THATCHER HEATING CO.
'nch a construction, both claims of the reissue would be the same, but especially in view of the late decisions, I think that such So courSE> is not advisable, and that the claim should be declared void. The plaintiff in obtaining a reissue introduced an inexact, (,lUIID, which, if construed according to its natural meanir.g, wouln include an invention broader than the one which was made.. If such a construction should be adopted the patent would be improperly enl.arged. If on the other hand a limited construction should be given, the first claim would be substantially the same as the second, and would be superfluous. One claim in a reissue may be void without necessarily invalidating the other claims. In such case it is proper to disclaim the void claim. O'Reilly v. Morse, 15 How. 62; Schillinger v. Gtmther, 17 Blatchf. 66. In this case there has been no unreasonable neglect or delay. Whenever the plaintiff shall have satisfied the court that a proper disclaimer has been filed in the patent-office disclaiming the first claim in such manner as to claim only the invention as specified ill the second claim of the reissued patent, a decree will be entered for an injunction against the infringement of the second claim, and for an accounting of profits and damages arising under said infringement, but without costs.
TRATCHER HEATING Co. v. BURTIS and others.
(Circuit Court,8. D. New York. 1882.)
PATENTS FOR IMPROVEMENTS-WANT OF NOVELTY,
The merely advantageous bringing together of parts which do not co-operate to produce a new result, and which by their aggregation contains the advantages which resulted· before separately insevel'al structures. is not a patentable novelty.
B. F. Lee, for complainants. A. J. Todd, for defendants. WALLACE, C. J. This action involves the validity of the first and second claims of the letters patent issued to John M. Thatcher for an improvement in fire-place heaters, bearing date June 14, 1870. It is conceded that these claims are to be construed broadly, so as to cover the combination of a fire-place beater having a body projecting outwards from the mantel or frame, and a furnace-like pore tion in the chimney behind the mantel, with a fuel receptacle within
the cylinder of the heater which will preserve a supply of unignited coal while the heater is in operation, and an opening through which the magazine can be fed from above, the magazine extending to this opening. Inasmuch as the heater was old and the fuel receptacle with the described opening was old when located within an ordinary coal stove, what Thatcher accomplished was merely the advantageous location of the fuel receptacle within the fire-place heater. As the complainant's expert, Mr. Brevoort, states: "The problem Thatcher had before him. was to place this fuel magazine within the Bibb & Angee heater." It must be conceded that it was not obvious that such a fuel magazine could be advantageously employed in such a heater. Attempts h8idbeen made bYiothers to do the same thing without satisfactory results, but Thatcher's organization was a success, and immediately commended: itself to the public. But Thatcher's broad claims cannot be sustained. There may have been patentable novelty in the means he employed to adjust the parts in the new organization, but there was nOne in m.erelybringing those parts together. They did not perform any new function in the new arrangement. The fuel 'magazine does just the same work in the new structure it did in the ordinary coal-stove. All the other parts of the fire-place heater operate precisely as they would if the ordinary fuel pot were used instead of the substituted magazine. The parts do not co-operate to produce a new result. By their aggregation the new structure contains all the advantages which resided before in several structures. The new heater is therefore a better heater than any which preceded it, but it does not present a patentable combination irrespective of the means employed to adjust the several parts into efficient relations to each other. As, concededly, the claims of the patent are not to be limited to any such combination, they must be held void for want of patentable novelty. The bill is dismissed with costs.
(Di8trict Oourt, 8. D. NeIIJ) York. May 9,1882.)
COLLlSION-DUTY OF TUG AS TO SAFETY OF
Tow. Though a vessel be anchored at an improper place, a steam-tug, with a long tow upon a hawser astern, is not justified in passing her and entering a strong current, which is obviously likely to swing the tow against the vessel at anchor, if there be any other less dangerous alternative. It is the paramount duty of a tug to consult the safety of her tow, and to run no avoidable risk.
ANCHORING IN WRONG PLACE-NOT TO EXCUSE NEGLIGENCE IN STEAMER PASSING.
Where the steamer O. came to anchor from 1,000 to 1,500 feet to the westward of Governor's Island, at the mouth of the East river, when, as contended by the claimant, she was 600 to 700 feet off the port quarter of the steam-tug D., having in tow, upon a hawser 390 feet long, six tiers of canal-boats, and the tide from the East river was at the strength of the ebb, and the danger of the tow's swinging against the steamer was perceived in case the steam-tug should proceed to cross the strong ebb tide, and there being no other reason for not dropping astern than the fear that the hawsers might foul, and the steam-tug D. having three smaller tugs as helpers at her command, but the steam-tug nevertheless proceeded to cross the strong current of the ebb tide under a hard a-port wheel, but was unable in so doing to prevent the libellant's boat in the fourth tier from swinging against the steamer, whereby it was sunk, held, that the excuse given was insufficient; that the tow might and should have been taken astern; and that the steam-tug was answerable for the loss. Held, al80, that it was the duty of the steam-tug, if it was believed that the steamer O. had come to anchor at an improper and dangerous place, her steam being still up, to give danger signals before'going on, in order that tbe steamer might be notified to change her position, there being sufficient time to do so.
Benedict, Taft ct Benedict and 8. H. Valentine, for libellant. Beebe, Wilcox ct Hobbs, for claimant.
BROWN, D. J. The libel in this case was filed by the owner of the canal-boat Cecilia, to recover damages for the sinking of his boat by a collision in the afternoon of July 13, 1877, with the Spanish steamer Carolina, lying at anchor off Governor's island, at the mouth of the East river. The Cecilia was one of a tow of 28 canal-boats in charge of the steam-tug Delaware, a powerful tug of 180 feet in length, bound from New Brunswick to the Stakes above Jersey City, by way of the Kilns and the upper bay. The tow consisted of five tiers of boats, having five boats in each tier, and a sixth tier of three boats, all lashed together, and drawn by the Delaware upon hawsers 390 feet long. The entire length covered by tug and tow was about 1,180 feet. The Cecilia was the outer boat upon the port side in the fourth tier. The arrival of such tows is usually timed so as to cross the mouth of the