MARCHAND V. EMKEN.
as the result of a similar plentiful injection of water. through a nozzle undur the vessel. He therefore contracted with the Atlantic City Water-works Company to lay pipes and hose to the schooner, and to furnish him water through the pipes. The ends of these pipes were thrnst into the sand under the vessel, to the depth of seven or eight feet, and water was let into the hose from the city bydrant for four days from May 24th to May 27th. The consequence was that the sand under the vessel was in a semi-fluid state, the vessel sank some feet, and if there was any wreckage it disappeared. 'l'he use of the water was objected to by the wrecking company, and was discontinued. On May 24th the log-book says that the sand was cut out about 30 feet, and the vessel was moved nine inches. The log of May 26th says as follows:
. "8 P. M. Vessel started to roll, rolling slightly tor about an for the first time since she came ashore. Rolling caused by the three streams of water amid-ships. * * * Moved altogether this tide 15 feet."
On June 11th the vessel was got off from the beach. As the court is permitted to avail itself of common knowledge in regard to matters of science, (Brown v. Piper, 91 U. S. 37,) and by that knowledge of the state of the art to define the scope of the patent, such knowledge in regard to the use of a jet of water through a pipe and nozzle, for the purpose of lowering piles into sandyfoundations, and of removing sandy obstructions, shows that the defendant did notbing except what had .been in frequent use si'nce 1860, and did not infringe the patent. The bill is dismissed.
(Cireuit Court, 8. D. New York. February 18, 1886.)
PATE;NTS FOR INVENTIONS-MANUFACTURE OF HYDROGEN PEROXIDE.
The-first claim of letters patent No. 273,569, of March 6,1883, for an improvement in the manufacture of hydrogin peroxide, is void for want of patentable novelty.
SAME-SUBSTITUTION OF MACHINE FOR HAND POWER.
It does not constitute invention to stir, by a well-known and simple mechanical device, a liquid which had before been stirred by hand; and hence the mere substitution of a revolving screw, driven from a power shaft, for paddles operated by hand, for stirring such liquid, is not patentable.
In Equity. B. F. Lee and W. H. L. Lee, for complainant. Marshall P. Stafford, for defendant. COXE, J. The complainant is the owner of letters patent No. 273,·
by Charles C. Linthicum, Esq., of the Chicago bar.
569, granted March 6, 1883, for an improvement in the manufacture of hydrogen peroxide. The claim in controversy is as follows:
"(I) '.rhe method of making hydrogen peroxide by cooling the acid solution, imparting thereto a continuous movement of rotation, as well in vertical as in horizontal planes,-such, for example, as imparted by a revolving screw in a receptacle,-and adding to said acid solution the binoxide in small quantities, while maintaining the low temperature, and the rotary or eddying movements, substantially as described."
The defenses are lack of noveIty and invention, and non-infringeulent. The invention, as stated in the specification, relates to the manufacture of hydrogen peroxide, or oxygenated water, by the addition of barillm, mixed with water, to an acid; and it consists in imparting to the acid a movement of rotation, the time required for chemical reaction being thereby lessened, while the reaction itself is more complete. To effectuate this purpose the specification describes and the drawing illustrates an apparatus consisting of a caldron surrounded by a jacketing vessel which contains the cooling medium, and an automatic stirrer provided with helicoidal blades, and suspended so as to revolve near the bottom of the kettle. The claim is for this process of making hydrogen peroxide. The application was three times rejected, and was finally allowed by the examiners-inchief in a qualifiEl'd form, upon the theory that there was, as to' this particular liquid, somet,hing magical in the motion imparted by a screw. It is not pretended that the complainant discovered hydrogen peroxide, or the method of adding barium mixed with water, from time to time, to the diluted acid, or the necessity for stirring or agitating the liquid. Neither did he invent the obliquely bladed s(',rew, the hemispherical receptacle, the jacketing vessel, or any part of the apparatus described in the specification. All this was old and well known. The patent itself illustrates how extremely circumscribed was the theater of invention. This is demonstrated by placing side by side t'wo statements taken from the specification, the first describing the prior process, and the second the patented process.
"Heretofore hydrogen peroxide has been made by adding the barium or calcium binoxide, mixed with water, to the diluted acid; the binoxide being addf'd fmm time to time in small quantities, the vessel in which the operation is conducted being set in a refrigerating medium, and the liquid being agitated or stirred to facilitate the reaction. The stirring has been llerformed by hand." , "The [jacketing.! vessel, B, being filled with the cooling medium, the proper qua.ntities of acid and water are placed in the receptacle, A. The screw. C, is put in motion, and the binoxide of barium or calcium, in the state of a more or less thick emulsion or milk, is added in small quantities. The revolving screw imparts a movement of rotation more or less rapid to the liquid, producing eddies therein, and constantly changing the material, and the chemical reaction takes place . very regUlarly and completely."
If -the word "machinery" were substituted for the word "hand" at the end of the first quotation, the description of the old method would answer as well for the new. The question, then, seems to be nar· I'owed down to this: Does it constitute invention to stir by a well known and simple mechanical device what had before been stirred by hand? The complainant desired to manufacture in large quantities what had before been produced chiefly in the laboratory. He knew how hydrogen peroxide had been made,-every step in the formula was familiar. A mixture that needed stirring and a vessel provided with a ,revolving stirrer were ready at his hand. He put the former into the latter. This was all. 'rhe object of agitating the liquid, while making hydrogen peroxide, is to keep the barium, which is three times as heavy as water, suspended in the acid, so that its particles may come in contact with the particles of acid. Whether they come in contact while g,oing round, rising, settling, or remaining stationary <lan make no difference. Divest the case of the air of mystery with which it is environed, and it seems simple enough. The complainaut's predecessors knew that to keep the barium up in the solution they must stir it. The complainant knew this. Unlike them, however, he manufactured on a scale large enough to make it essential to employ a power shaft. , The oar·shaped sticks which formerly went round and round by hand now go round and round by machinery. Perhaps the clearest statement of the invention, from complainant's standing.point, is found in the evidence of the witness Hedrick. He says:
"The method * · * set out in the complainant's patent * * * is based upon reactions well known in the art, and discovered by Thenard. * * * The dilute acidis given a movement which has never before been imroarted to it in the manufacture of hydrogen peroxide, and which the patentee claims as new in that art. * * * The liquid is thrown out towards the circumference of the vessel at the bottom. rises at the sides; returns to the center, and then descends, to be again thrown' out at the bottom, while at the same time it is carried round and round."
Which, being reduced to still simpler language, means that the rna· chine will stir large quantities of the liquid tnore thoroughly than the hand-worked paddles.· He who wishes the sugar and cream which he puts into his coffee to be diffused uniformly through the mixture is quite likely to stir it with a spoon. Should the same individual have occasion to provide coffee for a regiment of soldiers, he might, to save time and labor, place it in a kettle provided with a stirrer like complainant's. but to found upon such action a claim for a new process of making coffee would probably be thought absurd. The pretense that the complainant has discovered some occult and wonder.working power in the motion of a screw revolving in the bottom of a tub is not sustained by the proof. Whether the contents of the tub be oxygenated water or soap or lye or tartaric acid, the action will be the same. That rotary, eddying motions in liquid will result from the revolving screw; that the liquid will rise highest at the
periphery of the tub, and thus have the tendency, at the top, to fall towards the center,-were well-understood operations of centrifugal force. As every device, apparatus, formula, law of nature, motion, and ingredient adopted by the complainant was oldl the patent must be held invalid, unless it can be said that giving to oxygenated water a well·known rotary motion springs "from that intuitive faculty of the mind, put forth in the search of new results or new methods, creating what had not before existed, or bringing to light what lay hidden from vision." No such facnlty has been tasked in giving form to this patent. There is here no sufficient foundation upon which to rest a claim which, if construed as broadly as the complainant insists it should be, practically makes all pay tribute who stir the mixture in question by machinery; and by hand also, provided substantially the same movement can be produced by hand stirring,,-and this seems to be a disputed question upon the proof. The complainant's claim to be enrolled upon the list of inventors is based upon propositions too theoretical and visionary for acceptance. He has but caught a bubble from "the advancing wave of improvement." As the foregoing considerations must dispose of the cause, it is deemed unnecessary to consider the question of infringement. It would seem, however, in view of the fact that the claim, if upheld at all, must be confined within exceedingly narrow limits, that grave difficulties confront the complainant upon this branch of the case. 'fhe defendant uses a tub in which revolves a shaft, set with flat blades, at right angles to the shaft. The only action of the stirrer is to make the liquid go round and round. In order to produce violent agitation, he projects, from a vertical cleat fastened to the side of the tub, two horizontal boards extending nearly to tbe center. As the shaft revolves, the lower blades pass under the lower board, $l,nd the upper blades pallS between tbe boards. It would seem doubtful, at least, whether the motion thus produced is at all analogous to thnt described in the patent. It is difficult to discover that which the examiners aptly liken to the movement of the smoke ring. It can hardly be said that there is a "ring vortex" in defendant's tub. The bill is dismissed.
BOLAND V. THOMPSON.
(Oircuit Oourt, S. D. New York. February 18,1886.)
1. PATENTS FOR INVENTIONS-VOID REISSUE.
The first claim of reissued letters patent No. 9,586, granted to Claude N. Boland, February 22, 1881, for an improvement in glove sewing machines, is void; such claim not being found in the original, the application having been filed two years, two months, and eight days from the date of the original, and the rights of the public having intervened.
SAME-ExcUSE FOR DELAY IN APPLYING FOR RlllISSUE.
The patentee was a foreigner, unfamiliar with the English language, and was ignorant that the claim in controversy had been omitted from the origi· na.l patent until a fortnight before the applica.tion for the reissue. Held, that these facts were not sufficient to excuse the delay.
SAME-RIGHTS OF THE PUBLIo-DUTY OF THE COURTS.
To every patent the public is an indirect party. It is for the advantage of the whole people that all meritorious lDventions shall be protected; but it is clearly the duty of the courts to see to it that t1<1 public is not required to pay tribute for that which may be fairly considered as abandoned by the inventor. The claim in controversy was presented in the original application and twice rejected. The applicant knew of the rejection, and his solicitors acquiesced in such ruling. Held, that the proper course to secure the claim was to appeal, and that there was no such inadvertence, accident, or mistake as entitled the patentee to a reissue.
SAME-'-REMEDY FOR REJECTION BY PATENT-OFFICE, APPEAL, NOT REIBBUE.
In Equity. James A. Whitney, for complainant. W. H. L. Lee and B. F. Lee, for defendant. J. This is an equity action founded upon reissued letters patent No. 9,586, granted to Claude M. Boland, February 22, 1881, for an improvement in glove sewing machines. The original letters patent, No. 202,695, were dated April 28,1878. The application for the reissue was filed July 1, 1880, two years, two months, and eight days from the date of the original; The invention consists-in substituting, as a support for the outer feed disk, a bent arm, projecting from the upper part of the casing of the machine, for the upright or curved column resting upon the extended base of the casing; the advantage being that a free space is thus left beneath the disks, permitting material of any size to be sewed upon the machine. The original contained four claims. The reissue contains five. The four claims of the original are substantially repeated in the reissue, and a. new one added. It is this new claim, the first of the reissue, which alone is in controversy. It is in the following words:
"(1) In a sewing-machine, tbe combination of two feed disks, D, DI, arranged in horizontal position and in contact, and a bent arm, D2, which suspends and serves as a journal for the outer disk, whereby a free space is left beneath the latter, as shown and described."
The specification attached to the original application, filed by the inventor, September 22, 1877, contained a claim similar to the one just quoted. It is in these words:
Reported by Charles C. Linthicum, Esq., of the Chicago bar.