the final fee, but who fails to make payment thereof within six months from the time at which it was passed and allowed, and notice thereof was sent to the applicant or his agent, shall have a right to make an application for a patent for such invention or discovery the same as in the case of an original application. But such second application must be made within two years after the allowance of the original application. But no person shall be held responsible in damages for the manufacture or use of any article or thing for which a patent was ordered to issue under such renewed application prior to the issue of the patent. And upon the hearing of renewed applications preferred under this section, abandonment shall be considered as a question of fact. I am unable to discover any expression in the statute which either directly or by implication indicates that it was intended to confer upon the applicant for patent the right to more than one renewal of his application where he has by neglect or refusal failed to prosecute his claim and perfect his right within the time required by the statute. His failure to pay the final fee within six months from the date of the approval of his application forfeited his right to a patent and was so far an abandonment and surrender of his exclusive right to the invention that no person could be held responsible in damages for the manufacture or use of the article or thing for which patent was applied for prior to the issue of said patent. The effect of the statute is to restore to the applicant rights that have been forfeited and surrendered to the public by his failure to prosecute and perfect his claim within the time required by the statute. The act did not contemplate the restoration of a right that had been again forfeited by the failure of the applicant to pay the final fee within the limit prescribed by the statute, and the public would be thereafter justified in regarding his failure to perfect his application as an abandonment of the invention. Besides, the expression, "but such second application must be made within two years," &c., implies that no other application should be allowed. I am, therefore, of the opinion that the statute does not contemplate that more than one renewal may be made, even though such second application for renewal is made within two years from the date of the original application. Very respectfully, Approved: (Signed) JOHN I. HALL, Assistant Attorney-General. HOKE SMITH, DECISIONS OF UNITED STATES COURTS IN PATENT CASES, 1894. [Supreme Court of the United States.] GILES et al. v. HEYSINGER et al. Decided December 18, 1893. 66 O. G., 171. MILLS AND HERSHEY-HAIR-CRIMPERS-PATENTABLE NOVELTY-MECHANICAL JUDGMENT. Claim 1 in Letters Patent No. 218,300, for an improvement in hair-crimpers, consisting of a non-elastic metallic core and a braided covering cemented to the core, issued August 5, 1879, to William Mills and Christian H. Hershey, examined in view of the state of the art, which disclosed that it was old to cement together a metal core, an inner covering of cotton, and an outer braid of silk, and Held to be void as lacking in patentable novelty, it being a matter within the judgment of the maker whether the cement should be applied directly to the core, as is done in the claim, or to an inner covering of the core, as was done in the prior state of the art. APPEAL from the Circuit Court of the United States for the Southern District of New York. Mr. J. J. Jennings for the appellants. Mr. Aug. B. Stoughton for the appellees. STATEMENT OF THE CASE. This was a bill in equity brought by Heysinger and one Christian H. Hershey, now represented by the administrator of his estate, against the appellants, trading under the name of Noyes, Smith & Co., to recover damages for the infringement of Letters Patent No. 218,300, issued August 5, 1879, to William Mills and Christian H. Hershey, for an improvement in hair-crimpers. 10693 PAT8 113 In their specification the patentees state: This hair-crimper is intended to be applied to the hair in the manner of the crimping-papers formerly in common use, the ends being turned under out of sight, and the hair retained by the folds thus made. It consists, essentially, of a strip of soft non-elastic metal, preferably flat, covered with a fibrous coating, cemented thereto, so that when cut into proper lengths for use the ends will not fray out, but remain the same into whatever number of pieces the crimper may be divided, thus rendering it especially adapted for use with children, where crimpers of different lengths are often required, while at the same time greatly simplifying and cheapening the cost of manufacture. The crimper consists of a core of what is known as "gardeners' lead,” which is passed in long strips through a liquid cement kuown as dextrine, and is then wound about by a braid of fibrous covering, and the adhesive material, taken up in the passage through it of the leaden core, is thus interposed between the fibrous covering and the soft metal core, making an adhesion between them, while leaving the outer surface of the braid soft and unsaturated. Were the fibrous surface thoroughly saturated with adhesive matter, the crimper would be comparatively useless, as the least moisture in the hair would cause its adhesion thereto. The article is manufactured in long strips which are laid away and dried, after which they are run through a cutting machine, which cuts the strips into pieces of equal length, laying them out in dozens, which are then bundled and boxed for the market. The first claim of the patent-the only one charged to have been infringed-reads as follows: 1. A hair-crifuper consisting of the non-elastic metallic core C and braided covering A, said covering A being cemented to said core C throughout its entire length, substantially as described. Upon the hearing in the court below, a final decree was entered for $360.85 with costs, from which decree defendants appealed to this Court. Mr. Justice BROWN delivered the opinion of the Court. This case was defended upon the ground that one Gilbert H. Blakesley, the real defendant in the case, long before this patent was issued, manufactured hair-crimpers in substantially the manner specified in the patent. The substance of the testimony in this connection is that in the latter part of 1875, one Julius Wright, whose principal business was the manufacture of garters at Bristol, Conn., began the manufacture of hair-crimpers by rolling a sheet of copper to the proper thickness, putting it upon a reel, and braiding it with silk. Then [says he] I had this taken off a reel and stretched out on a bench, and at certain lengths that I wanted to cut the crimps I used the dextrine with a brush for the same purpose that we did for cutting up the garter, that is, to assist in cutting up. Then those that I made, I made a little brass tip, as I called it, which I put on to give the crimper a finish, or ornament, whichever might be proper. He states the object of applying the cement to have beento adhere the silk to the metal, and stiffen it, so as to cut it. He was engaged in this way for one or two months, and made up about thirty gross of crimpers. The dextrine was laid on at intervals of about two and a half inches, and the advantage of using it seems to have been to facilitate the cutting of the crimpers at these points, and providing them with a silver-plated clip at each end. It was not claimed that Wright cemented the braided covering to the core "throughout its entire length," as specified in the first claim of the patent. He further testified that Blakesley took up the business in the spring of 1876, by passing the strips of metal up through a dish of dextrine, after which it was braided with silk. He says the metal was not covered when it entered the dish, but it looked wet and discolored as it emerged, and that the effect of passing the strip through the cement or dextrine, and then applying the silk covering, would be to secure the covering to the metal. Blakesley stated the process as follows: I directed a plain strip of brass through a dish of dextrine provided with a roller journaled in a dish, thereby to immerse the strip, passing it to the braider, while wet with cement, to which the silk cover adhered throughout the length of the strip I then cut them up at any point I desired. He judges that he made some fifty gross or more in this way and then changed his plan by making them with a double covering. I first covered the plain strip of metal with cotton, the strip being dry. I then conducted the cotton-braided strip through the silk-braider, applying a cover of silk. The cotton-covered strip was conducted through a dish of dextrine under a roller journaled in the dish, thence to pair of stripping-rolls situated between the dish and the braider, this dextrine saturating the cotton thoroughly throughout its length, the stripping-rolls depriving it of the surplus cement, leaving it wet and thoroughly saturated, and wet enough to receive the silk covering, and cement it, so that all three-core, cotton cover, and silk cover-were cemented together. They were cut up and packed as before. The court below held, with regard to the double-cover process used by Blakesley, that the braided covering was immersed in the dextrine not in order to cement it to the core, but to enable the material to be cut without fraying out. The adhesion of the strands together, and not their adhesion to the core, was the object he had in view. The court, however, regarded the theory that Blakesley made crimpers also by immersing a strip of metal in dextrine, and then covering it, as refuted by the omission, of both Blakesley and Wright to mention the fact in their affidavits used to oppose a motion for a preliminary injunction, as those affidavits purported to give a full history of the manufacture of crimpers by Blakesley- and the omission to state what was so important, if true, is significant. Acting upon this theory, the court directed an interlocutory decree for the plaintiffs. Defendants thereupon moved immediately for an order to reopen the case for the admission of additional testimony bearing upon the question of anticipation, and for a rehearing; and presented seven affidavits in support of Blakesley's testimony concerning the manufacture of crimpers by passing a bare strip of metal through the dextrine before the silk braid was applied; and also the affidavit of his counsel, explaining the omission of the mention of this particular in the affidavits of Wright and Blakesley, read in opposition to the motion for a preliminary injunction. The court denied a rehearing, and the case was referred to a master, who proceeded to take testimony in respect to the damages, and submitted a report upon which a final decree was entered. Under these circumstances, we have not felt at liberty to consider the affidavits for a rehearing. But assuming that the court was correct in its conclusion that the testimony of Wright and Blakesley, with respect to the process of immersing the bare strip of metal in the dextrine, and then covering it, should be disregarded, by reason of their omission to mention the fact in their affidavits to oppose the injunction, the question still remains whether the process about which they did testify, and which it is admitted Blakesley did adopt, was not a substantial anticipation of the Mills and Hershey patent. This, which is known as the "doublecover" process, consisted in covering the plain strip of metal with cotton, and conducting the strip so covered through a dish of dextrine under a roller journaled in the dish, and thus saturating the cotton thoroughly throughout its length; thence to a pair of stripping rolls, which deprived it of the surplus cement, when the cover was braided on, so that as he states all three-core, cotton cover, and silk cover-were cemented together. Blakesley states that the cotton strands did not make as compact a braid as silk, but left the meshes somewhat open, so as to allow the cement to circulate more freely through the covering. If, as he states to have been the case, the saturation of the cotton was so thorough that all three-core, cotton cover, and silk cover-were cemented together, it is difficult to see why this process did not cover everything that is claimed for the Mills and Hershey patent. The advantage of cementing the braid to the core throughout its entire length is stated in their patent to be so that when cut into proper lengths for use the ends will not fray out, but remain the same into whatever number of pieces the crimper may be divided-while the outer surface of the braid is left soft and unsaturated. This was precisely the object sought to be accomplished, though for a temporary purpose, by Wright, in his first experiments, by applying dextrine to the braided covering at intervals of two or three inches, and by Blakesley in several processes used by him, including the one which is charged to be an infringement, and which consist in inclosing the metal core in long strips of paper passed through a bath of dextrine, before the braided covering is applied. But whether Blakesley applied the dextrine to the bare metal in the manner described in the Mills and Hershey patent, or to the metal after it was covered with the cotton braid, makes apparently little practical difference with respect to fraying out, and was a matter which rested in the judg. ment of the manufacturer. If either plan were known, the adoption of |