Obed Hussey Part 5

[Sidenote: McCormick Had to Pay for Hussey Improvements]

[Sidenote: Mr. Hussey Did Not Need the Improvements of Others]

The statement that McCormick's success was founded upon the inventions of others and to no extent upon his own, as quoted from "Memorial of Robert McCormick," is in part admitted by Cyrus McCormick, who, in his affidavit when applying for the extension of his 1847 patent said: "He has, at the expense of much thought, time, and money, added many other important improvements to it since 1847, which have contributed to the profits of his manufacture." He then refers to other improvements, saying: Among such improvements by others as he has had to pay for, are the inventions of his brothers, of Obed Hussey, of Jonathan Reed, of Henry Green, of Solymon Bell and of Joseph Nesen. It is known that for nearly thirty years Obed Hussey manufactured and sold reaping machines and mowers in his limited way and, _infringing no rights of others, had no royalties to pay_. To such an extent was his mind that of an inventor, that he devoted thought to many side lines, the expense of which taxed his abilities until, when his patent of 1847 had but two years to run, he sold it for $200,000.00.

COMMISSIONER'S DECISION

In the matter of this application of Eunice B. Hussey, Administratrix of Obed Hussey, deceased, for the extension of Reissued Letters Patent No.

449 for an improvement in Reaping Machines, dated the 14th day of April, 1857, being a division and re-issue of original Letters Patent No. 5227, dated the 7th day of August, 1847, for an improvement in Reaping machines.

[Sidenote: Applications of Mr. Hussey's Widow for Patent Extension all Granted]

Also, the application of the same party for the extension of the Reissued Letters Patent No. 451, for an improvement in Reaping Machines, dated the 14th day of April 1851, being a division and Reissue of Original Letters Patent No. 5227, dated the 7th day of August, 1847, for an improvement in Reaping Machines.

Also, the application of the same party for the extension of Reissued Letters Patent No. 742, for an improvement in Reaping Machines, dated the 21st day of June, 1859, being a division of Reissued Letters Patent No. 450, dated the 14th of April, 1857, being a division and Reissue of original Letters Patent No. 5227, dated the 7th day of August, 1847, for an improvement in Reaping Machines.

Also the application of the same party for the extension of Reissued Letters Patent No. 917, dated the 28th day of February, 1860, for an improvement in Reaping Machines, being a reissue of reissued Letters Patent No. 743, dated June 21, 1859, the last named Patent being a division and reissue of reissued Letters Patent No. 450, dated the 14th day of April, 1857, which last mentioned patent was a division and reissue of original Letters Patent No. 5227, dated the 7th of August, 1847, for an Improvement in Reaping Machines.

[Sidenote: Claim of Opponents Overruled]

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 princ.i.p.al Examiner having charge of the cla.s.s 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.

[Sidenote: 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 const.i.tute 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.

[Sidenote: 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.

[Sidenote: Utility of Hussey's Inventions]

It is contended by the opponents that the patent No. 451 has no utility or value. I am inclined to the opinion that the utility of the improvement specified in this patent is, of itself, small, compared with the improvements covered by the other patents of Hussey now before me, which are all of very great utility, and two of them indispensable in the present state of the art. Still since the novelty of the improvement claimed in No. 451, is admitted and is proven by the testimony of Henry B. Renwick to have some utility as one of this series of patents, I think it has sufficient utility to justify an extension.

[Sidenote: Mr. Hussey Did Not Abandon His Invention]

The contestant's counsel have argued from the testimony of Lovegrove, that Hussey abandoned his inventions to the public by having them on sale more than two years before applying for a patent. The testimony does not sustain this point. Besides, an inventor does not abandon his invention to the public by constructing a machine embracing it, in the same factory where he makes and sells other machines. Nor by using it experimentally in such a factory or elsewheres. Nor by keeping it in such a factory from the autumn of one year to the harvest of the next year. Nor by doing all or any of these things more than two years before his application for a patent.

The statement of receipts and expenditures is unusually full and in detail, more so than is necessary to fulfill the requirements of the law.

There are two cla.s.ses of expenditures and two corresponding cla.s.ses of receipts, _viz._:

1st. Expenditures and receipts on account of the manufacture and sale of Reapers and Mowing Machines embracing the patentee's improvements.

2nd. Expenditures and receipts on account of the sales of Patent rights and licenses, and compromise of infringements.

The Patentee manufactured and sold about 2,000 machines, and a few other articles at a cost of materials and labor $195,292.88 Shop and Tools 12,500.00 One-quarter of patentee's time and expenses 9,008.22 ___________ $216,801.10

The receipts on account of the sale of these manufactures were:

Cash for Reapers $216,607.90 Cash for parts of Reapers 22,416.58 Notes and Book Accounts 11,388.23 Cash for Corn Crushers 1,135.25 Discount and Interest 2,327.84 ___________ $253,875.80

The result of the manufacturing business is an excess of receipts over expenditures of $37,074.70. This statement, however, allows nothing for manufacturer's profits. An allowance for such profit ought to be made but in this case the object is to eliminate from the gross receipts such profits as have in any manner accrued from or by reason of the inventions claimed in the patents. Now receipts or profits that result from business talents or skill in manufacturing or in financeering are not receipts or profits in any manner accruing from or by reason of an invention. In the case of Seymour and Morgan vs. McCormick-Howards Reports Vol. 16 p. 480, the Supreme Court of the United States held that the ruling of Judge Nelson that the whole profits of the manufacture of Reaping machines in which one small part of the machines infringed a patent was to be considered as accruing from the use of the patented part was erroneous, and that a reasonable manufacturer's profit for the use of the Capital so, in addition to the actual cost of the machine must first be deducted from the gross receipts, and if then there was any excess, that might be a.s.signed to patents. This decision I should deem binding and conclusive upon the subject even if I did not think that the values of business capital and talent are as fairly charges against the receipts of business as the values of a business house or tools.

[Sidenote: An Inadequate Profit]

In this case there is only an excess of $37,074.70 of the receipts over the expenditure or something less than 14 per cent upon the gross amount of sales. This is a very inadequate profit for manufacturing and selling, but it is all there is, and it is all that I can allow.

If the excess of the receipts over the expenditures had amounted to three times fourteen per cent, I should have had no hesitation in allowing the whole of it for manufacturer's profit, and should not have deemed it more than a reasonable allowance in view of the testimony of Long, which shows that his firm have made a profit of over fifty per cent after paying patent fees, on their manufacture of reapers.

It seems to be supposed from the reference which has been made to Commissioner Holt's decision in the case of McCormick's application for the extension of his patent of 1845, that he entertained views at variance with those I have expressed as to the justice of allowing manufacturer's profits as a part of the expenditure, and as an offset against the receipts, but a careful examination of that opinion will show clearly that Mr. Holt was not willing to allow a charge for the use of Capital, and for wear and tear of machines (which are the Const.i.tuent elements of a manufacturer's claim to allow for profit) and then, again allow a second or duplicate charge for the same things under the name of manufacturer's profits. This is the extent to which Mr. Holt goes, and I fully agree with him.

The expenditures on account of the patents and the sale of rights and licenses under the same are:

For three quarter of patentee's labor and expense $27,024.68

For sundry legal and traveling expenses 44,562.88 __________ $71,587.56

The receipts on the same account are:

Cash for licenses, sale of rights, etc. $92,788.38

Notes and unsettled accounts 23,748.89 License fees estimated for 1861 10,000.00 ___________ $126,537.27

showing that the receipts exceed the expenditures by $54,949.71 or $13,737.42 for each of the four patents.

This I can have no hesitation in p.r.o.nouncing to be a totally inadequate compensation for inventions of such great value and importance.

After a most laborious examination and careful consideration of the whole matter, it appears to my full and entire satisfaction, having due regard to the public interest therein, that it is just and proper that the term of the said reissued patents No. 449, No. 451, No. 742, and No.

917 should severally be extended by reason of the patentee, without fault or neglect on his part, having failed to obtain from the use and sale of his said inventions a reasonable remuneration for the time, ingenuity and expense bestowed upon the same and the introduction thereof into use.

[Sidenote: Hussey's Inventions the Basis of all Reaper Manufacturers Profits]

The list of licenses under these patents show the acquiescence of the princ.i.p.al manufacturers in the justice of Hussey's claims. The list shows that the manufacturers of Reapers have made large profits, and that Hussey's improvements are the foundation of their success. It is certainly just and equitable that Hussey's heirs should be allowed to partic.i.p.ate in the advantages of using his own inventions to an extent more nearly commensurate with the merits of those inventions.

[Sidenote: A Merited Tribute from the U.S. Patent Office]

The character of the opposition to these applications, in which but a single manufacturer has entered an appearance is such, as greatly strengthens this view, and I feel constrained to regard this tacit a.s.sent, of the great body of manufacturers to these applications for extension, an additional evidence of the soundness of my own conclusions.

As it is also a fitting and merited tribute to Obed Hussey, now in his grave, for the invaluable contributions his genius and industry have made to the improvements of the age.