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Opinion of the Court.

“ The heating apparatus which I have arranged for thus effecting the softening the surface of the asphalt roadways is represented on the drawing annexed, in longitudinal and transverse sections, Figs. 1 and 2. It is composed of a box body, the sides A, A, B, B, of which are perforated throughout, and the bottom C, whereof is formed a grating, below which there is a metal plate, I), to radiate the heat over the surface of the asphalt. Said plate D is movable to allow for the withdrawal of cinders. The box is mounted upon the wheels E, the axes o whereof are adjustable upon supports a, the elevation of which in guides b can be varied to augment or diminish the distance of the box to the road way. A handle, F, serves to maneuver the car over the pavement. This system, especially applicable for streets of compressed asphalt, can be equally employed to repair and recharge streets of bitumen.

“Resumé:

“I claim as my invention my system for reparation and recharge of asphalt roadways, presenting as distinctive characteristics the points following:

“1st. The softening of the upper surface of the asphalt layer at the part to be repaired, and the removal of such upper surface by means of a toothed scraper which striates the part remaining

“2d. Recharging, by the addition upon the surface thus softened, of an asphalt layer of convenient thickness, which is stamped by the usual means.

"3d. The movable furnace which I have combined to such end, according to the conditions described and represented."

The similarity, if not identity, of the patents is manifest, and it would seem unnecessary to enlarge upon their resemblance. They are both methods of repairing asphalt roadways; they both apply heat to the spot to be repaireil ; the old material is removed in the Crochet patent; in the Perkins patent it is reduced to the state in which it was originally laid, then agitated and mixed with new inaterial. But this agitation and mixing of old and new material is not necessary to the method. It

may be advisable to do, or not to do, it witness testified. But further, the Perkins patent calls for a heating of the surround

Opinion of the Court.

ing edges of the spot to be repaired, to make continuity between the spot repaired and the surrounding pavement. The Crochet patent has not this detail in words, but it is clearly implied. Describing the prior art, the Crochet patent says: “. the operator generally delimits with a pick the part which is to be replaced and takes therefrom the asphalt; but it is rare that this operation has not for consequence the starting of the adjacent portions which are sound, swelling them up in such wise that at the end of a little while it is necessary to repair them in their turn." His method, he says, “suppresses such inconveniences,” and the repeated passing of the heating apparatus over the pavement has the effect that the new coat forms with the old “ a thickness without break in continuity, and it does not at all impair the neighboring portions.” Surely, considering the method of this patent alone, it did not require the exercise of invention to pass to or conceive the Perkins method. Besides, that conception had the aid of other publications. In some of them the application of heat is mentioned as necessary in the original construction of asphalt pavements and also in their repair. In a work entitled “ Asphalt, its Origin, its Preparation and its Application,” by Leon Malo, published in Paris in 1888, the repair of pavements after excavations and deteriorations was described. In making excavations two precautions were recommended, and the second consisted, the author said

“In heating the edge rims of the asphalted bed which limit (i. e., define) the whole trench before pouring in the hot powder destined to repair the part lacking.”

And again, as to deteriorations :

“The wheels of vehicles encounter the disintegrated parts, digging there a hole which-if it be not promptly repaired finishes by deepening itself as far as the beton. The sole remedy for this evil is to remove all the bad part and replace it by new asphalt, taking care therein to heat the edges of the sound portion so as to obtain a perfect soldering, as we have explained a little further back.”

The counsel claim, however, that the Perkins “method is characterized by a new and useful way of applying heat to the

Opinion of the Court.

pavement, to wit, by sending a flame blast into direct contact with the pavement surface," and that the Crochet patent had no suggestion of that, and besides the Crochet process applied to compressed asphalt roadways, which was a different asphalt roadway than that to which the Perkins method was intended to apply. And upon the difference in the asphalt, counsel bas dwelt long and interestingly, but the argument finally comes to a dependence upon the fact that the compressed asphalt of the Crochet patent disintegrates and crumbles, and if overheated becomes as inert as sand; whereas the asphalt of the Perkins patent melts under the action of heat and has “a peculiar property or susceptibility,' namely, that when its surface is subjected constantly to a lively beat, the exposed material automatically covers itself with a thin, protecting shield, and merely melts and softens beneath that shield.” The answer to the contentions is that given by the Circuit Court of Appeals; the patent does not support them. Before the time of either patent the world knew that heat disintegrated some things and melted others, and we cannot concede invention to the thought that that might be true of different kinds of asphalt. Indeed, even in the face of the grave testimony contained in this record given by unquestionably expert men, we find it also difficult to concede that it was an exertion of invention to apply beat to the edges of an excavation to make a bond between the old and the new material. To devise an instrument to do that well and quickly might be invention, and that Perkins achieved by his apparatus patent. To allow him more under the facts of this record would be to give him a monopoly of the machine and of that which the machine can do. And this is an answer to the contention based upon the peculiar property of American asphalt to interpose a shield against a blasting heat to protect itself from destruction, a virtue in American asphalt, no doubt. If it is a virtue resulting from a peculiar application of heat, there is nothing in the record to show that Perkins was aware of it. He certainly did not reveal it in the specifications of his patent nor describe it as part of his method. His apparatus, it is true, is provided with burners by which blasts of heat may be projected against the pavement. But his method is independ

Opinion of the Court.

ent of his apparatus. He says in his patent: “The heating of the surface may be accomplished in various ways and by means of various forms of apparatus, and while I have herein shown but one form for accomplishing the result, yet I would have it understood that I do not limit myself to any particular form of apparatus for carrying out my invention.”

And what is claimed is, as we have seen, “the subjecting the spot to be repaired to heat.”

In further answer to the contention we may quote the Circuit Court of Appeals as follows:

“Another objection to the proposed limitation of the claim by making it read a blast of heat,' or 'a strong blast of heat,' in lieu of the unqualified word 'heat, is in the fact that the third claim, which contained the additional words, was withdrawn by the patentee upon a ruling or declaration of the Patent Office that the first and third claims were the same in substance and could not both be permitted to remain in the case. That was not merely a casual expression of opinion by an examiner, but was in effect a requirement that one or the other of the claims be withdrawn, and no reason is perceived for not applying the ordinary rule. Having voluntarily abandoned the claim for a method limited to the use of a blast of heat, the patentee or his assignee may not now insist that a broad claim, containing no suggestion of such intention, shall nevertheless be subjected by construction to the same restriction. This point, in view of the reservation already considered, is unimportant and night be passed, but it is to be observed that if the third claim was withdrawn by mistake, a correction should have been sought in the Patent Office, either by a surrender and reissue, or possibly by a new application. It is not within the rightful power of the courts to enlarge or restrict the scope of patents which by mistake were issued in terms too narrow, or too broad to cover the invention, however manifest the fact and extent of the mistake may be shown to have been."

Decree affirmed.

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Statement of the Case.

MIDWAY COMPANY v. EATON.

ERROR TO THE SUPREME COURT OF THE STATE OF MINNESOTA.

No. 80. Argue 1 December 4, 5, 1901.--Decided January 13, 1902.

Under the act of July 17, 1854, c. 83, 10 Stat. 304, Sioux half-breed certifi

cates were issued to Orillie Stram, a female half-breed, authorizing her to select and take one hundred and sixty acres of the public lands of the United States, of the classes mentioned in said act. In June, 1883, she, through Eaton, ler attorney in fact, applied at the local land office to locate the same on public lands of the United States, in that district, then unsurveyed, and filed a diagram of the desired lands sufficient to designate them. Those lands were not reserved by the Government. Subsequently they were surveyed, and the scrip was located upon them, and the locations were allowed, and certificates of entry were issued. In 1886, Orillie Stram and her husband conveyed seven ninths of the land to Eaton, the defendant in error. In 1889, an opposing claim to the land having been set up, the Secretary of the Interior held, for reasons stated in the opinion of this court in this case, that the opposing claimants had no valid claim to the lands; that the improvements made upon the land when it was unsurveyed, not having been made under the personal supervision of Orillie Stram, she had not had the personal contact with the land required by law; that the power given to Eaton to locate the land, and the power given to sell it, as they operated as an assignment of the scrip, were in violation of the act of July 17, 1854, and that it followed that the entry of the lands was not for the benefit of Orillie Stram ; that the lúcation and adjustment of the scrip to the lands were ineffectual ; thắt Orillie Stram had no power to alienate or contract for the alienation of the lands, before location of the scrip, and that the lands were still public lands and open to entry. This was an action to quiet the title, the plaintiff in error claining adversely to Eaton. The scrip locations were adjudged by the district court avd by the Supreme Court of the State of Minnesota to be valid. This court sustains that judgment.

Tuus is an action to quiet title, and was brought in the district court in the eleventh judicial district, county of St. Louis, State of Minnesota.

The plaintiff in error claims title under a United States patent issued to its grantor, one Frank Hicks, upon a homestead settlement. The defendants in error claim under locations of what is commonly known as “ Sioux balf-breed scrip," issued under

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