Glue Company v. Upton

Decision Date01 October 1877
Citation24 L.Ed. 985,97 U.S. 3
PartiesGLUE COMPANY v. UPTON
CourtU.S. Supreme Court

APPEAL from the Circuit Court of the United States for the District of Massachusetts.

This is a suit in equity by the Milligan and Higgins Glue Company, against George Upton, for the alleged infringement of reissued letters-patent No. 4072, for an improvement in the manufacture of glue, granted July 12, 1870, to Thomas P. Milligan and Thomas Higgins, assignees of Emerson Goddard, upon the surrender and cancellation of original letters-patent No. 44,528, issued to the latter Oct. 4, 1864. The complainant is the assignee of Milligan and Higgins. The bill prays for an injunction, and for an account of the defendant's gains and profits arising from the manufacture and sale of the patented article. Upon hearing, the court below dismissed the bill, whereupon the complainant appealed here. The facts relating to the alleged invention are stated in the opinion of the court.

The case was argued by Mr. Edmund Wetmore for the appellant.

The court declined to hear Mr. George L. Roberts and Mr. Chauncey Smith for the appellee.

MR. JUSTICE FIELD delivered the opinion of the court.

In the court below, the defendant questioned the validity of the surrender of the original patent and of the reissue; but, from the view we take of the alleged invention or discovery, it is unnecessary to consider this point. We shall treat the reissue as for the same invention or discovery, differing in no substantial particular from that originally patented. In the specification accompanying the reissue, the patentee states that he has invented a new and useful article, which he denominates 'instantaneous or comminuted glue;' and then proceeds to describe the glue of commerce previously found in the market, and to point out the inconveniences attending its use, and the manner in which they are obviated by his invention. He states that the ordinary glue of commerce was then sold in the form of hard, angular flakes, and that it required a good deal of time to prepare it for use,—first by soaking it in cold water, and afterwards by heating it in a hot-water bath until the flakes were dissolved. The time thus occupied, he says is saved by his invention, as his article does not require to be prepared for solution by soaking, is quickly permeated by water, so that it can be dissolved in large quantities ready for mechanical use in less than five minutes, and in smaller quantities for domestic use in less than one minute. Another objection stated to the glue of commerce as previously sold is, that great inconvenience was experienced in retailing it, from the difficulty of putting it up in small packages, by reason of the sharp, angular corners and edges of the broken flakes, which cut the wrappers, causing a waste of time and stock. The new article, he says, can be put up by machinery or by hand into packages of uniform size and of regular form and weight, similar to those in which ground spices are put up for domestic use, and sold by retail traders. He also states that the new article has a...

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