250

. FEDERAL

REPORTER.

'WonSWICK l\.[ANUF'G CO.

v.

STEIGEn.

(Circuit C"urt, N. D. Ohio, E. D. April Term, 1883.)
I.

Fon INVENTTON-USE IN FORETGN ()OUNTRY. A simple use of an invention in a foreign country, if not patented ordescribcil in an.\' printed publication, is not a bar to the olJtainin!{ of a valid patent in this country.

2.

'Where the claim of a patent is a combmatlOn claim, consisting of several elements that co-operate together to produce the device claimed, such device can only be anticipated by a prior device, having identically the same elements, or the mechanical equivalents, of those that are not used. It will not do to find a portion of these elements in oue machine, and a portion in a second, and a third, and so on, and then say that the device is anticipated. 3. SAME-PATENT No. 108,898, AND REISSUES Nos, 8,025 AND 8,02G, SUSTAINED. Letters patent No. 108,898, granted to Herman Fischer, November 1,1870, for improvements in apparatus for pumping fluid from vessels, was not anticipated by letters patent No. IOG,008, of August 2,1870, granted ALel A. Webster, and the reissnes Nos. 8,025 and 8,026 of said original patent are valirl. under Miller v, Brll88 Co. 104 U. S. 350, and reissue No. S,026 is infringed the device used by defendants, and its use should be enjoined.

In Equity. John Crowell and !ff. D. Leggett, for complainants. G. W. Shul1w'ay, for defendants. WELKER, J. This suit is bronght upon original patent No. 10S,898, granted to Herman Fischer, November 1, 1870, and on rcis,med letters patent Nos. 8,025 and 8,026, granted to the 'Vorswick Manufacturing Company, assignee of William F. Class, the inventor. All these patents pertain to apparatus for pumping fluid from vessels. The answer filed by the defendant puts in issue the validity of the reissued patents, but as they were applied for within about four months from the date of the original, the defendants did not strenuously pre!;!! tbe point of their invalidity. In examining these reissues I find nothing claimed that is not clearly shown and described in the original patent, and as the application for the reissues was filed so soon after the date of the original, I see no valid objection to the claims as allowed in the reissues, provided the same is not anticipated in the prior state of the art. The defendants have set. up as anticipating the inventions described in the patents at issue, patent granted to A. L. 'Yebster in 1870, one to J. F. Navarro, and eight other United States patents; and also foreign use of the same prior to the application for patent in this country. The foreign use was conceded by stipulation, but under the statute a simple nse of the invention abroad, if not patented or described in any printed publication, is not a bar to the obtaining of a valid patent in this country. . The ?nly device among the several patents produced worthy of canlIHleratlOn us anticipating this invention, is the one shown and de·

co. v.: STEIGER.

25i

scribed in letters· patent No. 10G,00S,of August 2, 1870, granted t.o one Abel L. Webster. ' . The Fischer patent, No. 10S,89S, has a single claim in the following words: "The combination of the screw tube, A, hollow cross-piece, E, witb valve, I, stuffing-box, C, vent tube, .8, and stop-cock, D, all constructed. to operate substantially as set forth." The device is adapted to be inserted in the bung of a barrel, or the top of a bottle, and so arranged that air or gas may be pumped through the device into the bottle or barrel, and at a point above the surface of the liquid thereiil contained, thereby producing sufficient pressure upon the liquid to force the same up through the tube within the device, and deliver it through a stop-cock at or near the end of the tube. The device has a hollow chamber surrounding this delivery-tube, through which the gas or air is pumped into the retainer, and near the top of this air-chamber is a stuffing-box, forming a secure packing around' the delivery-tube, thus permitting the upand-down adjustment of the delivery-tube. At the point ,rhere the gas or air is pumped into the retainer there is a valve to prevent the escape of gas or air after the same has been pumped into the barrel. The defendants have attempted to limit the scope of this claim to a . device that uses iii this place only such a check-valve as would open inwardly to admit the air or gas, but to close automatically against the escape of air or gas from' the inside. The defendant's expert, however, when being cross-questiollecl on this matter, testifies as follows, (D. R. 39:) "C1'Oss-question 19. I call your attention to the following passage to be fonnl! in the specification of the Fisher ·Inside of this passage is a vahe, i, so constructed as to admit a stream of air into the bottle, but nut out of it.' Is there anything in the lan!.iuage quoted, 01' in any other portion of the patent, j hat is calculated to limit this portion of the Fisher device to any specinc construction? AnS/02T. I inclined to think there is not. The valve is not described. I should say that any device that is capable of op(ming and closing this passage is all that is essential. . "Cross-qnestion 20. 'Would you consider that a device having the other essential elements of the Fisher.patent, IJut provided with an ordinary stopcock, insteau of the valve, i, said stop-COCk adapted to be manipnlated by!Jalid, wonld come within the scope of the Fisher patent, as pointed ant in the claim thereof? Answer. It is my opinion that any device capable of openiJlg and the air-passngc in the hollow cross-piece, E, in the Fisher patent, would come within the scope of the claim of said Fisher patent." Unless this Fisher patent is limited by the state of the art, I am of the opinion that the patent is not limited to a check-valve acting automatically, but any device that may be opened to permit the air or gas to be forced inwardly, and closed to prevent its escape, would fall withiil the scope of the claim, especially as admitted by the defelldftllt's expert, as the patentee did not describe any particular form :.If ndve. anLl diu not limit himself to any particular form. It will

252

EEDERAL REPORTER.

be noticed that tho claim of this patent is a combination claim consisting of several elements, that co-operate together to produce ;the device claimed. This device, then, can only be anticipated by a prior device, having identically the same elements, or the mechanical equivalents of those that are not used. It will not do to find in older devices a portion of these elements in one machine, another portion III a second machine, another in a third, and so on, and then say that this device is anticipated. The invenbr does not pretend to be tl1e original inventor of any oneof these elements. He only claims to have invented sllch an arrangement and combination of otd elements as to produce a new machine. As above remarked, if this device is found in any older one presented in the record, or at the heariQg, it is in the Webster patent above referred to. This vatent, however, shows no means of checking the escape of gases at the point where the air or gas is forced into the receptacle, and it neither show3 nor describes any stuffing-box, nor any means whatever of discharging the contents of the barrel or bottle, without also discharging the gases lying above the liquid in tl1e receptacle. It therefore does not possess the elements of the Fischer invention, and does not anticipate it. In fact, the Wcbster patent does not seem to show or describe a working practical device. It has some of the elements of the Fischer patent, but it lacks just thJse elements that made the Fischer patont a practical and successful' machine. I mnst, therefore, conclude that tl16 Fischer p:ttent, No. 108,SOS, is not anticipated, and is, therefore, valid. The defendant's device being constructed substantially in all respects like the Fischer invention, having all the elements of the Fischer claim combineJ, and operating in substantially the same way. there can be no doubt as to tho infringement. The two reissues involved in this suit are the reissues of original patent No. lUl,656. It seems, from the certified file contents from the patent-office 1:hat when the applications for the reissue of this patent were filed, it was sought to obtain the matter in a single reissue.; but the patent-ollice decided that the ol-i.;:;illal patent contained lllventions, and that they should be divided; hence, by the reqUlrements of the office, application was mn-de for reissue in two divisions, A and B. One of these divisions, No. 8,026, was for an impro\"ement upon the device patented by Fischer, the improvement. consisting iu a more simple and effective packing than secured by the Fischer device. This patent bas three cln-ims, all of which are involved in this suit. If this reissue is valid, there is no question about the infringement, for the reason that the defendants use a device embracing all the elements of each one of the claims. The references cited against this patent do not seem to embrace its feat· ures to any eonsiderable extent. The combination of no one of the claims is shown in any of the older devices cited. It is true, the claims in this reissue are some·

M'FARLAND

v.

SELBY SMELTING & LEAD (l0.

253

what broader than the claims in the original patent, but as the patentee did 1;ot sleep upon his rights, but returned his original ptltent to the patent-office inside of foal' months from the time it was granted, and askerl for a reissue with these claims, I think that the reissue with its broader claims is valid, under .1!iller v. Brass Co. 104 U. S. 350, and all of the later decisions pertaining to the subject by the supreme court. Reissue No. 8,025 is the other division of original patent No. 101,656, and is for a pumping d3vice intended to inject air into a receiver. It doe3 not appear from the record that this patent has been infringed by the defendant. A decree may therefore be entered for the complainant on original patent No. 10B,8DS, and reissueJ patent No. 8,0;30, and for the deto fendant in reissue patent No. S,025, and the case will a master for the statement of accuunt. '.

MoFA.RLAND

and others v.

SELDY SMELTING

&

LEAD

Co.

! nistrict Court, D. c..'Zlijornia. :May 28. 1883.\
1.

A small stern-Wheeler, after giving the usual prelimin'lry signal, a long whIstle, WI\8 moving sloWly and ca: efnlly out fro:n her slip, ahout 2 o'clock in the whe:l her stern eame into cOllision. about 90 feet from the wharf, with a steamer tl1:It was pr,)c"edin" at a m .derate rate of speed, hut With n IOJ feet of the wharf. ll",d, that the steamer W,IS in fault in procet'ding so near to the wharf, and in not noticing the sh'ual of the stern-wheeler and aVOIding the collision.

Too

NElut \VIIARF-I"AUT,T.

2.

RUlE-FAILURE OF SMALL STEUN- ·WHEELER TO HAVE LOOKOUT AT STERN -D.UIAGE3.

It wa3 not l\ fault on the part of the stern-wheeler not to have a lookout at her slem, and, as no other fault is allcgeJ, the whole damage for the c,ollisioll must be borne uy the steamer. .

In Admiralty. lV. S. Goodfellow, for libelant. Chas. Page, for claimants. J. The facts upon which the libelant relies for a relief for a recovery are substantially as follows: On the twelfth of May, 11;82, about 2 o'clock r. n., the small stern-wheeler Pilot was slowly and carefully backing out from her berth on the north-westerly side of Jackson-street wharf, in this city, on a trip to Black Point. She had given the usual preliminary signal of her intention to come out by blowing a long whistle. She had proceeded down the slip until her storn was about 80 or 90 feet beyond or outside Jackson-street wharf, when a whistle was blown, to which bel' master at once replied by blowing bis own whistle, and ringing the bell.s to stop and reverse his engine. Defure lier stern-way was entIrely