“The principle is well established that he who first reduces an invention to practical form is entitled to a patent therefor. Applying this test in this case, the right to a patent seems to rest entirely in Mowbray, and the invention is accordingly awarded to the patentee.”
And again Mr. Samuel S. Fisher, the Commissioner of Patents, in giving his decision, remarks:
“The story of Shaffner is not that of a man who had invented anything. He had a theory, talked about it, doubted its value; did not experiment to satisfy himself; until Mowbray was manufacturing on a large scale; and evidently did not intend to apply for a patent at all. I can find none of the ear-marks of a perfected invention, carried beyond the region of experiment; still less of any trace of diligence. Priority is awarded to Mowbray.”
As previously noted, the Nobel patent with its re-issues, in four divisions, and twenty-four columns of specifications, containing eight claims drawn up expressly to intercept infringers, specifically, emphatically, and unmistakably insisted:
1st. That Nobel discovered it was necessary to confine Nitro-Glycerin in order to explode it, and that it was practically impossible to explode it unconfined.
2d. That heat and pressure were the agents necessary for a successful explosion of Nitro-Glycerin.
The writer, however, discovered that the heat, pressure and confinement, claimed by the Nobel patent and re-issues, were unnecessary, by charging an open glass tube with Nitro-Glycerin, the glass tube being immersed in water, and the Nitro-Glycerin exploded by the concussion of a cap containing fulminate of mercury, and so succeeded in extricating himself from the domain of the Nobel patents and their particular claims.
But he could not extricate himself from litigation; the insolvent assignee, the United States Blasting Oil Company, clearly perceiving that the monopoly, as they had termed it, was gone, now resorted to the “pis aller” of litigation, misrepresentation, and threatening every one who used Mowbray’s Nitro-Glycerin, with the trouble of making affidavits, engaging counsel, and collecting evidence, a by no means to be despised aggressive warfare to contractors, who need all their time, all their capital, and all their ingenuity, to carry out their contracts to a profitable result. Guaranteeing the payment of enforced damages, I met this flank movement by engaging the best counsel, and resolutely set about terminating the pretensions of these patents.
A Suit in Equity was commenced in the Circuit Court of the United States, Western District of Pennsylvania, during the May Term, 1870, by the
United States Blasting Oil Company of New York, by its President, Tal. P. Shaffner,