358
FEDERAL REPORTER.
where there are no counties, and their place supplied by the word "district." The following sections of the Code, providing for the selection of jurors and the formation of a jury-list by the county court from the assessment roll are of course inapplicable, as there are neither county courts nor assessment rolls in Alaska. And, besides, the act of 1879 prescribes another mode fur select,ing jurors. The first assignment of error must also be allowed. It appears from the record that the plaintiff in error, who was in close custody, was brought into court on May 22, 1885, and arraigned, when his trial was set for June 1st. On that day, and all subsequent days of the trial, down to and including the sentence, June 8th, the record only shows that the parties came by their attorneys. In case of a felony, or where corpoml punishment is involved, the defendant must be present during the trial and at the sentence; and the record should show this. But it is sufficient if his presence may be inferred from the same, and it need not be explicitly so stated at each stage of the procedure. Stephens v. People, 19 N. Y. 549; Whart. Crim. PI. & Pro §§ 540, 875; State v. Cartwright, 10 Or. 193. But it would bea strained and unreasonable inference to say that Kie was present during this trial, and at the sentence, simply because he appears to have been present at the arraignment some days before; and particularly when the record states explicitly that the parties appeared by their attorneyR each day dming the trial, and at the sentence, from which it may rather be inferred that the plaintiff in error did not appear otherwise. But from the admission of counsel on the argument, it.is morally certain that Kie was present during the trial, and that the failure of the record to show the fa9t is a mere misprision of the clerk, and therefore the district court will not be directed to set aside the verdict and grant a new trial, but only to allow the plaintiff in error to move therefor on ground; and if, on the hearing of the same. it does not satisfactorily appear from the evidence submitted therewith that he was present. to grant the same; but otherwise to deny the motion, and give judgment against him according to the act of 1875.
CELLULOID MANUF'G Co. '17. COMSTOCK
&
CHENEY Co.1
(Oircuit Oourt,
n.
Oonnecticut.
April 24, 1886.)
1.
PATENTS FOR INVENTIONS-WHAT IS PATENTAELE.
It has always been the law that a patentable invention. although new and useful, must be the result of something more than and different from mechanical skill. ,The existence of novelty and utility in a patented thing haa been potent in by Charles C. Linthicum, Esq., oftha Chicago bar.'
2.
SAME-INVENTION-UTILITY AND NOVELTY AS EVIDENCE OF.
1 Edited
CELLULOID MANUF'G CO. ". COMSTOCK &: CHENEY CO.
359
the determination of the question of its patentability. McOormick v. Seymour, 2 Blatchf. 240; Furbush v. Oook, 2 Fisher, 288; Middltton Tool Vo.v. Judd, 8 Fisher, 141.
8.
SAME-INVENTION-EvIDENCE INDEPENDENT OF UTILITY ARD NOVELTY NOW REQUIRED.
The decision in Hollisterv. Benedict & Burnham Manufg 00.,113 U. S. 59, S. C. 5 Sup. Ct. Rep. 717, makes independent evidence of the existence of inventive skill, apart from inferences of such existence which may be drawn from novelty and utility, to be of greater importance than has been understood heretofore.
4.
SAME-HYATT PATENT-CELLULOID COVERING FOR PIANO KEYS.
The question of patentability in Hyatt's invention again considered, and the patent sustained.
5.
SAME-HYATT'S INVENTIO:N.
There was the creative faculty of invention in the abandonment of the ineffectual and mechanical attempt to make single celluloid keys in imitation of ivory single keys, and in the conception of the idea of covering a whole key board with a single celluloid sheet. ·
6.
SAME-PRACTICE-SUSPENDING ACCOUNTING.
The patent in suit havinl?' been declared void for want of novelty by another court, (Celluloid 1l1anuf g Co. v. Tower, 26 Fed. Rep. 451,) from which decision a notice of appeal to the supreme court had been given, a stay of the ar.counting was asked in this case; but as the facts in this case had features not brought out in the other case, held, that there was no adequate reason for a stay of the accounting.
Motion for Rehearing. The former opinion was rendered July 31, 1884, and is reported in 21 Fed. Rep. 313. The important ground of the motion was that since the date of the former opinion the supreme court of the United States had, by judicial authority, in Hollister v. Benedict et Burnham Manufg Co., 113 U. B. 59, S. C. 5 Sup. Ct. Rep. 717, and Thompson v. Boisselier, 114 U. S. 1, S. C. 5 Sup.{)t. Rep. 1042, so far changed the law of the land governing reissues as that the claimed invention purported to have been secured by the letters patent in suit is excluded from claims to patentability. John K. Beach and John S. B.each, for the motion. Frederick H. Betts, against the motion. SHIPMAN, J. This is an application by the defendant in the aboveentitled case for a rehearing. The hearing upon the application was considered to be practically a rehearing or reargument of the question of patentability. The facts were substantially stated in the opinion of the court in 21 Fed. Rep. 313. rrhe important ground for a rehearing is stated in the application as follows: "That since said interlocutory order and decree was passed the law of the land governing the question of patentability of inventions has been so far changed, under the judicial authority of the supreme court of the United States, as that the claimed invention purported to have been secured by the letters patent in suit is excluded from claims to patentability. The opinion of this court was rendered July 31,1884. The decisions of the supreme court to which reference is made are lIollisterv. Benedict et Burnham Manuj'g Co., 113 U. S. 59, S. C. 5 Sup. Ct.