
60 U.S. 96 (____)
19 How. 96
WILLIAM H. SEYMOUR AND LAYTON S. MORGAN, PLAINTIFFS IN ERROR,
v.
CYRUS H. McCORMICK.
Supreme Court of United States.

*100 Upon these exceptions, the case came up to this court, and was argued by Mr. Harding and Mr. Stanton for the plaintiffs in error, and by Mr. Dickerson and Mr. Johnson for the defendant. There was also a brief filed by Mr. Selden for the plaintiffs in error.
*105 Mr. Justice NELSON delivered the opinion of the court.
This is a writ of error to the Circuit Court of the United States for the northern district of New York.
The suit was brought by McCormick against Seymour and Morgan, for the infringement of a patent for improvements in a reaping machine granted to the plaintiff on the 31st June, 1845. The improvements claimed to be infringed were  1st, a contrivance or combination of certain parts of the machinery described, for dividing the cut from the uncut grain; and 2d, the arrangement of the reel-post in the manner described, so as to support the reel without interfering with the cutting instrument.
In the course of the trial, a question arose upon the true construction of the second claim in the patent, which is as follows: "I claim the reversed angle of the teeth of the blade in manner described." This claim was not one of the issues in controversy, as no allegation of infringement was set forth in the declaration. But it was insisted, on the part of the defendants, that the claim or improvement was not new, but had *106 before been discovered and in public use; and that, under the ninth section of the act of Congress passed March 3, 1837, the plaintiff was not entitled to recover cost, for want of a disclaimer of the claim before suit brought; and that, if he had unreasonably neglected or delayed making the disclaimer, he was not entitled to recover at all in the case.
The ground upon which the defendants insisted this claim was not new, was, that it claimed simply the reversed angle of the teeth of the blade or cutters. The court below were of opinion, that, reading the claim with reference to the specification in which the instrument was described, it was intended to claim the reversed angle of the teeth in connection with the spear-shaped fingers arranged for the purpose of securing the grain in the operation of the cutting  the novelty of which was not denied.
The majority of the court are of opinion, that this construction of the claim cannot be maintained, and that it is simply for the reversed angle of the cutters; and that there is error, therefore, in the judgment, in allowing the plaintiff costs.
In respect to the question of unreasonable delay in making the disclaimer, as going to the whole cause of action, the court are of opinion that the granting of the patent for this improvement, together with the opinion of the court below maintaining its validity, repel any inference of unreasonable delay in correcting the claim; and that, under the circumstances, the question is one of law. This was decided in the case of the Telegraph, (15 How., 121.) The chief justice, in delivering the opinion of the court, observed that "the delay in entering it (the disclaimer) is not unreasonable, for the objectionable claim was sanctioned by the head of the office; it has been held to be valid by a circuit court, and differences of opinion in relation to it are found to exist among the justices of this court. Under such circumstances, the patentee had a right to insist upon it, and not disclaim it until the highest court to which it could be carried had pronounced its judgment."
Several other questions were raised in the case, which have been attentively considered by the court, and have been overruled, but which it cannot be important to notice at large, with one exception, which bears upon the fifteenth section of the patent act of 1836.
Bell's reaping machine was given in evidence, in pursuance of a notice under this section, with a view to disprove the novelty of one of the plaintiff's improvements; a description of it was read from "Loudon's Encyclopædia of Agriculture," published in London, England, in 1831. In addition to the description of the machine, it appeared in the work that the *107 reaper had been partially successful in September, 1828, and 1829.
It also appeared, from the evidence of Mr. Hussey, that he saw it in successful operation in the harvest of 1853.
The court was requested, on the trial, to instruct the jury, that from the facts that Bell's machine operated successfully in 1829 and in 1853, they were at liberty to infer that it had operated successfully in the intermediate period, which was refused. Without stating other grounds to justify the ruling, it is sufficient to say, that the only authority for admitting the book in evidence, is the fifteenth section of the act above mentioned. That section provides, that the defendant may plead the general issue, and give notice in writing, among other things, to defeat the patent, "that it (the improvement) had been described in some public work anterior to the supposed discovery thereof by the patentee." The work is no evidence of the facts relied on for the purpose of laying a foundation for the inference of the jury, sought be obtained.
The judgment of the court below is affirmed, with the qualification, that on the case being remitted to the court below, the taxation of costs be stricken from the record.
Mr. Justice GRIER dissented.

Order.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the northern district of New York, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause, excepting that part embracing the taxation of costs in the Circuit Court, be and the same is hereby affirmed with costs. And it is further ordered and adjudged by this court, that this cause be and the same is hereby remanded to the said Circuit Court, with directions to strike from the record the taxation of costs in this cause.
