Lexis Nexis - Case Brief

Not a Lexis Advance subscriber? Try it out for free.

Law School Case Brief

Elizabeth v. Pavement Co. - 97 U.S. 126 (1877)


It is sometimes said that an inventor acquires an undue advantage over the public by delaying to take out a patent, inasmuch as he thereby preserves the monopoly to himself for a longer period than is allowed by the policy of the law; but this cannot be said with justice when the delay is occasioned by a bona fide effort to bring his invention to perfection, or to ascertain whether it will answer the purpose intended. His monopoly only continues for the allotted period, in any event; and it is the interest of the public, as well as himself, that the invention should be perfect and properly tested, before a patent is granted for it. Any attempt to use it for a profit, and not by way of experiment, for a longer period than two years before the application, would deprive the inventor of his right to a patent.


Plaintiff Samuel Nicholson obtained a patent on his invention which consisted of providing a process or mode of constructing wooden block pavements upon a foundation along a street or roadway with facility, cheapness, and accuracy. Alleging that the defendant city of Elizabeth infringed on the his patent by laying down wooden pavements in the city of Elizabeth, New Jersey, which was constructed in substantial conformity with the process patented, Nicholson instituted a complaint against the defendant. The defendants answered in due course, admitting that they had constructed, and were still constructing, wooden pavements in Elizabeth, but alleging that they were constructed in accordance with a patent granted to John W. Brocklebank and Charles Trainer, dated January 12, 1869, and denied that it infringed upon the complainant. Furthermore, the defendants asserted that the alleged invention of Nicholson was in public use, with his consent and allowance, for six years before he applied for a patent, on a certain avenue in Boston called the Mill-dam and contended that said public use worked an abandonment of the pretended invention.


Was the invention of Nicholson in public use, within the meaning of patent law, for six years before he applied for a patent?




The Supreme Court of the United States found that the records show that Nicholson did not intend to abandon his right to a patent. To determine this question, it was necessary to examine the circumstances under which this pavement was put down, and the object and purpose that Nicholson had in view. The pavement on a certain avenue in Boston called Mill-dam was constructed by Nicholson himself in order to test its qualities. The Court noted that the road, in which it was put down, though a public road, belonged to the Boston and Roxbury Mill Corporation, which received toll for its use and Nicholson was a stockholder and treasurer of the corporation. The Court concluded that the use of an invention by the inventor himself, or of any other person under his direction, by way of experiment use of the pavement, and in order to bring the invention to perfection, has never been regarded as a public use within the meaning of patent law.  Thus, the Court affirmed the lower court's finding of infringement.

Access the full text case Not a Lexis Advance subscriber? Try it out for free.
Be Sure You're Prepared for Class