Part 7

"It was a conviction of the inefficiency of the machine that led the applicant to make his invention of 1847, which, by a modification of pre-existing elements, provided an advantageous location for the raker's seat. Upon this his fame as an inventor rests, and to this is his reaper indebted for the triumphs it has achieved. This seat had been previously known in at least nine patented reapers; but it had not been well placed, and an appropriate location for it was, up to 1847, an acknowledged desideratum. Whatever, however, may have been the value or the success of the reaper as improved in 1847, such value or success can exert no influence in determining the issue under discussion."

The Commissioner further said, referring to the 1847 patent:

"Without the parts thus slowly accumulated and combined, and which have been so unhesitatingly appropriated by himself, his own invention would have been as valueless as would be a shingle to him who could find no house-top on which to nail it. The construction insisted on would compel the public to pay again, and pay extravagantly, for that which is already its own, alike by purchase and by long uninterrupted possession."

The authorities cited make it clear the Hussey reaper was successful, from the start, but the Patent Office did not seem to think that the machine of his opponent for honors was so.

The Commissioner in his decision refers to the testimony of William S. McCormick, who, at that time, was a partner of Cyrus McCormick as a manufacturer and seller of the McCormick reaper:

"As a farmer I used the reaper without a seat, before a good one was invented, and am perfectly certain that it was so nearly worthless that a machine without one could not be sold at any price that would pay in competition with one having a raker's seat; this is my experience from my intimate connection with the business for many years." (Commissioner's Decision, January 28, 1859.)

I further find:

"In the criticism which has been necessarily made upon the invention of 1845, there has been no design to detract from the acknowledged value and usefulness of the machine, as constructed under the patent of 1847. It has had its brilliant successes in England and France, but it has also had its marked discomfitures when competing with other machines. Though enjoying a great and perhaps a still expanding popularity, it is by no means a universal favorite."

The last words of the Commissioner are: "The application must therefore be rejected."

There were no questions raised as to the invention of Mr. Hussey.

The statement that McCormick's success was founded upon the inventions of others and to no extent upon his own, as quoted from "Memorial of Robert McCormick," is in part admitted by Cyrus McCormick, who, in his affidavit when applying for the extension of his 1847 patent said: "He has, at the expense of much thought, time, and money, added many other important improvements to it since 1847, which have contributed to the profits of his manufacture." He then refers to other improvements, saying: Among such improvements by others as he has had to pay for, are the inventions of his brothers, of Obed Hussey, of Jonathan Reed, of Henry Green, of Solymon Bell and of Joseph Nesen. It is known that for nearly thirty years Obed Hussey manufactured and sold reaping machines and mowers in his limited way and, infringing no rights of others, had no royalties to pay. To such an extent was his mind that of an inventor, that he devoted thought to many side lines, the expense of which taxed his abilities until, when his patent of 1847 had but two years to run, he sold it for $200,000.00.

COMMISSIONER'S DECISION

In the matter of this application of Eunice B. Hussey, Administratrix of Obed Hussey, deceased, for the extension of Reissued Letters Patent No. 449 for an improvement in Reaping Machines, dated the 14th day of April, 1857, being a division and re-issue of original Letters Patent No. 5227, dated the 7th day of August, 1847, for an improvement in Reaping machines.

Also, the application of the same party for the extension of the Reissued Letters Patent No. 451, for an improvement in Reaping Machines, dated the 14th day of April 1851, being a division and Reissue of Original Letters Patent No. 5227, dated the 7th day of August, 1847, for an improvement in Reaping Machines.

Also, the application of the same party for the extension of Reissued Letters Patent No. 742, for an improvement in Reaping Machines, dated the 21st day of June, 1859, being a division of Reissued Letters Patent No. 450, dated the 14th of April, 1857, being a division and Reissue of original Letters Patent No. 5227, dated the 7th day of August, 1847, for an improvement in Reaping Machines.

Also the application of the same party for the extension of Reissued Letters Patent No. 917, dated the 28th day of February, 1860, for an improvement in Reaping Machines, being a reissue of reissued Letters Patent No. 743, dated June 21, 1859, the last named Patent being a division and reissue of reissued Letters Patent No. 450, dated the 14th day of April, 1857, which last mentioned patent was a division and reissue of original Letters Patent No. 5227, dated the 7th of August, 1847, for an Improvement in Reaping Machines.

These four applications for the extension of the said four patents, Nos. 449, 451, 742 and 917, having been made in due form on the 30th day of November, 1860, and the Commissioner of Patents having caused to be published in due and legal form, notice of said applications and of the time and place when and where the same would be considered. And the applicant, the administratrix and widow of the patentee, having duly furnished and filed statements in writing under oath of the ascertained value of the said inventions and improvements claimed in said patents, and of the receipts and expenditures of the patentee and his legal representatives sufficiently in detail to exhibit a true and faithful account of loss and profit in any manner accruing to the patentee and his legal representatives from and by reason of said inventions and patents. And the testimony in these four cases having been duly filed and considered and referred to the principal Examiner having charge of the class of inventions to which these belong, and the said Examiner having made a full report upon the said cases, and particularly that the inventions or improvements, secured by the said four patents, were new and patentable when patented. And the printed arguments in these cases having been duly filed and considered, and the day of hearing viz. the 28th day of Feb., 1861, arrived, undersigned, the Acting Commissioner of Patents, sitting at the time and place designated in the said published notice to hear and decide upon the evidence produced before him both for and against the extension, and having heard all persons who appeared to show cause why the extension should not be granted, does decide as follows, viz.:

That the applications for extension in these cases were made at a proper time, and not prematurely as the opponents have contended. The only ground alleged to support the allegation that the applications were premature is that the receipts for the year 1861 cannot be fully ascertained at this time, but must be estimated or guessed at. If this is a good reason for not considering the applications now it would also be good on the 7th of August when the patent expires, for the receipts would not then be ascertained, but would still be the subject of estimate only. These receipts can be as well determined by this mode now, as in August. The objection on this point is not therefore well taken, and must be overruled. An application for extension cannot be regarded as premature if made during the last year of the term of the patent, and the total receipts are known or can be estimated with reasonable certainty. In addition to this there seems to be no little force in the argument of Counsel that the public convenience would be promoted by an early decision upon these cases before manufacturers enter upon their preparations for another year's business.

Besides these considerations, which of themselves are sufficient to determine the propriety of hearing these cases at the present time, the late Commissioner of Patents fixed this time for these hearings with reference to the public interests therein, and is an additional reason why it should be adhered to, yet I should have no hesitation in postponing the hearing if it were made to appear that the public interest were likely in any way to be subserved by such postponement.

The report of the Examiner leaves no doubt in my mind as to the novelty of each of the inventions which constitute the subject matter of the four patents for which the extensions are asked. His report is equally conclusive as to the utility of the inventions, their value and importance to the public, and as to the patentee's diligence in introducing them into public use, and his efforts to derive remuneration from their sale.

From a careful examination of all these points myself, I have arrived at the same conclusion as the Examiner.

The Counsel, Wm. N. Whitely, the opponent of these extensions have urged with great pertinacity that the inventions are not novel. They allege that the same thing existed before in Hiram Moore's "Big Harvester" in Michigan--the Ambler Machine in New York--the Nicholson Machine in Maryland--and the White and Hoyle Machines in Ohio. They also contend that the invention claimed in Patent No. 451 especially, is of no utility or value. On a careful review of all these points with the light of the Argument of Counsel, I am quite clear that the Examiners conclusion as to the novelty and utility of Hussey's invention are sound. The Moore or "Big Harvester" cutting apparatus, the testimony shows was designated for the performance of a different duty from Hussey's and could not without essential changes of construction, amounting to changes in its principle and mode of operation, be used for the same purposes as that of Hussey.

The Ambler machine had a straight edge cutter vibrating on arms through barbed or open slotted fingers. His Cutting apparatus lacked an essential element found in Hussey's the scalloped cutter, to say nothing of other material differences. This machine has nothing to impeach the novelty of Hussey's inventions. The Nicholson Model has no vibrating scalloped cutter which is one of the specific elements of Hussey's combination. The White machine as shown in the exhibit produced and which the testimony shows has been recently fabricated is not substantially the same combination claimed in patent No. 742. It has not like Hussey's a cutter with flush edges on both sides of the angle of the forks on the same side of the blade. The Hoyle Machine, according to Hoyle's own deposition, is subsequent in date to Hussey's invention.

It is contended by the opponents that the patent No. 451 has no utility or value. I am inclined to the opinion that the utility of the improvement specified in this patent is, of itself, small, compared with the improvements covered by the other patents of Hussey now before me, which are all of very great utility, and two of them indispensable in the present state of the art. Still since the novelty of the improvement claimed in No. 451, is admitted and is proven by the testimony of Henry B. Renwick to have some utility as one of this series of patents, I think it has sufficient utility to justify an extension.

The contestant's counsel have argued from the testimony of Lovegrove, that Hussey abandoned his inventions to the public by having them on sale more than two years before applying for a patent. The testimony does not sustain this point. Besides, an inventor does not abandon his invention to the public by constructing a machine embracing it, in the same factory where he makes and sells other machines. Nor by using it experimentally in such a factory or elsewheres. Nor by keeping it in such a factory from the autumn of one year to the harvest of the next year. Nor by doing all or any of these things more than two years before his application for a patent.

The statement of receipts and expenditures is unusually full and in detail, more so than is necessary to fulfill the requirements of the law.

There are two classes of expenditures and two corresponding classes of receipts, viz.:

1st. Expenditures and receipts on account of the manufacture and sale of Reapers and Mowing Machines embracing the patentee's improvements.