Opinion of Clifford and Davis, JJ., dissenting. to express any such intention, which, as it seems to me, reverses the standard rule of construction as expressed in a valuable maxim often quoted and applied in such discussions-Expressio unius est exclusio alterius. If Congress had intended to make other alterations in the prior regulations upon the subject it is fairly to be presumed they would have said so, as it is always to be presumed that the legislature when it entertains an intention will express it in clear and explicit terms.* If the legislature intended more, said Lord Denman, in Haworth v. Ormerod,† we can only say, that according to our opinion they have not expressed it; to which it may be added that the better rule of construction is to hold that the legislature meant what they have actually expressed, unless some manifest incongruity would result from doing so, or unless the context clearly shows that such a construction would be erroneous. Words may sometimes be transposed, but they cannot be inserted.§ Intention, it is true, should govern, but it must be such an intention as the legislature have used fit words to express. Repeals by implication are not favored. On the contrary, the leaning of the courts, says Mr. Justice Swayne,** is against the doctrine, if it be possible to reconcile the two acts of the legislature together. Our best judgment is, says Mr. Phillips, that while the law has secured the right to stay proceedings by giving security in sixty days, the party is still bound to lodge his writ, as required by the Judiciary Act, within ten days, and that in the absence of a supersedeas bond filed within that period the execution may issue; and in that view I concur, and consequently dissent from the direction and opinion of the court. Service of the writ of error by lodging a copy thereof in the clerk's office for the adverse party within ten days, without more, will not * Potter's Dwarris, 219. Rex v. Banbury, 1 Adolphus & Ellis, 142. Lamond . Eiffe, 8 Queen's Bench, 910. † 6 Queen's Bench, 807. Potter's Dwarris, 182; Brewer v. Blougher, 14 Peters, 178. ** McCool . Smith, 1 Black, 470. Syllabus. effect a stay of execution, but if the security required is given within sixty days the supersedeas becomes effectual from the time the required security is given. KLEIN V. RUSSELL. 1. Where on a trial for infringement of a reissue of letters-patent-the defence being a want of novelty-a defendant requests the court below to direct the jury to bring in a verdict for the defendant (no objection being then or having during the trial been taken by such defendant, that the reissue was for a different invention from that secured by the original patent), and the request for the direction just stated not having been on that ground, but on the ground of the evidence "relative to the alleged prior use of the process, and the novelty, and usefulness, character, and effect of the alleged invention being so decisive as to entitle the defendant to a verdict "-and the request has been refused-the defendant cannot assign us error the refusal to give the direction, because the reissue was not for the same invention as was the original patent. 2. A reissue is primâ facie to be presumed to be for the same invention as is the original patent. 8. A direction to find for one party or the other can only be given where there is no conflict of evidence. 4. Where, on a question of novelty in a patented process, a witness has stated that, after the patent, he was using a particular process which he had been using for twenty years before (a process which the defendant affirmed to be the same as the one patented), it is allowable to ask the witness whether the patentee had not forbid him to use what he was then using; the purpose of the question being to show that the patentee had forbid him, und that the witness then disclaimed using the patented process, and said that he had “a way of his own" which he was using. 5. It is allowable to ask a witness of the opposite side, who has referred to and said that he had seen and copied a paper in reference to the expenses of the suit, subscribed by various persons, what were the contents of the paper; the purpose of the question being to show by the answer that the defendants' witnesses were in a combination to defeat the plaintiff and to share the expense of the opposition. It was not necessary prior to the question to call on any one to produce the original paper. 6. When a patent is on trial and the question in issue involves the matter of novelty, utility, and modus operandi, it is proper enough to usk what the effect of the patented invention has been. 7. In construing a patent courts should proceed in a liberal spirit, so as to sustain the patent and the construction claimed by the patentee, if it can Statement of the case. be done consistently with the language which he has employed; and this applies to a reissue as much as to an original patent. 8. Hence when there has been a reissue on an original patent, and the meaning of the specification and claim in the reissue is not perfectly clear, they may be read by the light of the specification and claim of the original patent, and if they can be sustained consistently with the language there used, be sustained by them. 9 A request which asks the court to charge that if a process patented was known to others more than two years before the plaintiff applied for his patent, the plaintiff's patent is void-is rightly refused. 10. Where a specification in describing the mode of treating articles with a patented process (a liquid) said that "it is desirable to heat the latter to or near the boiling point," and there was testimony that if applied while in that state to the articles to be treated it would greatly injure them, as also that if it was suffered to cool before being applied it possessed virtue, a request which asked the court to charge that the proper construction of the patent is that if the liquid applied at such a temperature is injurious and pernicious, the patent is void for want of utility, is rightly modified by a change which makes the charge say to the jury that the proper construction is that the liquid should be applied at or near the boiling-point under the common knowledge of persons skilled in the art of treating the articles to be affected and to procure the desired results, and in reference to the fact whether such knowledge would make them wait until it was partially cooled before its application; and that if the application of the liquid at such a temperature as is required by the specification, under this qualification, was injurious and pernicious, then that the patent was void for want of utility. 11. Where one claim of a patent was for treatment by a compound composed of a liquid and other ingredients mentioned, a request for an instruction that the addition to the liquid of the ingredients is not patentable if such addition does not change the properties of the liquid, or its effect or usefulness, when applied to the purposes mentioned in the patent, is rightly modified by charging as requested with the addition of the words "or to other like purposes." 12. A claim for a compound is not void because the specification does not prescribe exact and unvarying proportions in the ingredients of a compound; some of the ingredients being, ex. gr., coloring matter, which the specification says may be omitted or modified as desired." 18. A court is not bound to comply with requests for charges on points not raised by the evidence; nor when it has charged generally on the subject in its general charge, to repeat itself by answering requests for the same instructions. ERROR to the Circuit Court for the Northern District of New York; in which court one Russell, a glover, of Glov *See infra, p. 444, note. Statement of the case. ersville, New York, brought suit against Klein, glover in the same place, for an infringement of a patent. The plaintiff got a verdict; the defendant having in the course of the trial taken various exceptions, on which the case was now here. The case was thus: In August, 1869, Russell obtained a patent for a new and useful improved process of treating leather so as to render it suitable for the manufacture of gloves. The specification said: "My invention consists in a novel treatment of what is known as 'bark-tanned lamb or sheep skin,' an article used by bookbinders, and which, while sufficiently soft and supple for the purposes of their trade, is too harsh and stiff for glove-making and a variety of other purposes. This objection is removed by my treatment of the article, and the leather rendered so soft and free, yet full in respect of body, as to adapt it, among other purposes or uses, to the making of what are termed 'dogskin gloves.' "The process I adopt, and which constitutes my invention, is as follows: I take of 'fat liquor' obtained in scouring deerskin after tanning in oil, say ten gallons, and warm the same by heating to or near the boiling-point. I then add to such heated fat liquor eight ounces of sal soda, twelve ounces of common salt, one pint of soft-soap, and four ounces of Venetian red, and stir and mix these several ingredients with the fat liquor. This forms the treating mixture or compound; and when made in the foregoing quantity will suffice for five or six dozen skins, but of course such quantity may be more or less varied, as may also the proportions of the ingredients; and the Venetian red or other coloring matter is modified or omitted as desired. "To effect the treatment herein before referred to, of the barktanned lamb or sheep skins, I lay said skin on a table or other suitable surface, and rub the above-described compound on to both sides of it, using for the purpose a horse or other suitable brush or rubber, by which it can be worked into the skin, that is afterward hung out to dry, and subsequently 'staked,' when the character of the skin will be found entirely changed from barshness to softness, and in other respects, thereby adapting it to the manufacture of gloves of the description previously named, Statement of the case. and to a variety of other purposes for which said skin was not suitable prior to the treatment of it I have berein described." The claim was thus: "What is bere claimed and desired to be secured by letterspatent is the process substantially as herein described, of treating bark-tanned lamb or sheep skin by means of a compound composed and applied essentially as specified." On the 1st of February, 1870, Russell got a reissue of this patent under the thirteenth section of the Patent Act,* which permits a patentee, whenever any patent is "inoperative or invalid by reason of a defective or insufficient description or specification, or by reason of the patentee claiming in his specification as his own invention more than he had a right to claim as new, if the error has arisen by inadvert ency, accident, or mistake," to apply for a new patent, and in such case authorizes a new patent to be issued for "the same invention,” in accordance with the patentee's corrected description and specification. In the reissue, the invention having been described exactly as in the original patent, the specification said: "The principal feature of the invention consists in the employment of what is known amongst tanners and others as fat liquor,' which is ordinarily obtained by scouring deerskins after tanning in oil, but which, when it is not convenient to obtain in this manner, may be produced as a liquor having the same character obtained by the cutting of oil with a suitable alkali. "In treating leather with the fat liquor' it is desirable to heat the latter to or near the boiling-point, and it is preferred to use the same in connection with other ingredients. Thus, for instance, there may be added to each ten gallons of such heated fat iiquor eight ounces of sal soda, twelve ounces common salt, one pint of soft soap or an equivalent quantity of hard soap, and four ounces of Venetian red, such ingredients to be well stirred and mixed with the fat liquor. "This forms a good treating mixture or compound, and, when made in the foregoing quantity, will suffice for five or six dozen *5 Stat. at Large, 122. |