. S.l 77. Mr. Justice McLean, in the course of his opinion, said: “The plaintiff, by a surrender of that patent, and the procurement of the patent of 1849, with amended specifications, abandoned his first patent, and relied wholly on the one reissued. The claim and specifications in this patent, as amendatory of the first, were within the 13th section of the act of 1836. It is said with e'ntire accuracy in the charge, in regard to the amended specification of the patent of 1849, that it ‘described essentially the same machine as the former one did. but claimed, as the thing invented, the breaking apparatus only.’ And this the patentee had a right to do. He had a right to restrict or enlarge his claim, so as to give it validity, and to effectuate his invention. * * * It was the right of the jury to determine from the facts in the case whether the specifications, including the claim, were so precise as to enable any person skilled in the structure of machines to make the one described. This the statute requires, and of this the jury are to judge. The jury are also to judge of the novelty of the invention. and whether the renewed patent is for the same invention as the original patent; and they are to determine whether the invention has been abandoned to the public. There are other questions of fact which come within the province of a jury, such as the identity of the machine used by the defendant with that of the plaintiff’s, or whether they have been constructed and act on the same principle.” [For another case involving this patent, see Batten v. Silliman, Case No. 1.106.]New trial granted.