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City of Elizabeth v. Pavement Company

Citation. Elizabeth v. Pavement Co., 97 U.S. 126, 24 L. Ed. 1000, 7 Otto 126 (U.S. May 13, 1878)
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Brief Fact Summary.

American Nicholson Pavement Company (Plaintiff) sued the city of Elizabeth, N.J. (Defendant) for infringement of a patent for a new and improved wooden pavement.

Synopsis of Rule of Law.

Neither an inventor’s experimental use, nor anyone’s use under his direction, has ever been regarded as public use.


Nicholson (Plaintiff) had obtained a patent for a process of creating a wooden pavement and claimed that the city of Elizabeth, N.J. (Defendant) had infringed his patent. Defendant claimed that Plaintiff’s alleged invention had been in public use, with his consent and allowance, for six years on an avenue in Boston prior to his application for a patent and argued that said use constituted an abandonment of the pretended invention. Nicholson (Plaintiff) countered that the pavement in Boston was 75 feet in length and constructed at his own expense to determine its durability, and therefore did not constitute abandonment by public use, the lower courts agree, and the United States Supreme Court granted certiorari.


Has an inventor’s experimental use, or anyone’s use under his direction, ever been regarded as public use?


(Bradley, J.) No. Neither an inventor’s experimental use, nor anyone’s use under his direction, has ever been regarded as public use. In this case, Nicholson (Plaintiff) only intended the piece of pavement as an experiment, to test its usefulness and durability. If he did not voluntarily allow others to make it or use it, and did not offer it for sale for general use, Plaintiff was in control of the invention and did not lose his title to a patent. Since Plaintiff kept the invention under his own eyes and maintained his intent to obtain a patent for it, it was still an experimental use and not a public one. The patent is valid. Affirmed.


An abandonment of an invention to the public may be exhibited by the conduct of the inventor at any time. If the invention is in public use or on sale, with the inventor’s consent, at any time within one year (two years when the decision in the above case was handed down) before his application for a patent, it will be conclusive evidence of abandonment.

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