Letters-patent were granted to Nathaniel Waterman on the 12th of May, 18G3, for an invention consisting of an improved table-tray, or waiter, as fully described in the specification, and the record shows that the original letters-patent were subsequently surrendered and reissued as alleged in the bill of complaint, and that the complainant is the sole owner of the described invention, as secured in the reissued patent on which the suit is founded. Discussion of the title of the complainant is unnecessary, as it was not controverted in argument, nor is it necessary to refer with much particularity to any other of the allegations of the bill of complaint, ex*828cept to say that the respondent is formally charged with infringing the patented invention, and that the complainant prays for an account and for an injunction. Various de-fences are set up in the answer, of which the following are the only ones which require to he noticed:—
1. That the invention is not patentable.
2. That the person named in the original patent as the patentee was not the original and first inventor of the improvement.
3. That the reissued letters-patent were fraudulently obtained in violation of the rights of the respondent, and that the patent as reissued “covers more than was contained” in the original patent
Obviously the first two defences involve mere questions of fact, which in view of the record, do not require much discussion. Such an improvement, in order that it may be patentable, must be new and useful; but if it be useful even in a small degree, it is not usual for the court to reverse the decision of the patent office in that regard. Applying that rule to the case, the court is of the opinion that the first defence is not sustained, as the new form of the device may be quite convenient in the use for which it is designed; no direct proof having been introduced to support the allegations of the answer. Curt. Pat. § 2d; Lowell v. Lewis [Case No. 8,568].
In examining the second question it must be assumed that the invention described in the reissued patent is the same as that secured by the original patent, especially as the original patent is not given in evidence by either party. Tested by that rule, it is quite clear that the second defence must also be overruled for two reasons:—
■ 1, Because the letters-patent set forth in the bill of complaint afford a prima facie presumption that the original patentee was the original and first inventor of what is therein described as his improvement.
2. Because the proofs introduced by the respondent to overcome that presumption, and to prove the allegation of the answer, are wholly insufficient for that purpose.
Attempt was made to show that the Seller device is of prior date; but it will be sufii-cient'to say that the proofs are not sufficient to support the proposition. Enough has already been remarked to show that the third defence cannot be sustained, as there is no proof to sustain the charge of fraud; and the second ground assumed is not open to the respondent in this case, as the original letters-patent were not introduced in evidence. Whenever a party desires to set up the de-fence that a reissued patent is not for the same invention as the original, he must introduce the latter in evidence, as the question is one of law, depending upon the comparison of the two instruments. Seymour v. Osborne, 11 Wall. [78 U. S.] 540. Consequently the third defence must also be overruled, and the complainant is entitled to a decree for account, and for an injunction.