The claim of the patent, read in the light of the specification attached, seeks to secure to the pat-entees any mixture capable of being applied as a paint, in which oxide of copper is an ingredient. The patent is not for a process, but for a compound which the patentees claim as their own discovery. In this compound, two elements, and no others, are described as essential. There must be oxide of copper in the compound, and there must be a vehicle which will permit it to be applied to surfaces, after the manner of applying paints. It is not pretended that any new property of oxide of copper is developed, or brought into action, by this manner of using it, nor does the compound itself produce any effect not before known. All the benefit derived from the use of the compound arises from the poisonous effect of oxide of copper — an effect long well known. So understood, the patent is invalid. It discloses no discovery to be rewarded. Oxide of copper, and its poisonous effects, have long been known. Compounds capable of being applied to surfaces, in order to protect the same, are in universal use; and there was nothing new in the idea that oxide of copper could in this way be applied to surfaces.
The efforts of the patentees have been, to secure the sole right to use oxide of copper in any form which renders it capable of being applied to surfaces after the manner of applying paint. A monopoly of the use of a well known substance, in a particular but well known form, cannot be thus secured. Strychnine will poison dogs, and some one may yet discover that it can also be used to poison the worms of the sea; but that will not entitle the discoverer to an exclusive property in all mixtures which contain strychnine, and are capable of being spread on surfaces.
Furthermore, it appears, that, in 1849, pri- or to the plaintiffs’ patent, Dr. Ure gave, in his Dictionary, a description of a metallic pigment, to be made with pure oxide of copper, which description would enable any one skilled in the art to make a compound similar, in all respects, to, and having the same qualities as, the compound described in this patent. This being so, the subject matter of this reissue, if it be patentable, cannot be secured to the plaintiffs, because it is not new.
A further objection taken to this reissue is, that the subject matter of it is not to be found in the original patent. To this one answer made is, that, under the patent act of 1870, it is not necessary, in the case of a chemical invention, that the subject matter of the reissue should be found described in the original patent; that it is sufficient if proof be made that the subject matter of the reissue was, in fact, part of the original invention; and that the grant of the reissue is decisive that proof was furnished. My opinion upon other branches of the case having been expressed, I deem it unnecessary to notice this objection to the patent in question, further than to say, that I am of the opinion that no such effect can be given to the act of 1870 as the plaintiffs claim, but that, in the ease of a chemical patent reissued, it is necessary to its validity, that the subject matter be found described in the original patent. •
The motion for an injunction is denied.