The only matter in controversy in this case is, which of the parties was the first and original inventor of the improved invention of the breast pump, which invention, as stated by the Commis
To this decision there were thirteen reasons of appeal filed to apply to all the separate parts of the'decision, in which the Commissioner draws his inferences, deductions, or conclusions from the different parts of the appellant’s testimony as erroneous.
The Commissioner in his report, after stating his views in relation to the testimony on the part of Lewis in support of his claim, states, on the part of Davidson, the substance of the testimony of Haughton, Curtis, Babcock, and Davidson, and says the evidence so far is distinct and clear to Davidson’s completing his invention in idea in July or August, 1857, and the manufacture of samples on the 1st of January, 1858. And were the evidence to rest here, the case would be plain; but Davidson brings forward other parties to show that early in October, 1856, he was engaged in perfecting his idea, and that it-was complete and made on the last of June, 1857. [The Commissioner’s statement of the testimony follows, and his report concludes.] “It is believed, therefore, on a close examination of the testimony, that'the
This report was adopted and confirmed by the Commissioner 6th of August, 1858.
In this state of the case, (due notice of the time and place of hearing this appeal having been first given,) the Commissioner caused to be laid before me his report, with the decision and reasons of appeal, together with the evidence and all the original papers; and the parties hereto by their respective attorneys appeared and filed their arguments in writing, and therewith submitted the case.
It will be observed that the only question , involved in the issue between the parties in this .case is “priority of invention” — to which of the parties, from the evidence in the case, it ought to be awarded. The consideration of the case will be relieved of much of the apparent difficulty in duly appreciating the application of the testimony to the precise question, by not mixing and confounding what is the invention with the mere mechanical part of the machine, and by inverting the order in which the testimony has been taken up by the Commissioner, beginning with the witnesses who testify to a knowledge of the earliest period at which there were manifestations of the discovery or invention. It must be borne in mind that it is not so much he who made and perfected the first machine or instrument as he who may appear from the evidence to have been the first who conceived the idea, and so described it by words or drawings as to have been sufficient
I have stated the testimony of Burdick, Brewer, and Essex more at large than the Commissioner, from which it will appear that the Commissioner, in his statement, has inadvertently omitted several facts contained in that testimony which, according to the view which I have taken of this case, are considered very material. The first which will be noticed is Burdick’s. He says, in the interview which he had with Davidson in 1856, Davidson exhibited to him ‘ ‘ a plan of something he had got drawn out, and explained it to him;” that he afterwards marked it out on the counter. The description witness gives of this thing, in all the essential features, corresponds with the invention as shown in the machine of the 1st of January, 1858. The Commissioner omits also to state another fact in Essex’s testimony, who says that ‘‘in his first interview with Davidson, which was in October, 1856, he [Davidson] told me [Essex] that he was getting up a breast pump and nipple shell, and he went on and gave a description of it,” which this witness recites in more precise terms than Burdick, and at the time showed him a plan of it on paper and explained it. This is confirmatory of Burdick, and appears to me to be a perfect description of the invention in the present controversy. Here, then, are two witnesses agreeing substantially in description and drawings of the thing as having been discovered by Davidson in the month of October, 1856. If they are to be believed, Davidson’s claim as to the question of priority, even if it be admitted that he failed in his experiments to construct
It appears that the ground upon which the testimony of Burdick, Essex, and Brewer has been thrown out of the case as inapplicable is not because of any material variance as to the descriptions and drawings of an instrument in accordance with the principles of the invention in this case, plainly showing the purpose, object, and device of the inventor, but because of conflictions as to certain specimens of the mechanical instrument made in June, 1857 — the one which Burdick received not being (to use his own language) “ the exact instrument, but so like it that a general description would embrace both varieties.” The Commissioner seems to confound the idea of the invention itself -with the mere mechanical machine or instrument. Suppose it be true, as stated by the Commissioner, it would not be a sufficient objection to defeat the appellant’s claim to priority of invention. The rule of patent law applicable to this point is stated in Curtis on Patents, 355, referring to Reed v. Cutter, 1 Story’s Rep., 599: “As to the case of two independent inventors, ,* * * it will be a good defense to an action upon such a patent [to the subsequent inventor] if it can be shown that the same thing was first invented by another, although not actually perfected, provided the first inventor was at the time using reasonable diligence in adapting and perfecting the thing invented. It thus gives full
But, in point of fact, has there not been more weight allowed to the circumstances supposed to show inconsistencies than they are entitled to ? In the absence of corruption, áre they not, according to the humane principles of law on this branch of evidence, to be reconciled without imputing improper motives? If so, it ought to be done, rather than to entirely overthrow the direct testimony of at least two witnesses to the same point of fact, neither of whose general character for veracity has been questioned. The witnesses whose testimony is supposed to show it are Haughton, Curtis, H. E. Davidson, and Babcock, of Davidson’s own witnesses, and Slocum, one of Lewis’ witnesses. They all show that Davidson was industriously laboring to construct an instrument that would be suitably adapted to the invention, and it is admitted by all that he at length succeeded. That he had in a short time after October, 1856, undertaken himself from time to time to construct an instrument adapted to his improvement, must be considered an undeniable fact. Babcock proves his determination as early as December, 1856, and in April, succeeding, he had made a drill for him and assisted him to make a hole in a shell. Mrs.' Curtis says she assisted him in June in boring a hole, &c. It must be remarked as to her testimony, also, that it has not been stated correctly. It is truly stated that she says “ he did not succeedbut that is not all; she says he said “that he did not succeed as he wished. ” He did succeed, she says, in boring the
Thus, it seems to me that the proof is undeniably conclusive as to the fact of the description, both orally and by drawing's, in October, 1856, of the invention in all its details, and the further fact of the diligent working and experimenting by Davidson in endeavoring to perfect an instrument adapted to his improved invention until January, 1858, when, as before said, it is admitted by all he succeeded in presenting a perfect instrument. The principal matter which seems to be relied on as showing the inconsistencies stated as the ground of the rejection is in relation to the two specimen breast pumps, the one of which was given to Essex and the other sent to Burdick at New York, and by him received, as he says, some time in July, 1857. The proof relied on to sustain the allegation is the testimony of Slocum, who says that Davidson, in the summer of 1857, (he cannot state the particular time,) brought with him to the glass house of the Bay State Glass Company an article (similar to what he wanted made) of sheet-copper — one side of it was oval and one was flat — about the size of a nipple shell, and much the same shape; and witness thinks he also had an article of a similar shape, with a groove turned round the edge made out of wood. He thinks Davidson said he was going to have a valve at the top of it— either top or side, he is not certain which. His impression was that he was going to get up a breast pump. Witness’ impression is that he (Davidson) told him (witness) that it was very doubtful •whether they could at all valve the article he wanted made in the way he proposed from glass,, so as to make it useful. There
As to the inference drawn from Davidson’s omitting to state to his brother the whole of his plan, it is equally untenable. It
I think, therefore, that the testimony amounts to satisfactory proof that the said appellant Davidson was the first and original inventor of the invention in issue in this case; that priority ought to have been awarded to him, and that a patent ought to issue accordingly.