ion can be carried ont: Smith·.v. Smith,13N. B. R. 500. In II majority of cases such apportionment of costs is just and equitable. When applied here, as befole remarked, a considerable balance of joint estate is left for distribution. That the percentage to creditors may be inconsiderable is unimportant. The register will therefore deduct the costs and expenses as herein indicated, distributing the balance of joint assets to joint creditors, and of separate assets to separate creditors. It is proper to say that circuit Judge McKENNAN, who sat with the district judge, concurs in this opinion.
and others v.
June 27, 1882.)
(Circuit Oourt, S. D. Ne'IJJ York.
PATENTS FOR INVENTlONS-RErSllUE":':'WAl'lT OF NOVELTY.
Where the form ,of a chair seat was old, the material used old, and the method of imparting the form to the material was old, the reillSue was Of any patentable novelty. .
Gifford et Gifford, for complainants. Foster; Wentworth et Foster, for defendants.
WALLACE, C. J. This action is,brought to restrain the infringement of reissued letters patent No. 9,094, dated February 24, 1880, granted to the assignees of George Gardaer for an inprovement in chair seats.' The reissue contains two claims, of which the second only need .be stated'. which is: "A chair seat made of laminm of wood glued together, with the grains in one layer 'crqssing those of the next. concave on the upper surface, convex on the'lower surface, and perforated, as a new article of manufacture, substantially as set forth." The original patent was granted to Gardner May 21, 1872, and contained but a single claim, as follows: ",As a new article of manufacture, a chair seat constructed of veneers of wood, with the grain running crosswise of each other and glued together, all substantially as set forth, and for the purpose specified." This patent has been twice reissued, the first reissue bearing date July 4, The first reissue has been before this court upon a motion fora preliminary injunction founded upon it, and it was decided by'Judge Blatchford upon that occllo!liQJ:1 that none of the claims oftha.t reissue were.
valid except the sixth, which was not in comroversy,.and therefore was not considered. . The second claim -of that reissue was as follows: "As a new article of manufacture, a bottom for a lleat frame constructed d two or more veneers or thin layers of wood, with the grain of one layer crossing that of the other, said layers being secured together by an adhesive substance, and having perforations formed therein for the purpose of ventilation or ornamentation, sub. stantially as set forth." On that occasion Judge Blatchford held that the claim of the original patent was anticipated by a patent granted to John K. Mayo, one of the present December 2G, 1865, and reissued to him and two others, August 18, 1868, in eight divisions. This patent was for an improvement in the manufacture of the material, which consisted in cementing together a number of scales or veneers of wood with the grain of the successive pieces running crosswise or to fOrtna firm material adapted for the construction of various articles, including chairs and settees: In Division E of the reissue the specification states: "In the chair, figure 2, t}le bottom, B, may be formed of flexible material made up by the union of two or more thin layers of 'Wood having the grain crossed or diversified in direction and united by suitable cement." The specification also states that "by adopting the well· known process of wet and dry heating in the course of manufacture the several scales of wood may be brougl;lt to such a state of pliabilityas to assume any.desiredAormby comptession in a matrix or upon formers." Upon to Judge Blatchford likewise held that there was no patentable novelty iIii the second claim oLthe first reissue of·Gardnel"s patent, in view of the patents prior to Gardner's-one to Tice and one to Cochrwne-for perforated chair seats of metal or gutta percha. n-follows, therefore, that the only question notJieretofore decided by this court and now open, relating to the present reissue, is whether the concavity of fdrm which is an element of the new claim in this reissue will support the patent. Chair bottoms made of.. board, and softened by steam a.nd pressed to a concave shape, in is; mould,so that the form of the seat will conform, to'tbe shape of the person W.hOi may occupy it, are shown in Bellowsj'bearing date March 15, the letters patent issued 1859. So, also, the concave 01' dishing fo:t;m.of chair-seats had been adopted long before Gardner's 'patent in ordinary chair seats. In the specifioatiol'jl of the present reissue the> inventor states tha.t he does not lay any ola.imto the veneers crossing eaoh othlllr; and glued to· gether"as these have been usedfor various purpbs6s; andha;le beoome
G:A,BDNEB 11. HlllRZ.
public property, and .that he does',not claim -the pressingof' chair seat in the concave foi'm by dies. . -i . ' If there was no patentable novelty in using the perforati<>ns of 'the metal or gutta-percha. chair seats in the veneer seats, by Gardner, neither can there seem to be any in employing a well·known form of chair seat in his seat.:As it had been pointed out by Mayo that the material used is pliable, and can be pressed into any desired form, and as the reissue disclaims the pressing of a chair seat in a concave form, and as chair seats had been so formed, it is difficult to see how there was any invention in Gardner's chair seat. :Gardner merely applied a process that was old to a material that was old to obtain an old form. Considered as a combination it is hardly possi. sible to believe that the perforations or the concavity performed any new functions in the Gar4ner seat. All- '. ingenious theory has been presented, to the effect that the perforations and concavity co-operate in Gardner's seat to vrltrping and curling of the material used. ,If this is true, the same elements were oombined in tlle chair back, and performed there the same functions performed in the Gardner seat. It mil.y thll-fthe Gardner Jeat ismechanicallya better seat than any which preceded It, but his improvement is not a patentable one. It is strenuously insisted that the popularity and succesi, aohieved by tlleGtitdner seat beyond those: of his predecessors affords cogent evidence both of the utility and patentable novelty of his'invention;. The answer to this argument-isihatthe success of his sEla.t isproblJ,blj due' to a feature which is not suggested iu,the original tha.t is, itsa.daptability for nse bJ unskilled workmen. His seats a8 now made can be fitted withont'mechanical. skill to a; bottomless chair, and are largely used to repair chairs in which the original seats have ,been worn out; and'oan'beso tlsed without a,ny speoia;l skill; They ,are also largely'aokt. to chair 'nianufaoturers; they can be easily adapted,t& ohaitSl·of difJeren:tsizesand seats of different forms. seat described in patent. and shown in 'thed't'liwirigsdid notprBcticallyLposs&B'S this 'characteristic of -adaptability,: but was a fritme seat which (lbllbf'only befitted to a. chair by a. skilled laborer.' Such: It· chair gea.t 2:Woul<I fail to meet the pecUliar ·wantwhich ·the present chair Considered 'as a new .artieleofmanufaoture; if·,the c<nnplaioo.li:t$" thair 'seat· has no frame,. 'and: ita' novelty· atrd· utility :.collsiftin: its ada.ptability to be sold separate from.·'the iratneandto be l'6adily.ap.
494 plied ,oyanypersorr :to 'any chair; then the reissue is for a different invention than that disclosed in the. original patent. In conclusion, in view of the former decision of this court the complainants can only succeed,upon the theory that by imparting a concave form to his chair' seat he has impart,ed sufficient, patentable novelty to his article to sustain a' patent; and this when such a form of chair seat was old, the material used old, and the method of imparting the form to the material was old. This theory cannot stand. ' The bill must be difimi'8sed.
(O'u-cult Oourt,8. D. N61JJ, York.
.Tune 28, 1882.)
PJl:RlI'OltMIN'G DIFFERENT', FUNCTIONS.
Where, the dtjviceain "the hod elevator patented by defendant are not the equi,valents the complainant's, butJ?erform a different fq.nction, there is DO infringement .of I?laint,itf's patent. , ..
Kitchen d; Brown, for complainant. Frost d; Co., for defendant. WALLAOE, C. J. Themst claim of the letters patent No. 95;262, .granted September 28, 1869, to Thomas M. Pelham for an improved hod elevator, 'is in controversy,inthis action. Tnatclaim. reads as ;follows:' "A, hod-elQJ'iating platform arranged to support the hods by the shanks at the edgespn the bottom or, floor, and by leaning the under side of the top and' the upperpai't of the shanks against notch. bars, substantially as specified.." The invention relates. to improvements, ip hod-elevating platforms '!luoh as are used by builders;for ele·vatingand returning the hods oontaining bricks, mortar, etc., and has for its object to provide'ian a,rrlJ,ngement whereby the persons who take the hod from the platform after.it is elevated may do so with,out being required to stepon'theplatform in shouldering the hod. The French patent of March, 1860, granted to George Johnson, of .London,describel\ a hod Qlevator ha.ving the, same purpose as, Pelham's device, and soconstructedth!ltthe theplatf.orm is elevated, can beremo.ved froJ;ll thep1atforxn by the workman without him to step qpon the, platforIJl., . In view of this Fren6h 'J2atent,. the e.omplaiuant'sp8ltent is to, be ,limited so as "to