In Railroad Company v. Trimble (10 Wall., 367) one Howe had assigned

All the right, title, and interest which he had in an invention and which might be secured to him from time to time, the same to be held by his assignee for his own use and for that of his legal representatives to the full end of the term for which letters patent are or may be granted.

Howe had then obtained two patents, and afterward died. No special act of Congress had been passed for his benefit or that of his administrator or heirs, and the rights of his assignee depended upon the provisions of the general patent law. The question was whether Howe had by such an assignment granted all his rights to the patents issued to himself when alive after the date of the assignment. The general patent law of 1836, then in force, provided in section 11 that every patent should be assignable in law either as to the whole interest or any undivided part. The court held that this assignment carried the entire invention, and all alterations and improvements, and all patents whensoever issued, and all extensions of the patent, and that an assignment of the extension of a patent before the extension issued carried the extended patent if words proper to embrace the right under the extension were used. Here there was no special act, but if there had been one in favor of the inventor himself, and a patent had issued to him for a second extension of his patent, I think it would be idle to contend that the court would not have held that the assignment in this case would have embraced the extension under the special act.

In the case of the Nicholson Pavement Company v. Jenkins (14 Wall., 452) there was an assignment of an extended patent, the original one for fourteen years having expired. The patentee had granted all the right, title, and interest which he had in the invention and let' rs patent, the same to be held and enjoyed by the assignee for t! use and behoof of himself and his legal representatives to the full end of the term for which the said letters patent are or may be granted, as fully and effectually as the same would have been held and enjoyed by the patentee had the assignment never been made. Here an original patent had already been obtained by the assignor. He had afterward obtained a reissue on an amended specification. He had then made the assignment in the terms which have been stated. He had afterward obtained still another reissue on still other amended specifications, and had then died. There had afterwards been obtained by his administrator, under the eighteenth section of the general patent law of 1836, an extended patent for seven years. No third-term extension had been obtained under any special act. The question was whether the assign ment carried the seven-years-extended patent thus obtained by his admisistrator, and the court held that it did. So, I doubt not, it would also have held if there had been an extension for a third term by special act passed in favor of the inventor himself or of his administrator as his personal representative.

In Hendricv. Sayles (98 U. S., 546) an assignment had been made by an inventor of an invention not yet patented, and afterward a fourteenyears' patent had been issued to the assignee in pursuance of section 11 of the patent law of 1836, and the right of the assignee to a renewed seven-years' patent under the general law was the question in dispute. The court held that a renewed patent might be issued to the assignee, considering that the language of the assignment had been broad enough to cover the extended term. Here the inventor had assigned all the right, title, and interest which he now had or by letters patent would be entitled to have and possess, as described in the specification prepared and executed by him, or to be prepared and executed by him, for obtaining letters patent, the whole to be enjoyed and held by the assignee and his legal representatives to the full extent and manner in which the same would have been or could be held and enjoyed by the inventor had this assignment never been made. I am of opinion that in this case also, if there had been a special act granting a third-term extension of this patent in favor of the inventor himself, the court, under the broad and comprehensive language of the assignment, would have held that the assignment carried the third-term patent, unless the special act contained words expressly or impliedly negativing such an implication.

In the light of these decisions we come now to consider the case at bar. Here we have nothing to do with the use of patented machines after the terms of the patent have expired, and so the first class of cases which have been examined have little if any relevaney to the questions we are to deal with. Nor do the second class of cases which have been considered bear especially upon the case at bar. Those were cases in which the effect of the assignments of inventions before the issue of patents and of patents already issued under the provisions of the general patent law was determined. Noue of the decisions in those cases related to ngats arising under speical acts of Congress. In the case at bar no patent under the general patent law was ever issued. In the decisions referted to patents had issued in every case, and had issued under the general law alone. There assignments made in contemplation of the provisions of the general law were construed by the court in the light of the provisions of the general law. Here an assignment made in contemplation of the provisions of the general law in force in 1852 is to be construed with reference to the terms of a special law enacted twenty-six years afterward. There the rights of assignees were determined with reference to those of the inventors through whom in every case the assignees claimed. Here the rights of an assignee are to be determined, not by those of his assignor existing under general laws, but by those of persons other than the assignor in favor of whom espe cially a special act is passed twenty-one years after the death of the assignor. There patents had issued and been extended in every case under the general law. Here every possibility of obtaining a patent

under the general law had been hopelessly extinguished, had been lost, as is now apparent, by the laches of the assignee no less than of the personal representative of the inventor. Plainly, therefore, the case at bar differs very much from those of Gayler v. Wilder, Railroad Company v. Trimble, Nicholson Pavement Company v. Jenkins, and Hendrie v. Sayles. This special act relieved Graham's heirs of the disabilities existing and preventing them from renewing and reviving an applica tion by the administrator for a patent; authorized the administrator to renew the application; empowered the Commissioner of Patents to grant and issue letters patent for the Graham invention; provided that the patent when issued should have the same force and effect as thongh no delay had occurred in granting it; required that the invention should have been new and useful at the time of the original application, and saved to all persons having machines containing said invention in use at the time of the issuing oft he patent the right to continue the use of them without charge or molestation. Nothing is said of the rights. of assignees of the invention. Those of persons having machines are carefully protected. Certainly if Congress had intended to save the former it would have so declared. On the maxim expressio unius exclusio alterius we have a right to infer that this omission was intentional. The right is given to the administrator for the benefit of the heirs. The only persons whose claims could be considered in competition with those of the heirs were the assignees, and Congress gave the benefit of the patent to the heirs, omitting all mention or consideration of the assignee. The history of the case shows that a great public wrong had been put upon the inventor, and that the object of the act was to repair that injustice to the only persons to whom, in a historical point of view, justice could be rendered., The act was intended as one of national gratitude. The thought of patching up bargains and making good losses of pocket was not in the mind of Congress. The object was to make fair a blotted page in the national record. The disabilities referred to in the act existed as well against the assignee of the invention as against the heirs and administrator, and the act removed one class while omitting to remove the other. Through the operation of the general patent laws of 1836, 1837, 1861, 1870, and of the provisions of the Revised Statutes of 1874, all right to obtain a patent under the application of the inventor made in 1837 and again in 1851 had been lost both to Graham and Burton and to the estates of each. These laws had invested the inventor's assignee as well as himself with a frequently revived right to prosecute the application. This was a legal right invested directly in Burton, and not a mere equitable right such as ordinarily has to be prosecuted in the name and often at the pleasure of the assignor. Burton was as much bound to prosecute the application with diligence, aud was as effectually concluded by his laches, under the general patent laws of the country and rules of practice obtaining in the Patent Office at Washington, as the inventor himself. Graham's rights had been lost by the

Taches of the administrator in not availing of the two years' privilege given by the law of 1861, the six months' privilege given by the law of 1870, and of any privilege of similar character given under the Revised Statutes of 1874. Burton was alive during this period, and his rights under these several laws had been lost by his own personal laches. There was some equity on the part of Congress in giving relief from laches committed by the administrator of a man dead since 1857 which did not exist in favor of a man who lived till 1877. Certain it was that all rights of each were utterly lost. No rights either of the estate of the inventor or of Burton or Burton's estate remained in 1878. A special act was as necessary to the revival of Burton's rights as of Gra. ham's. Whatever rights might be conferred by such an act could inure only to the persons in whose favor it should be granted. Congress did pass a special act expressly removing the disabilities of Graham's heirs and omitting to remove those of Burton's representative, and yet we are asked to supply this marked omission by implication and judicial construction. Considering the national purpose for which the aet was intended, it is eloquent by its silence concerning the lapsed rights of Burton, acquired by purchase with a pittance of money from a distressed, sick, and impoverished benefactor of mankind.

The fallacy of the claim of the complainant in this cause consists in the supposition that the heirs mentioned in the special act of June, 1878, being heirs of William A. Graham, take as if by descent from him, take as heirs an estate charged with all contracts and incumbrances made by him in his lifetime. This is a radical misconception of the character of their title. On the contrary, they do not take at all from Graham; they take directly from the special act of Congress. In technical phrase, assimulating their property to real estate, they take by purchase and not by descent. They are spoken of as heirs in the act, but this is mere descriptio persona. By way of illustration, let us suppose the following facts to have occurred: Smith grants to Brown, by deed of January 13, 1852, for $500, all the right, title, and interest which he has or may acquire in a farm of five hundred acres, called "Broad-Acre," supposed to be worth $30,000. Smith is not in possession, but has a strong case, both in equity and law, and is suing vigorously for the estate. The suit goes on for some years after the assignment, and Smith is finally cast. He thereupon appeals to a court of highest resort, and is there defeated. His rights in Broad-Acre dwindle down to nil. His title is utterly lost and worthless, and he dies. Twenty-one years after his death and twenty-five years after the date of his deed to Brown the owner of Broad-Acre (we may call him Uncle Sam), having some generous recollections of Smith and affection for Smith's heirs, makes a grant of Broad-Acre to these heirs, neither mentioning, thinking of, or having any concern for Brown. Can there be a doubt in the mind of any lawyer as to how the heirs of Smith take Broad-Acre? They take by purchase, and not by descent. Brown bought on speculation, for

$500, what, if he had succeeded, would have been worth $30,000. He got what he bought--that is to say, he got Smith's right-which, instead of proving to be Broad-Acre, proved to be nil. Uncle Sam's grant could not and was not intended to avail him. It has only been recently, since the Supreme Court of the United States rendered a decision which very pointedly illustrates the distinction between title by descent and by purchase.

In the case of Wallach's Heirs v. Van Reswick (92 U. S., 202) the land of the ancestor of the plaintiff had been confiscated because of his participation with the Confederates in the late civil war. Supposing that the confiscation could affect only his life estate, the ancestor had conveyed all his title after death to Van Reswick by deed for full consideration. The question before the court was whether this deed was valid, or else whether the heirs did not take the estate in remainder against the deed by operation of the law of coufiscation. The confisca tion act of July 17, 1862, construed in conjunction with the resolution of the same date, declaring that "no proceedings under said act should be so construed as to work a forfeiture of the real estate of the offender beyond his natural life," was held by the court, while operating as a divestment of all possible estate of the offender in his real estate, yet to take effect as a grant of the estate in remainder to the heirs, and to confer upon them by purchase what they could not under the law of confiscation derive by descent from their ancestor. In that case, by force of an act of Congress, the ancestor had lost all right in certain estates, and Congress had by another act given it to his heirs. The Supreme Court held not only that the heirs took the estate, but that they took it in their own right, unaffected by and as against the deed of their ancestor-that is to say, they took it by purchase. Of course this case of Wallach's Heirs v. Van Reswick has no other application to the case at bar than as illustrating the principle I am discussing.

In the ease at bar I hold that the title of the heirs to the patent granted by the special act of June 11, 1878, is in the nature of a title by purchase, and is not affected by the Barton assignment. I will sign a decree substantially in accordance with the prayer of the cross bill of the administrator.

First claim of Hollingsworth's horse-raks patent of June 11, 167, Held anticipated by Hollingsworth's prior patent of February 2, 1-64.

2. ESTOPPEL.

Where a patented claimed a certa, & esinette, and upon rejection by the Patent Office erased the claim, Held that he was estopped from afterward assert