WOONSOCKET RUBBER 00.
March 7, 1865. 97 U. S. 510. The murder with which the petitioner is charged, is alleged to have been committed on the twentysecond day of February, 1865. The supreme court of the United States say, in the Colemnn Case: "The fact that when the offense was committed for which the defendant was indicted, the state of Tennessee was in the military occupation of the United States, with a military governor at its head appointed by the President, cannot alter this conclusion. (That is that the state courts had no jurisdiction.) Tennessee was one of the insurgent states forming the organization knOWn as the confederate states, against which the war was waged. Her territory was enemy's country, and its character in this respect was not changed until long afterwards." I think'the Coleman Case is decisive of all the points made in the one under consideration, and have come to the conclusion that the motion made on behalf of the state of to quash or dismiss the writ of habeas corpus, because the facts stated in the petition are not sufficient to authorize its issuance, must be overruled. NOTE.-Upon the hearing of the petition upon its merits, it appeared that the petitioner was a federal soldier at the date of the alleged murder. 'fhe judge thereupon ordered that he be released from his imprisonment, and the order was carried into execution.
WOONSOCKET RUBBER Co. v. CANDEE and others.
(Oircuz't Oourt, D. Oonnecticut. May 19, 1885.)
PATENTS FOR INVENTIONS-TAP FOR RUBBER BOOTS-NOVELTY.
Patent No. 103,594, granted May 31, 1870, to Francis Flynn, for an improved tap for rubber boots, void for want of patentable novelty.
In Equity. B. F. Thurston, Causten Browne, and Chas. E. Mitchell, for complainant. J. S. Beach and C. R. Ingersoll, for defendant. WALLACE, J. The complainant's bill in this suit alleges infringement of the patent granted May 31, 1870, to Francis Flynn, assignor of complainant, for an improved tap for rubber boots. The answer sets up that the alleged invention was known to and used by others in this country prior to the invention of Flynn, and that there was no invention in the improvement in view of the prior state of the art. The patentee states in his specification that the improvement "consists in the construction of the double sole or tap," which on the rubber boots and shoes theretofore made "terminated abruptly where the shank begins, which is objectionable, because in walking the greatest 6train comes directly across this point, so that after a few months'
by extending the tap, B, under the shank of the boot, A, and instead of narrowing the tap abruptly at the points, b, b, rounding gradually, narrowing it down to the point, bl, as clearly shown in figure 2 of the draWing. The tap and main sole of the boot and shoe are united while in a plastic state, and then vulcanized together.· By constructing the tap in this manner the strain urought upon it at the points. b, will be partly taken up by the extension and relieved to such an extent that It will be impossible to start off the tap; besides, it will make the boot just as serviceable as one with an entire double sole, though it can be made at less cost."
wear the tap becomes started from the sale, making the boot useless." He proceeds : "It is my object to remove this objectionable feature, which l accomplish
The claim is:
"A rubber tap sole forrnbber boots, formed with a long and pointed shank, extending under the shank of the boot or shoe, said tap sole being fastened to the main sole by vulcanization, suustantially as and for the purpose described."
If the invention thus claimed is an extra rubber sale of the form and fastened to the main sale as described, without regard to the thickness of the extra sale, want of novelty is established by the proofs. Sales of this form, and fastened to the main sale in the manuer described in the specification, were made by the Hayward Rubber Company at Colchester, Connecticut, in 1865, and by the New Brunswick Rubber Company at New Brunswick, New Jersey, in 1866. The fact is not disputed that shoes like the Exhibit Hayward German Shoe were made by the Hayward Rubber Company, in 1865, and the proofs show satisfactorily that shoes like the exhibits "New Brunswick, 1866," and "New Brunswick, 1860 to 1870," were made by the New Brunswick Rubber Company in 1866 and subsequently. The extra sale on the shoes of the first two of these exhibits is of the specific form of the tap sale of the patent, and that in the shoes of the last exhibit, although rounded under the shank instead of being brought to a sharp point as in the patent, is sufficiently pointed to perform the.functions of the patented tap, and, for all practical purposes, is of the required form. '1'he complainant insists, however, that these taps are not anticipations of the patented taps, because they are not of requisite thickness, and that nothing is a tap sole, within the meaning of the patent, which is not an extra sole having a definite degree of thickness, relatively, to the main sale. In the language of the complainant's counsel, "nothing is a tap sale, within the meaning of this patent, except an extra sole, which is so heavy or stiff, relatively, to the weight or stiffness of the main sale, that, if it terminate abruptly at or about the place where the shank begins, the bending strain produced by walking will be localized there by reason of the difference of pliability between the part covered by the extra sole and the shank of the boot or shoe." In the language of complainant's expert: "Whenever in a rubber boot a difference in the thickness of the sole is such as to tend to separate the tap or break the sole, then the extension of
WOONSOOKET RUBBER 00.
the superimposed thickness on the sale to a point of rest nnder the shank, is the invention of Flynn and covered by his patent." There is nothing in the specification which, in terms or by inference, makes the thickness of the tap sale a constituent of the invention. It is there suggested that a tap is started from the main sole by the strain in walking, which comes across the place where the main sale joins the shank, and that one of the advantages of the improvement is that the tap will make the boot as serviceable as one with an entire double sole. As the strain in walking may be affected by the thickness of the main sale, as well as by that of the tap sale, and as, in any event, the thickness of the tap will only effect a difference in degree, the first of these suggestions throws no light upon the point. The other is equally indecisive, because a double sole is only an extra sale, and if it gives- additional wearing capacity to the boot, may be of any degree of thickness. The essence of the invention is in the form or shape of the tap sale, by which the objections to the old tap sale are obviated. When it is ascertained what is meant by a tap sale, as that term is addressed to those skilled in the art to which the invention appertains, it only remains to consider whether, in other respects in form and mode of fastening, the anticipating article negatives the novelty of the invention. 'fhe expert for the complainant has given a satisfactory definition of the term "tap sale," and one which is supported by the testimony of other witnesses. He states, in substance, that while there are variations in thickness, absolutely or relatively to the main sale, the tap sale must always have "sufficient thickness to form a practical additional thickness to the main sale, which will endure practical wear and service," and "add to the wearing capacity of the main sale." Applying this test to the exhibits introduced by the defendant, which have been referred to, they embody the tap sale of the patent. They are quite distinguishable from the "rough sales" cemented to the main sale, such as are shown by the exhibits known as "Carew's World's Fair." They are extra sales of sufficient thickness to impart a very sensible degree of stability to the main sale and add to the wearing capacity of the shoe. While these sales were adapted only to prevent slipping, that circumstance is not material, except to suggest a closer scrutiny of the articles in order to see if they really have features which were not designedly adopted. The exhibit "New Brunswick, 1860 to 1870," shows very clearly a practical extra sole of requisite thickness. The extra sales of the New Brunswick Rubber Company are as thick, absolutely and relatively to the main sale, as those shown in some of the boots of the complainant's manufacture, which are stamped by complainant as patented under the patent in suit. 'I'his circumstance is not controlling, but it is significant as tending to show the construction which the complainant, by its officers, has sometimes placed upon its own patent, and that the thin-
FEDERAL REPORTER. ness of the extra sole has not always been regarded by them as material. As has been stated, there is nothing in the specification to indicata that the invention is for anything but a tap sale, without regard to thickness, absolutely or relatively, to the main sale. But the proofs show that the very thing the patentee designed to remedy-the tendency of the tap to start at the place where it joins the shank-was a defect in thin sales as well as in thick, and existed in the thin extra sales which were in use, before the date of Flynn's improvement. These extra sales were no thicker than those of the "Hayward German Shoe" and the "New Brunswick, 1866," according to the testimony of complainant's witness Mr. Jaquith. Some were probably thinner. The invention was as applicable to those thin sales as to thick ones, though doubtless the defect to be remedied was more serious when thick sales were used. Referring again to the statement of the complainant's expert that the invention is found "whenever the thickness of the sole is such as to tend to separate the tap or break the sale," (the form of the patent being adopted,) it follows that it is anticipated by the thin extra sales of the form and fastened to the main sole, as shown in the exhibits mentioned. Finally, it may be said that, although Flynn's form is more advantageous when used in a thick extra sole than when it is used in a thin one, his improvement is one of degree only; and, in view of the fact that this form, as applied to thin extra sales, was old, the improvement is destitute of patentable novelty. A decree is ordered for the defendant.
LALANOE & GROSJEAN MANUF'G Co.v. UNITED STATES STAMPING Co.
(Oircuit Oourt, D. Oonnecticut. May 19, 1880. \
PATENTS FOR INVENTIONS-NOVELTY-BISCUIT-PANS.
Patent No. 96,605, for" an improved mode of uniting small biscuit-pans together in clnsters, cOllsist.ing in providing the pans with horizontal flanges and riveting them," held void for want of novelty.
In Equity. Charles E. Mitchell, for complainant. Charles R. Ingersoll, for defendant. WALLACE, J. The invention covered by the claim of the patent in suit as described in the specification "relates to an improved mode of uniting small biscuit pans together in clusters, and consists in providing the pans with horizontal flanges around the tops, and joining them together by lapping the flanges and riveting them." Biscuit