Elastic Fabrics Co. v. Smith

delivered the opinion of the court.

For all practical purposes, except costs, the appellant was successful in the court below. While the validity of the appellee’s patent was sustained, it was a fruitless victory to him, because the patent expired before the determination of the suit, and the court found that he was not entitled to recover from the appellant either profits or damages. As the decree stands, it sustains an- expired patent, and does no more. When it was rendered against him, the appellant was left at liberty to use the patented machine in any way he chose, and- he has not been required to pay any thing for the use he made of it while the patent was in force. The appeal, therefore, presents only a moot case except as to costs.

We think the disclaimer as to the reissued patent, division B, had no effect on the costs in this case, because the question presented for decision was whether, notwithstanding that disclaimer, the other divisions of the reissue should be sustained. The statute as to costs after a disclaimer (Rev. Stat., sect. 4922), therefore, has no application to this suit, and the appeal is practically reduced to the single question whether, if the decree below should be reversed, the appellee ought to have *112 his costs in that court, and, if so, how much. No appeal lies from a mere decree respecting costs and expenses. Canter v. The American and Ocean Insurance Companies, 3 Pet. 307. As this case comes within the reason of that rule, we affirm the decree below without examining the merits.

Decree affirmed