In Bates v. Coe, 98 U.S. 31 (1878), at October Term, 1878, the original patent was issued in 1863. Mr. Justice Clifford, in delivering the opinion of the court, stated, that the answer did not set up as a defence that the invention had been in public use or on sale in this country for more than two years before the application for the patent, and that there was nothing in the record to support that proposition, if it had been well pleaded. His observation, therefore, citing Pierson v. Eagle Screw Co., 3 Story, 402, that, under the 7th section of the act of 1839, the public use or sale, in order to defeat the right of the inventor to the patent, must have been with his consent and allowance, for more than two years prior to the application, was an observation made in regard to a point not in issue or in judgment.