it was occupied, because the Cherokee nation had a title and J;ight to possess iti but, if congress had meant by this act 'to include all land , owned by the Cheroke'es, the w6rds"set apart" would have been ample, and the word "occupied" was superfluous. Obviously, some distinctive matter was intet'ldidto be expressed by the use (])f that word.' The significance of it is evident, from the language of the proviso in article 2, heretofore quoted.; Manifestly congress set apart ,that 7 ,000,000 acres as a home, and that was thereafter to be regarded as Bet apart and occupied, "becatlse.,"as expressed in the preamble ofthe treaty, "congress was intent upon' securing a permanent home.", Beyond that, the guaranty was ofan outlet,.,-notterritory for residence, but for' passage ground over which the Oherokees,might pass to all the unoccupieddomaius west. But whiletheexclnsive right to this. outlet was guarantied, while patent was issued conveying this outlet, it was described lind; intended obvibusly as an outlet, and not as a home. So, whatever rights. of property the Cherokees may have in this outlet, it was not territory set apart for a home, and is not territory, within the language of the act of 1883, "set apart and tribe. I think,therefore, that the. district court of K'a)1sashad jurislliction over the territory in which this' offense is charged to have' been committed. I am aware that in 'the case of U. S. v. Rogers,: 23 Fed. Rep. 658, ,a difJudge PARKER of. the Western district of Arkanslts ;has ferent conclusion, and has ,held that the jurisdiction over this outlet still remains in the district court fot the Western district of Arkansas. I have given his carefUl and elaborate opinion thOrough studYi and while, according to thatopiriidn, the consideration which itscareflil preparation, and which the distinguished ability of that learned judge, compels, I am unable to yield to the force of his reasoning. Both the geographicalargument and the double description in the act ofiS83 lead me too. different conclusion, and to hold' that the jurisdiction over the outlet is vested in the district court· of Kansas. The plea to the jurisdiction of the districtcourtwiU therefore be overruled, and the case certified bacK to that courtfor·trlal. '
and others v. CLAFLIN and others.
(Oircuit Oourt, S. D. New York. June 7, 1887.)
PATENTS FOR WV:/£NTlONS-NOVELTy-!MPROVED SHmT-BosOMS. The claims of letters patent No. 156,880, of November 17, 1874, to Robert Cluett, for an improvement in shirt-bosoms, do not cover a bosom of any designated color, size. or shape, or a binding of any particular variety, or the machinery or processes employed in the construction of the shirt. They are simply for the combination of a shirt·bosom, bound on the outer edge with a. folded and stitched binding, attached to the shirt-body by a separate line of stitching through binding. This, in view of all that was known to the art in 1874, is not invention, and the patent is void for want of patentable novelty. . '.
In Equity. JamesA. Skilton, for complainants. LouiJJ C. Raegener and David'J.lim, for defendants. COXE; J. The complainants are the owners of letters patent No. 15.6,880, ,granted to Robert Cluett, November 17,1874, for an improvement in shirt-bosoms. The object of the patentee was-Jilirst, to avoid the disfigurement of the bosom which follows from folding in the raw edges and loose threads thereof;' second, to stay the bosom, and render it less liable to rumple; and, third, to prevent the wrinkling or fulling up of anyone of the layers of which it is composed. The shirt is constructedby placing two or more layers of clojih, composing the bosom, smoothly, onetipon the other. Their' edges are then bound with a folded strip of similar material, which, except at and yoke, extends entirely;al'ound the bosom I and is attached thereto by a line of stitches. The bosom is then placed upon the,shii'tbody, and fastened to it by a second line of stitches through the In other,and, perhaps; plainerwords,:the alleged invention consists in binding a shirt bosoUl;and 'afterwards sewing it through the binding to the body of the shirt. A shirt so made was firstoproduced by the patentee in the spring or early summer of 1874. The' claims are as follows:
"(1) In combination with a shirt-body, a shirt-bosom, bound on the outer edge with a folded and stitched binding, and attached to the shirt-body by a. separate line of stitching through such binding. (2) The shirt-bosom, S, composed of two or more thicknesses of cloth, B, L, bound on the outer edge with BI(, and secured to the sh,irt-front, F, by the line of stitch, '. ing, 0." , ' ','
The defendants, fldmit that some of the shirts dealt in by them contll.in the patented features, but they insist that the complainants' shirt was old ill 1874;, and, if not completely anticipated, the state of the art was snch that the patent must be held' void for lack of invention. . A voluminoull.mass of tes,tilllony has been returned UPOll the question of prior use. The greater part, however, may be laid aside, when it is remem bered that this defense must be established by proof as explicit and convincing as that required to convict a person charged with crime; proof which preponderates the complainants' testimony not only, but which satisfies the mind beyond a reasonable doubt. The evidence upon this question contradictions and improbabilities; and furnishes another illustration of the difficulty of arriving at the truth fro111 human testimony. Altho'ughcorruption, prejudice, and self-interest may be wholly absent, it is well-nigh impossible for a witness, no matter how may be, or ho\V retentive his memory, to recall the details of ordinary transactions occurring 12 or 15. years before.· the most intelligent andihcorruptiblewitnesses are here proved to have been mistaken in inU;lqrtaJ;lt particulars, arid others, not so intelligent or virtuous, are contradictedaild discredited. It is thought that the testimony falls below thesfundlLrd :required by the rule referi:ed to, it be the proof of prior use at Chatham, New York. 1'wo witnesses who made
bound-boSom siulilar to the patented shirt, were called; and at great length,and with careful attention to details, told the manner of construction, and the experiments which led to the adoption of that style of. shirt. But the :character of one of these witnesses, Ford, was compromised by an attempt upon his part to sell the knowledge he possessed for a large sum of money; and the court should hesitate to accept his story, were it not corroborated by the testimony of the county judge of Columbia county, whose character is conceded by all to be entirely beyond reproach. Judge McClellan positively, and with reiteration, testifies that he bought bound-bosom shirts prior to 1870, and gives facts and circumstances which render it quite improbable that he is in the wrong. To be· sure, he is shown to be mistaken as to minor details ina few instances, but, upon all material questions, his mony remains entirely unshaken, and, when taken in connection with the evidence of 'Ford and Clark, it can hardly be said that there is a reasonable doubt remaining regarding the Chatham anticipation. But it is thought that the patent must be declared invalid for want· of patentable novelty, and theci>urt prefers to rest the decision upon this ground. It will be seen, upon an examination of the claims, that they do not cover a bosom of any designated color, size, or shape,or a binding of any particular variety, or the machinery or processes employed in the construction of the shirt; but they are for the combination of a shirt-bosom, bound on the outer edge with a folded and stitched binding, attached to the shirt-body by a separate line of stitching through the binding. The patent'covers nothing more. To attribute to the alleged invention all the improvements and increased facilities which modern machinery and ingenuity have introduced into the shirt traffic is hardly warranted by the proofs. At the time the patentee produced the combination in question, namely, in the spring of 1874, the art of binding! textile fabrics for orI1amentation, strength, and preservation was very old. Shirts and shirt-bosoms, and bosoms with binding around their outer edges, were not new. Woolen shirts; with bosoms bound and attached on one side alone, lI.nd on both sides, .to the shirt-body by a line of sfitches, either through or just inside the binding, and laundered shirts with ruffled or puffed bound bosoms, were well known. In January, 1873, a patent for improvements in shirts was granted to Augustus D. Marr, the specification of which contains this language: "The edges of each fly and the bosom front may be bound with binding." In 1869 or 1870 the complainants themselves made and sold a bound bosom, or diekey, detache<;l from the shirt, and intended to hang by means of a tab to the collar button, and to be worn or not as occa:sion required. Had a mother, in 1870, whose son exhibited an aversion to wearing the bound dickey, seen fit to sew it to his shirt by a line of stitches through the binding, she would have anticipated the Cluett patent. Had she done this in 1875, she would have infringed. The question, therefore, is, was it invention for the patentee, in view of all that was known in the art in 1874, to sew the bound 'bosom made by him to the shirt upon which it hung, by a line of stitches through the
bhiditlg? There was no invention inJocating the stitches at that point, foritwQuld almost require an exercise of the inventive faculties tn- find any other,place to put them. Two or more pieces, of cloth, bound on the edges, are laid upon another piece, and held in proper position by means ,(If a button. ,A party who ris ,aware that similar fabrics have been heldjnposition, by sewing instead of buttoning, substitutes the former for, the latter mode. Clearly this is not invention. Take an tion. Let us assume that, twC), intelligent workmen were employed in the" complainants' manufact6ry. in 1872, the one wearing the woolen shirtiw.ith shield-shaped bound bosom, described by the defendants' witnesses, thie' othel' the bound diokiey, made by the complainants. The tab which holds, the latter to, the collar ';button breaks or becomes inoperative; and :its ,wearer, after examining the woolen shirt, of his companion, sews the to the body of his shirt by a -line of stitches through the binding. D.6eshe by this act become an, inventor? !Is the operation one which taxes the brain, or calls into being ;"that intuitive faculty of 'the mind" whioh the supreme court regards' as necessary to patentable novelty? HoUi8tcrv. Benedict Manufg Co.; 113 U. S. 59, 5 Sup. Ct. Rep. 717. If so, it mightalrnost be said that he who, by means ofa row of tacks through its binding, attaches to the wall a map which previously had been suspended in the same position by a' cord, is entitled to rank as an inventor. It is entirely clear that, under the decisions of the supreme' court, this action cannot be maintained. The record discloses less invention than was shown in any of the following cases: PennSylvaniaR.Oo. v. Locomotive Truck Co., 110 U. S. 490, 4 Sup. Ct. Rep. 220;; Stimpson v. ,Woodman, 10 Wall. 117; Stephenson v. Brooklyn By. Co., 114U. S. 149,5 Sup. Ct. Rep. 777; Yale Lock Co. v. Greenleaf, 117 U.S. '554, 6 Sup. Ct. Rep. 846; Thatcher Heating Co. v. Burti8, 39 O.G. 587,7' Sup.' Ct. Rep. 1034; Estey v. Burdett, 109 S. 633, 3 Sup. Ct. Rep; 531; Clark Pomace-Holder Go.v. Ferguson, U9 U. S. 335, 7 Sup. Ct. Rep. 382; Phillips v. Detroit, 111 U. S. 604, 4 Sup. Ct. Rep. 580; Gardner:v.:Herz, 118 U. S;;180,,6 Sup. Ct. The bill must be dismissed,with costs.
CLUETT and others
·(fJirouit Court, S;
York. June 7, 1887.)
COXE, J. A decree dismissing the bill, with costs, should be entered in thi. cause upon the authority of Cluett v. Claflin, ante, 9 2 1 . , ·