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.
Value and Importance of Hussey Inventions Fully Established
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.
Opponents Contentions Not Proven by Facts
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.
Utility of Hussey's Inventions