INTERNATIONAL TOOTH CROWN CO. TOOTH CROWN Co.
RICHMOND and others.
(Oireuit Oourt, D. Oonnecticut. February 21, 1887.)
PATENTS FOR INvENTIONS-PATENTABILITy-INvENTION.
. . An improved method of inserting and supporting artificial teeth, whereby former unsuccessful methods are altered, and a successful form of attachment supplied, is an invention a patent for which will be sustained, althoue;h the former methods, and the failure of the same, may have pointed out the way, and been utilized for perfecting the improvement. Where an application for a patent is refused, and a controversy thereupon ensues with the officials of the patent-office with respect to the same, in which the examiner suggests that instead of a reconsideration, and approval of an amended application, a new application be made, with certain 1I100difications, and a new application is accordingly filed, differing from the first in the omission of·superftuous matter, and changing tb,e description in some particulars, and a patent is thereupon granted, such new application will be as a more convenient way of prosecuting the first. and the two considered as parts of a continuous proceeding. Hence the allegation of two years' public use in contesting the patent will be referred to the date of the first application, and not the second. Where a method of making and inserting artificial tooth crowns is practiced and demonstrated for years, a mere mechanical change in such method, which has no patentable novelty in itself, is not an invention for which a patent will be sustained.
In Equity. Bill for injunction to restrain infringement of letters patent, and for accounting. Dickerson Dickerson, for complainants. J. Kimberly Beach and S. J. Gordon, for defendants. Before WALLACE and SHIPMAN, JJ·
to improvements in the dental art, all of which are alleged to be infringed by the defendants. This suit is brought for an injunction and accounting. Thefitst of the patents in snit was granted to James E. Low, March 15, 1881, upon 'an application filed December 20, 1880. The
subject is an improvement in dentistry, whereby artificial dental surfaces may be permanently fixed in the mouth in place of lost teeth, without the use of plates or other means of deriving support from the gum beneath the artificial dentition. The patentee refers in his specification to the pre-existing state of the art as follows: "Heretofore artificial teeth have invariably been supported entirely by the gum, and usually upon a plate fitted to the gum, and, in the case of upper teeth, to the roof of the mouth. Clasps or attachments to the adjacent teeth have been employed for the lower jaw to retain thj3 artificial teeth 111 proper relation to the adjacent teeth, but said attachments have never been designed or adapted to sustain the pressure upon the artificial teeth in mastication without aid from the gum. The use of plates or other methods of supporting the artificial teeth by the gum is highly objectionable, because-Fi?'st, they necessarily cover the cutaneous surfaces which health reqUires should be uncovered; second, they occupy a space within the mouth, and are uncomfortable;
The 'complainant is the owner of four patents, relating
third, they require frequent removal for the purpose of being cleansed; fourth, they accumulate offensive matter next the skin. and there:t'qrepromote disease. The use of Clasps to retain the teeth, with very small' supporting plates, hall very generally been. abandoned for the upper jaw, the injury to tho teeth by the clasp is supposed to be more objectionable than the discomfort and other disadvantages attending the use of the suction plate." He' points out the general advantages. of his invention as follows: "Alnhe.ol;>jections to the presence of artificial dentition mentioned above are ·ol;Jv.iated, J;iy iny improvement, which leaves the cutaneous surfaces uncovered. and supports the artificial dentition by its attac:qment tothe adjacent natural teeth, and the same method of attachment is equally applicable to both the upper and lower jaw." The general description of his Improved method follows: .' "A bltnd of gold. or qther suitable metal, is first prepared,and accurately qtted around the tooth 'adjacent to the vacant spacestobe.Bupplied with an artificial tooth. This band is th'rn)y secured in pllice by ce/l)ent, which effectuall.}' excludes ,water or. the fl,uids of the mouth, and.is thUs permanently attached, to the tooth, so that it canrrot be l'l\moved without an operation directly forthat·pUi'pose. It is sometimes 'sufficient to prepare one of the adjacent teeth in this way; but. generally, it is desirable to prepare the adjacent teeth qn each sid.eof the v3:cant space. It will always be advisable to do so if the vacant place is to be occupied with more than one tooth: '. The artificial block to filrthisvacantplace maycornprise one or more teeth, as the case play require. and, if desired, may 'be moulded in a single block. The lower adjacent to the gum is cut away at the back, and only descends to contact with th,e gum its front edge, so. as to prevent ap.pearance of an open space between the artifietal teeth and the gum. The artificial block is provided with protecting lugs or pins of suitable metal, and may thereby permanently be secured by screws or otherwise to the permanently fixed bands around the adjacenLfixed naturaL teeth. The small area covered by the bases of the artificial teeth. and its non-contact with or pressure upon the gum, renders the deposition of secreted or foreign matter from the food unlikely. and ,easily removable with the brush, or by water force,dunder the artificial teeth in the process of rinsing the mouth. It happens that a tooth has elongated to such an extent,that there is not space between its crown and the opposite gum for the insertion of a regular tooth, and in such a case as that I sometimes supply un artificial tlental surface, composed of one or more metallic bars, extending from one permanent tooth, to. the next. and secured at their end to the band." The specification states that the patentee does not propose to limit himself to the details' as shown in his specification and drawings, but considers that his invention includes" the permanent attachment of artificial teeth by securing them to continuous bands permanently attached to adjoining teeth supported upon natural roois, and supporting said artificial teeth bysaid attachments, without dependence upon the gum beneath said artificial tooth." The claims ofthepatentare as follows: "(1) The herein-described method of inserting and supporting artificial teeth. which consists in attaching said artificial teeth, to continuous bands fitted and cemented to the adjoining permanent tooth, whereby said artificial teeth are supported by said permanent teeth without dependence upon the gum beneath. (2).An artIficial tooth cut, away at the back, as not to pre-
INTERNATIOKAL TOOTH CROWN CO. V. RICHMOND.
sent any contact with the gU1'l.1except along its front lower edge, and supported by J;igid attachment to.:one or more adjoining permanent teeth, substantially as and for the purpose set forth. " It is entirely clear that the, invention described in the patent was not only new and useful, but was an improvement in the dental art of considerable merit. The foriner methods of supporting artificial teeth referred to in the patent were not designed to secure a permanent attachment of the artificial teeth to the natural teeth, but were intended to secure a removable attachment; the theory of many dentists being that a rigid attachment was undesirable and impracticable, as uncleanly, and also as liable to produce inflammation of the natural teeth. The methods Which,had been employed tosecnre a permanent or rigid attachment of the artificial to the natural teeth were well calculated to excite the disthist and opposition of intelligent dentists. One of these is described in an, artide:of which W. H. H. Eliot was the author, published in March, 1844, iii the American Journal of Dental Science. This describes an artifiCial: denture consisting of three teeth fastened upon a _backing of metal. The extreme.teeth,or the ones at each end of the artificial denteach with a pin. These pins are to go into holes drilled inthep'te,pared roots' of natural teeth, and in this way the denture is to be neld iriplace.· A slight bearing surface is formed by plates which are to bear ripon the smooth ends of the natural roots remaining in the gUill. This denture simply consists of teeth held in by pivots, and connected by a bar or backing of metal. Another of these methods is described in the United States patent to Benjamin J. Bing of January 23, 1871. This method consis.ts in attaching artificial teeth to metallic bars, which bars at either end are to be secured to natural teeth by forming cavities in the natural teeth, inserting the ends of the bars in the cavities, and then fillIng the cavities with gold. The objection to the nse of plates or other methods of supporting the artificial teeth by the gum are sufficiently pointed out in the patent, and the objectiotlsto methods like those of Eliot and Bing for supporting the artificial teeth' by a permanent attachrr.ent to natural teeth, or the roots of such teeth, are obvious. Where pivots are inserted in the teeth to secure a rigid attachment, as in the Eliot method, they become loosened in the process of mastication, and the teeth are liable to be split by side. wise wrench or motion. Such methods as Bing's tends to the destruction of the adjacent naturaHeeth, the strain ll.nd motion in mastication loosening the metal fillings, and requiring a: reattachment of the denture from time to time, to the increasing injury of the natural teeth. By the method of the patent, a plate is dispensed with when some natural teeth remain, and, instead of the artificial teeth being loosely clasped to the adjacent natural teeth, they are attached with strength and permanency, and are not forced into contact with the gum during the strain of mastication. By being firmly fixed upon bands Of metal secured rigidly and permanently, by cement or otherwise, npon the adjacent'natural teeth which they surround,the denture has an easy'and efficient 'bearing, the glim escapes injury, hnd the strain of mastication
is transferred to the natural teeth. When the artificial teeth employed. have their s'urfaceadjacent to the gum cut away at the back, and only descend to contact with the gum along the front edge, another advantage results; because the small area poveJ,'ed by the bases of the teeth precludes such an accumulation of food or other foreign matter between the gum and the denture as cannot be readily removed. It is not contested that Low wua the first to devise and perfect the improvement described in the patent; but it is urged that, in view of the prior state of the art, ,as described by the publications referred to, and as also described by the publications of Lintott, Scott, Fowell, and others, the improvement of Low did not involve invention. The references to the publications of Lintott, Scott, and Fowellare not of sufficient importance to require comment. Undoubtedly Low wa$ materially assisted in perfecting his invention by hiA observations of the artificial crown of Dr. Richmond, and it is, not unlikely that the invention derives its chief value from its crown. It, not have inadaptability to Use with the volved a high ordt!r of inventive faculty to work out the conception, by connecting such crown& by a bar or, bridge bearing an llJ'tificial tooth or teeth. NeveIiheless, the fact remains that Dr. Low was ;the ,first to accomplish what skillfuldentists like Dr. Rich did not believe to be practicable, and to demonstrate how the objections which were supposed to be so serious. to the method of rigid attachment could be obviated. It is not difficult, after the fact, to show by argument how simple the Mhievement was, and" by aggregating all the failures of others, to point OUt the plain and easy roa<;1 to success. This is the wisdom after the event that. often confutes inventiow, and levels it to the plane of mere mechanical skill. The ingenious argument in this case has not satisfied 1,1s that there was no invention in the improvement of Low. The defense is relied on that the invention had been in public use for more than two years before the application for the patent. The proofs show that operations were performed by Low during the latter part of the ye/:1.r 1877, in which he inserted the dentures of the patent in the mouths of patients. As the application upon which the patent was granted was, not filed until December 20, 1880, tp.e defense would be established were it not for the fact that Low had made an application ,which was filed in the patent-office January 6, 1879,which had never been abai1doned, for substantially the same invention. That application contained some matters foreign to the subject of the second application, but, so far lIB it related to the inventions covered by the claims of the patent, it did not differ from the second application, 6:1tCept in a single particular. The specifications of the patent states that non-contact of the artificial tooth or denture carried by the bridge with the gum, or the absence of pressure upon the gum, is one of the advantages ofthe invention; while it was stated in the first application to be nece!'sary "to carefully fit the base of the tooth or block to be inserted to the jaw, and, when secured, it should be so pressed down as to leave no space beneath it for the admission of food." The.statement in the first application is not inconsistent with the method of the patent, which, consists in attach-
INTERNATIONAL TOOTH CROWN CO. V. RICHMOND.
ing the artificial tooth or the denture tobahds, and supporting them by the'adjoining permanent teeth, "without dependence' upon the gum' beneath." So long as this essential feature of the invention is retained, it is quite immaterial whether the artificial dentition "is so pressed down as to leave no space beneath it for the admis3ion of food," in the language of the specification, or whether it is in positive non-contact with the gum. When the artificial denture is in non-contact with the gum, cleanliness is facilitated, and the suggestion which was first made in the second application was therefore a useful one. But it did not change the invention in essentials. Although the tooth or denture is pressed down so close to the jaw that food cannot lodge between it and the gum, it is still supported by the adjoining tooth or teeth, and not by the gum; As was stated in the first application, "the yielding surface on which it rests will readily Conform to the tooth or block, and any pain at first induced by the pressure will disappear." There is nothing to indicate that Low intended to abandon his first application. His application was refused, correspondence ensued with the patent-office, and finally Low made a personal visitto the office, had a.n interview with the examiner, and convinced the examiner that the invention which wa.s the subject of the application was meritorious and novel, and one for which he was entitled to a patent. During the controversy with the patent-office various interpolations had been made in the first application, and the examiner suggested that Low had better make a new application, and thereupon the second application was drawn up. So far as relates to the present invention, the new application differed from the first merely in omitting some superfluous matters, and in changing the description in reference to the character of the contact between the denture and the gum. There was no act on the part of Low which was equivalent to a withdrawal of his first application, or to an acquiescence in its rejection. He merely made a, new application as a more convenient way of presenting the original application for the final action of the office, after he had been assured that the rejection of his first application would be reconsidered, and a patent would be granted for the present invention. Both applications are to be considered as parts of one continuous proceeding, and the two years within which the invention could not be publicly used without invalidating the patent did not begin to run until January 9; 1879. Godfrey v. Eames, 1 Wall. 317; Smith v. Goodyear, etc., GJ., 93 U. S. 500; Graham v. Geneva Lake, etc., Co., 11 Fed. Rep. 138. The second claim includes, with the elements of the first class, the features of a tooth cut away at the back. Thus construed, the defendants infringe both claims of this patent. The next patent in suit which may be most conveniently considered is No. 277,941, granted May 22, 1883, to Cassius M. Richmond, assignor, etc. The application for this patent was filed Decem ber 1,1882. This patent is' for the invention known in the dental professjon as the "Richmond Tooth Crown." A patent was granted to Richmond dated February 10, 1880, for an artificial tooth crown, and the present invention is said to be for an improvement upon the tooth crown therein de-
scribed; but it is in fact for a radically different tooth crown. The invention relates to an improved method or device for attachingsuoh crown the roots or stumps of natural teeth remaining in the mouth, the object being to provide an artificial crown of improved construction, to be adjusted and secured to the root of the natural tooth in. a permanent, practical, and artistic manner, so thllt the tooth, when ;finished, will present a natural appearance, and be capable of the saml;lservice as a sound natural tooth. After the natural root or stump has been cut off or ground preferably on a level with the gum, and a hole is drilled therein into inserted, a metallic ferrule is then which a pill is to be fitted upon and shaped to the prepared root of the tooth. A suitable crown is then selected to be applied, to the root; color, size, and shape being. consulted in order to make it conform in appearance to, ap-d as a sul;>stitute for,a natural tooth. T,he artificial crow.n,isprovided with a metallic back or attachment, which has holes throqg4. it ,to allow t4e passageof,the pins, which are firOlly imbedded into porcelain. The root and crown having been sO-pJ,"epared, the crown isplaced in position, and attached to the ferrule by wax: ;sufficiently to hold the crown firmly in position to allow of the ren;lovalof the ferrule. Then a suitable pin, designed to be inserted in the hole drilled in the root, is embedded in the wax. The prepared crown is then invested or protected by a suitplast'?T,leaving the wax portion exposed. able cover of.marble dust This investiture will hold the parts in the position which they are to occupy 'Yhen placed in the mouth. The wax is then melted from the and replaced by a ,suitable gold s'older, which may be pin and blown ina blow-pipe, and fused around the pin. This solder will unite with .the pin extending into the root, the ferrule, the, pin extending into the porcelain, and the porcelain backing, making a solid metal backing to the crOWD, and firmly holding all the parts together. The prepared crown is then slipped upon the prepared root, and cemented thereon; the ferrule, when placed in position, projecting along the very margin of the gum sufficiently to protect the root from decay, and to conceal the ferrule from view. The specification contains the following statement: "It will he seen that when'this denture is applied to a root, the end of theroot is entu;l;lly protected from the injurious action of the fluids of the mouth, and is hermetically sealed, being covered by a closed cap. This inclosing cap is of the greatest importance,. because. otherwise decay must necessarily take place by reason: of the action of the fluids of the mouthon the exposed dentine, and the denture would become useless. By this arrangement, therefore, both the end of the root. and· so much of the same.as might otherwise be exposed to the fluids of the mouth, are hermetically sealed. and the root is thus protected from theinjuriolls effect which would otherwise result from the actio.n of the fll.1ids. It is obvious that this part of my invention, namely, the cap on the end' of the root, may b,e used with other kinds of dentures and. other arrangements of artificial crowns besides those shown herein, and that, when properly applied, the root is completel! protected. As.shown in figures 2,4, and 7, the flange of the cap should proJect beneath the gum, and allow the gum to extend: to thlil porcelain crown. The freedom of the gum from permanent uttachm.en1i With the end of the root allows this band to be placed in llosition
INTERNATIONAL TOOTH CROWN CO.
without cauaing irritation. Ii,do :not limit myself to the precise method of attaching this inclosing cap to the root, as other methods might be employed; but the one here shown is the simplest known to me. 'rhe caps hereinbefore described are so constructed, as'set forth, as to cover and inclose the prepared eud of the root, wholly excluding the juices of the mouth therefrQm, and preventing the decay that would otherwise result," , The claims of the patent are as follows: " (1) The combination of a prepared root, having its natural terminal contoUl' near the margin of the gUm, with an inclosing cap attached thereto for supporting an artificial denture, substantially as described.. (2) The combination of a prepared root, having its natural terminal' contour near the margin of the gum, with an inclosing cap attached thereto, and with an artificial pot'c6lain 01' other crown supported by said cap, 'substantially as described. (3) The cOinuination of a prepared root, having its natural. terminal contour near the :margin oithe gum, with an inclosing cap attached thereto, the said cap being attached to the ;foot pya pin orsuitable attAChing contrivance ing upward, and into a in the rpot; substantially as described. (4) The combination of l\tooth crown, a metalItc backing soldered to said ,crown, and a pin firmly soldered to said artificial backing, and secured to and passing through a ferrule adapted to surround the root, substantially as described. (5) The combination of the crown, C,pl'ovidecl with snimbleatt3lCbing pins, E, :the backing plate, D, and the metallic packing, N,un\ted to ferrule, B, an,d pin, Z, substantially as described. (13) The combination of t\1e crown, <;, metallic backing, N, united to protecting plate, D, and pin,Z, the root, A, and cement, J, uniting the pin, Z, to' the root, substantially as d1:lscribed. -, ' ,
It is not open to doubt that this patent describes an invention in dentistry of the greatest utility and value. The invention enables an artificial tooth to be placed upon a natural root, which can only be distinguished from the natural tooth by the most critical examination, which is as serviceable while it lasts as a natural tooth, and which is very durable. The Richmond crown not only supplies the place of a natural tooth for the purposes of use, so as to be a perfect substitute for a lost tooth, but it can be artistically made as in many instances to be an improvement in appearance upon the natural tooth. Nevertheless, if t:\:le patent can be sustained as valid to any extent, it .can only be upheld by placing a very narrow Umitation upon the claims. .·. , Without referring, at present, to the prior state of the art at the time Dr. Richmond conceived the inventions of the patent in 1880, and of the present patent, it suflicesto say that everything which is the sUbjectof the fourth, fifth, ItIld sixth claims pf the present patent had beeil in prior public use for more than two years prior to the application for the patent. and was public property prior to the year 1880j' and, if the remaining claims are valid, it is only because an inclosing cap, by which the end of the root is hermetically sealed, protected from the action of the fluids of the mouth, is an element of each claim. 'rhe inventor himself had, ab:md,oned all the rest of his invention to the public. As early IlBin December" 1876. Dr. Richluond had inserted a denture tn the mouth of a patient in San Francisco involving the principle of the patent. That denture ,differed from the artificial-tooth ,crowIl:of the
because the. inclosiIig. or band was nota cap which end Qf the root, and 'dId not extend so far under the gum of :the as to the gold surface. , 'The denture, as then ins.erted by, him, was a complete practical success, and, so far as is known, still remains in use in ,the mouth of the patient. In the years 1878 and 1879 Dr. Richmond practiced the invention extensively in many of the large cities of the United States, and demonstrated to hundreds dentists in publiccJinics and private practice the method of preparing aod inserting his tooth crowns. The method was practiped with differences c?fdefuil, qutwas always. the same in essentials.; The ropt was ,always; preparei;l in the way pointed out in the ,patent; and tlle denture always consisted of a ferrule or band accurately fitted to surround the root, to whioh was soldered a crown with a porcelainfront, having a pin extending into; the root, the whole being ce.mented on the root In one piece. . Sometimes a loose floor of platinum or gold Pllcked inside tJ:ie' band, behind the backing of the porcelain the solder when: the crown was infront, ;80 as to make a floQr vested .in position, and the solder blown in; and sometimes, instead of a loose floor, a half floor was joined to the band, extending partly over the end of the root, fQrUling a cap embracing part of the exposed end of the roo.t, ll,ncl the solder Was then blownin under this cap. When made .in either of ways, denture consisted of a porcelain tooth, attached to a ring of gold at its'upper part, and, where the porcelain itself m,et the ring, there was no solid floor to the ring, but the porcelain itself impinged upon the Among tliose to whom Dr; Richmond taught the invention was Dr. Gaylord; a dentist, one of the defendants in this caUse. Two original dentures I;lui.deby Dr. Gaylord, and'inserted in the mouths of patients, one in April, 1879, and other in May 1879, have been produced in evidence, and identified; and the fact that these tooth crowns were made and inserted at those dates, ahd were practical and successful operations, ari,dthat, with a single exception, both were in all respects the tooth crowns of thepittent,inserted according to the method' of the patent, is clearly established. It is conceded by the expert fOr the complainant that if these dentures had been made with a ring ar ferrule, having a' .'bop1plete floor embracing the exposed end ofthe root, they would be the :tooth crowns of the patent. One of them has a half floor of platinum back of the under the ring, intended topartially inclose the 'exposed end OHheroot, and the other has a prtrtiaI floor, made ofloose gold foil, stUffed behind the porcelain, before the solder was flowed through theol1ck of the crown. It is insisted that 'When the crown is constructed''ilYthis way it does not have the inclosing cap of the patent, 'and cqnsequehtly. the end of the rodtis not hermetically sealed. The coutroversYas to this patent is thus narrowed to the question whether ·the a' complete floor over the end of the: ferrule, so as to wholly (lnd of the natural root! in the place of a partial floor, involves sufficient invention to sustain the patent. . It is to be' observed that in one sense the end of the root is hermetic-
INTERNATIO:NAL 'fOOTH CROWN CO. V. RICHMOND.
ally sealed according to the method of the patent, whether covered with the closed cap or not. The specification states that the prepared crown is slipped UpC)ll the prepared root, and cemented thereto. As the tionwaspracticed by Dr. Richmond from 1876, enougp. cement placed inside the recess of the prepared crown to. exude at the marginof the gum, when the crown was forced on the root, to fill up the space, and to make a solid contact, when hard, between the root at all the parts exposed and the crown beneath and the ring surrounding the root. The cement not only serves to hold the crown firmly in. its place upon the root, but fonns a hermeticall v sealed inclosure of the root. But it is insisted by the for the complainant, and by some of the witnesses who have applied the invention practically, that, unless the ring:has a solid metallic floor, the porcelain where it joins the. ring cannot be- so closely uniteli that the juices of the mouth will not enter at the jointj that the solder flowed in behind the porcelain will not effectually. close this joint; and that in consequence the cement inclosing the root will be soon disSi)lved, and destroyed by the secretions of the mouth. It is alleged that, if the minutest hole or perforation is left, in the floor of the inclosing cap" the cement:is to th,e secretions; that·:thesecretions of differeAtmouths vary wonderfully in' their. de:structive action; andthatwhile in some cases the cement might resist for years, in.others it would fail speedily; and thus that the value of the invention depends most,rqaterially upon the. inclosing cap. Inasmuch as Dr. Richmond had for years been practicing the invention without a .closed cap, a,nd introducing his ,artificial crown everywhereto'the profession 4Sa,p!3rfect substitute, 'when inserted upon a natural root, fol' the natural tooth, it m,ay 1:Ie doubted ..whether the mechanical change of covering the ring with a solid floor, thereby converti.ng it into a cap, was introduced, by ,him so much for its utility as it was, for;the purpose of suggesting novelty, and ,enabling him, and .those with whom he had become to obtain a patent. The -cl1angewas not made until Qthers had, pecuniarily interested with:Dr.R.ichmond in his inventions. Then it suggested that the Teason Of the failure of sey-eral crowns which l'\ad be\3ninserted for patients was that they were defective because they were qpen at the end qf the '<lap inclosing the .end of the root at the point ,'fherethe porcelairicame in contact with the cap. Thereupon the c1os>ed cap was adopted 1 No experiments were necessary, but the defect was remedied as soon as it was suggested. It is testified that the effect of this change was greatly to increase the strength of the artificial crown, and assist in J>rotecting the root frODl the leyerage of the pin, by lateral pressure, as well als(j);as to protect more efficiently the cement from the action of the secretions of the mouth. On the other hand, the testimony Oiridicates that, since the closed cap haabeen adopted,itisnot exclusively used by those who are authorized. to practice the in,vention under the patentees; arid, althpugh it is perhaps generally preferred. the impression left by the proofs is that there is considerable exaggeration in the opinion that
attributes to the closed cap the peculiar efficacy which has been assigned to it. If Dr. Richmond had been the first to make a closed cap for a use ,cognate'to t1;l1it to which it was applied by him, the question whether ihere was ahy invention in tpakitlgthechangemightberesolvedin favor of the coW'plainant. But it was not new in the art to use a closed cap in order to h;ermetically inClose the robt of a tooth. This sufficiently appears by reference publication in the Missouri'Dental Journal, in 1869, of the operation of Dr.':Morrison. That publication describes an ,operation ll1 which agoldtJap is fitted upon the root ofa lost or decayed tooth, so as' to ,be adjustedaCC'u'rately to the remaining portions of the tooth, and made to cob:espontl'in configuration with the original tooth. The cap is. filled with a thinpasteo'f ·cement, and pressed to its place. upoll'the root; the superfluouseeinent being crowded out at the margin of the 'gum where'the cap' extends quite to the alveolus. Another iustllOce bf,tbe'Us'e ,ofdtps ha'v'i'ng'atig'ht metal floor to be inserted on the natural root$ of teeth, and having a porcelain tooth crown soldered :on the cap, is 'disClosed iIi 'the patent granted February 3, 1881, ,to John 'R Beers, for teeth. In view of those referencesaJone, it must be held that there was no invention in :making'thechange which was effected by Dr. Richmond in the fall of 1881, by substituting the closed cap in the place of the cap with 8 partial floor, or without It solid floor. All that Richmorid did was to close :the band or ferrule' with a bottom of gold, and build up his artificial 'crown upon it, and the way to do thishltd been already pointed out. The patent, cannot be sustained upon ,the theory that Dr. Richmond 'wasexperimenting ",ith and improving his method of making and in'serting artifioial tooth' crowns during, the time intervening between his in.San Fransisco, in 1876, until at last,with the change to 'thl3 closed cap made by him in the fall of 1881, he succeeded in perfect'frig an invention which up to that time had been inchoate or incomplete. During all this period he had; be'en demonstrating and practicing theinin public to dentists throughout the United States, and in his 'p,#vate practice, with all the variations of mechanical ,detail. Those to taught his method,forcompensation, bought their instruction 14 order to practice the inventiouln their profession. They did prac'tice it; and it was put into successfuluse in all parts of the country; and it is too late to deprive the public ofwhat became rightfully theirs, by to the invention a mere matter of mechanical improvement in itself hadno patentable Iiovelty· · . The third 'patent in Buit is No. 277;933, granted May 22, 1883, to Alvarn S.· Richmond,assignor,etc. ,for an artificial denture. It is sufficient fo'say of this patent ,tHat, in 'view of the inventions of Dr. C. M. Richmond and Dr. firsti'and third claims embrace nothing which inv.alves and that carrying the metal of the bridge 'the wearing 'sutface of the' porcelain does not im.part.patentable 'charader to the third claim.
NEW YORK BELTING & P. CO. 'It. NEW JERSEY CAR-SPRING & R. 00.
.At the hearing of the cause we indicated sufficiently the reasons for 'considering the fourth patent, upon which the suit was brought, invalid for want of novelty, and it is unnecessary to enlarge upon them now. A decree is ordered for an injunction and an accounting as to the first of the patents in suit. As to the others, the bill is dismissed. Neither party is awarded costs.
NEW, YORK BELTING&: PACK1NG Co. t7. NEW JERSEY CAR-SPRING RUBBER Co.
«(}Urc;n't (Jourt, 8.
D. New York. Apri118,1887.)
It is not novelty which will sustain a design patent to transfer to rubber. Or to arupber mat, an effect, or. impression, to the eye which has been produCed upon other materials. or articles by contrast or variation of light and , . s)lade: ' " ., . 2. SAME. Where such a patent is merely an attempt to secure to the patentee a monopoly of· a1\· oruamentation,upon rubber mats. by which variations of light and shade are produced by a series ofridges and depressions, without regard to any particular arrangement or characteristics of the lines. except that they ate to be parallel, the patent is invalid.
PATENTS FOR INVENTIONS--NoVELTY-DESIGN-RUBBER MATS.
113 Equity. On demurrer to bill for infringement of W. H. L. Lee, for complainant.
A'tthurv. Briesen, for defendant.
WALLACE, J. It is insisted by demurrer to the bill that the patent sued upon is invalid upon its face for want of novelty. In determining the question, the court can only consider such familiar facts as fall 'within the category of those things ofwhich judicial notice will be taken. The patent is for a "design for a rubber mat." The patentf>e states in the description that, "in accordance with the design, the mat gives, under the light, difterent effects, according to the relative position of the person loolcingat it. If the person changes his position continuously, the effects are kaleidoscopic in character. In some cases moire effects like those'of moire or watered silk, but generally mosaic effects, are produced. Stereoscopic effects ,also, or the appearance ofa solid body or geometric figure, may:at times'be given to the mat, and, under proper conditions. an appearance of a depression maybe presented. The design consists in parallellinesof corrugations,depressions,or ridges,arranged to produce the effects as above indicated. I may divide the mat by a number of imaginary lines, representing a projection of any geometrical figure. and in the 'sections 80 formed make parallel corrugation8 or alterilate ridges and elevations, the different sets of corrugations making with each other the proper angle to give the effects sought for. To give the moire effects, I usually make the ridges and depressions undulating, while mainv.30F.no.l0-50
taiiling the parallel position with relation to each other.:' Idesire, therefore, to have it understood that I do not intend to limit the design to parallel corrugations,which are straight throughout any considerable portion of their length, but that it includes the undulating ridges and depressions, or other disposition or formation in which the corrugations alter their direction irregularly, or in which they maYibe straight for It certain distance, and then fomled in undulations, and that it includes the corrugations arranged inooncelltric circles, in spirals, in zigzags, or according to any desired figure." The claims are as follows: "(I) A design for a rubber mat, consisting of oorrugations, deprellsions, or ridges, in parallel lines, relatively, substantially as described, to produce variegated, kaleidoscopic, moire, stereoscopic, or similar effects, substantially/as set fOrth. ,0(2) A design for It r,ubber mat, consisting of a series of parallel corrugations, depressions, or ridges, the lines of the said corruga,tions being deflected at one or more points, substantially as ',(3) ,A design for arubber mat, consisting ofaseries of parallel ridges, arranged in sections, the general line of direction 6f the cc1rrugationll in onesectionrna'king angles with or being deflected to meet those of the corrugations in the contiguous or other sections.· 8ubfltantiallyas,<\escribed." : . ' " ., .· The patent :is- an attempt' to secure to the patentee a monopoly of aJ.,l upon rubl,Jer illats'by Which variations of light and shade are produced by a series of ridges and depressions, without regard to any particular arrangement or characteristics of the lines, except that they are:tmbdc.paralleI. Although there is an illustration in the cll'awing, and although each claim is for a design "substantially as described," the language of the specification is carefully as not to restrict the claims to the design shown in the drawing, but so that the :first claim shall include e-veryva.rietyiwhich can oeproduced by the arrangement,of, lcorrugations, depressions, or ridges in'parallel lines; the second, all obtainable when by the anangement the corrugations are deflected; and the third, all obtainable when, by the arrangAment of corrugations ,in sections, those of 'one section make an angle' with those in the contiguous or other sections. ' It WllS not new: to produce crmtrasts and variations in light and shade, or Fltereoscopic'eflects, by depressions or elevations'in! the surface of materials. ,It was old to do this by arranging them in'parallel lines as is 'W00\1, plasteli, and corduroy cloth. It is not novelty which will sustain a design ,p:atent to transfer to rubber, or to a rubber mat" an effect or impression,tathe eye which has been produced upon'other materials The design of or articles by contrast or varJ,ation of light and this patelJt is not new, unless it embodies a new, impression or effect produced .by an arrangement or configuration of lines which introduces new eleme:Qts of color or form. This is not claimed. ,None of the·aaims can be limited to a design which produces any definite or,concrete impression to the eye. The demurreris sustained.
MUTUAL LIFE INS. CO.
FRYER V. MU['UAI, LIFE
CO. OF NEW YORK.
(Circuit Court, S. D. NeJIJ) York. 1.
PATENTS FOR INVENTIONS FLOORING. NOVELTY -
INVENTIVE GENIUS -
Au improvement in fire-proof flooring, the utility of which is sufficientll proven, though it does not mvolve a high degree of inventive faculty, ConstItutes a patentable novelty.
Where llone of the patents or pUblications set up as anticipations of a new improvement in fire-proof flooring points out the simple means suggested by the improvement of protecting the girders by the use of a filling strip or soffit tile, dovetailed mto and supported by the tiles between the girders, which remedies the radical defect in previous methods, by which the bottom flanges of the girders were not properly protected by fire-proof materials, the improvement is not aIlticipated by the previous patents. Whllre a patent consists of a certain combination of several parts, ultimately to be cemented together, the appropriation of the invention is complete before the parts are joined.
In Equity. Bill for infringement of letters patent·. Geo. W. Van SWlen, for complainant. James Knox, for defendant.
WALLACE, J. The complainant alleges infringement by the defendant of the second claim of letters patent No. 112,926, granted March 21, 1871, to Johnson and Kreischer, for improvement in hollow-tile floors. The invention relates to a fire-proof flooring, which is composed of arched tiles, resting upon flanged iron girders. The tiles are provided with dovetailed grooves near their bottom edges, to catch oV,er the lower flanges of the girders. The dovetailed grooves project somewhat below the girders, so as to receive filling strips made of clay, so formed at the upper part that they can be inserted in the dovetailed grooves. The object of the filling strips is to fill up the spaces between the aeijoining tiles. They protect the lower ends of the iron girders, and with the dovetailed tiles inclose them in a fire-proof material forming a fire-proof ceiling to the room below. Besides protecting. the iron girders, they improve the finish of the ceiling. The claim is: "(2) The removable clay filling strips, D, in combination with the hollow-arched tiles, A, and double-flanged girders, B, as herein set forth, for the purpose specified." The substantial defendant is the Wight Fire-Proofing Company, the owner of letters patent No. 285,452, granted September 25, 1883, to that company as assignor, for substantially the same improvement as that specified in the claim of the complainant's patent. Novelty of the claim in controversy is contested by the defendant in reliance upon vari()us prior patents and publications. The most important of these is the United States patent to Petersen, granted April 3, 1855, and the English patent to Hogg, of October 1, 1861. The patent to Petersen does not show or suggest a removable or any filling strip intended to cover