SEIBERT CYLINDER OIL CUP CO. V.' NIGHTINGALE.

171

disc.was called in the proposed third claini Hbvo adjustable devices." The th!,?ught that it should be' called one d'evIct', and therefore rejected the claim. The reason was stated as follows: "The third claim is objectionable, as it appears to be for two devices for locking and unlocking, while applicant showsol1ly one device for locking and unlocking, and ,another'for preventilJg unlocking at a particulariime."Thereupon the of the patent assented, the claim fortvvoadjustable devices Wl1fl; the.clajm for one adjustable!levice .remained, and the second .reissue became very open to attack, because the courts might hold that the patent was in terms for a single device, and should be so construed. It is now insisted that because the patent-offi,ce caned the compound disc a single disc, and the owners of the patent assented, to the name, therefore they abandoned a right to claim a double or compound disc, and can !lave a valid patent only for a single wheel. Such a conclusion rests too entirely upon technicality to merit favor. It may be the outcome of the principle suggested, in Leggett v. Avety,J01 U. S. 256, and confirmed in Shepardv. Carrigan. 116 U. S. 593,6 Sup. Ct. Rep. 493, but such a result would carry the principle to an improper The facts in the case are similar to the special circumstances in Morey v. Lockwood,S Wall. 230,ln consequence of which that decision is not cousideredt9!96 incompatible with the other recent decisions upon the subject of reissues. RusseU v. Dodge, 93 U. S. 460; Eames v. Andrews, 122 U. S.40, 7 Sup. Ct. Rep. 1073. The prayer of the petition is' denied.

BEmERT CYLINDER OIL CuP

Co.

v. NIGHTINGALE

and another.

(Oircuit Oourt, D;

1.

,

September 9, 1887.)

In lettel,"s plttent No. 138,243, dated April 29, 1873, issued to Jolm Gates for an improved lubricator, the first claim was upon the "method of feeding oil, consistin&"in delivering the oil from the reservoir up through a body of water inclosed In a glass chamber, and discharging the same through the feedcocks." The second was upon "the combination of an oil chamber with a water chamber, the latter being located over the former, and adapted· to receive oil from it, and deliver the same above the bod;r of water inclosed in it." The 'defendant's lubricator. called the Lunkenhelmer, adopted the device described in the first claim of the Gates patent. but the oil chamber was located at· the side of the water in .the feed-glass, instead of under, as in the second claim. Held an infrinuement, ' 2. SAME-ANTICIPATION-SPECIFICATIONS. The taken out by John Absterdam, 21, 1854, f()r an improved \ubr.icator, neither the specifications Bor drawings disclosihga sightfeed where the oil is delivered up through the water, was not an anticipation of th,e Gates patent; 8. SAME-EVIDENCE. ' Absterdam .testified to having invented and· put· in .operation, 80 years before, a'lubricator ·of the Gates design, and several witnesses testified to

PATENTS FOR INVENTIONS-IMPROVED LUBRIOATOR-'-INFRINGEMENT.

172

FEDERAL REPORTER.

having then seen the lubriclltor in use. The alleged improvement was not described in Absterdam's patent taken out .about that time. Held, that the evidence was insufficient to show an anticipation of the Gates patent.
4. SAME-CONSTRUCTION OF CLAIMS.

In letters patent No. 111,881, dated February 14, 1871, granted to Nicholas Seibert for an improved lubricator, the first claim covers mechanism whereby steam. is communicated to a tube, and an annular space between the two tubes within the oil-cup is kept hot. This device is not found in defendant's lubricator. The second claim is upon "the improved lubricator, consisting of the parts herein described, constructed and arranged sUbstantially as herein specified." Held, that the second claim embraces all the parts specified in the first claim, defendant's lubricator is not an infringement.

In Equity. T. W. Clarke, 'for complainant. ArthurStertt, for defendants. Cor,T J. . This bill alleges infringement ofletters patent N0.111 ,881, dated February 14, 1871, granted to Nicholas Seibert, and ofletters patent No. 138,243; dated April 29, 1873, issued to John Gates. Both patents relate toimprovelllents iri lubricators. Theclaims of the Seibert patent areas follows: "(1) Tire arrangement of the cock, Y, passages, S, S', and tubes, 0 and P, with the oil reservoir, F, and gauge, J, R, as herein shoWn and described, for . the purpose specified. (2) The .improved lubricator, consisting of, the parts herein described, constructed and arranged substantially as specified." The first claim covers mechanism whereby steam is communicated to a tube, and an annular space between the two tubes within the oil-cup is kept hot. It is admitted that this device is not found in the defendants' lubricator, and therefore the complainant confines the charge of infringement to the second claim. But if the second claim embraces as part of the combination that which is found specifically described in the first claim, then it is manifest that there is no infringement. The complainant contends that the word lubricator, as used in the second claim, includes those parts only which do the lubrication, namely, the condensing pipe and chamber, the oil reservoir, delivery pipe from the oil reservoir, cocks, etc., and ·that the claim should be construed as covering only those parts. But it seems, to me that this is a forced construction, and one which the language ·of the claim will not warrant. The claim is for the "improved lUbricator, consisting of the parts herein described, constrq,cted and arranged substantially as specified." of the main improvements described in theSeibert lubricator is the mechanism covered by the first claim, and when the patentee says, in effect, that the second claim is for the improved lubricator, consisting of the parts described in his specification and drawings, his manifest intention was to cover the devices which form the subject-matter of the first claim, as well as'the other parts of his lub.ricator. and such is the naturaland proper \ meaning of the language used. The question before the court in Garratt v. Seibert, 98 U. S. 75, was one of priority of invention in the case of interfering pa,tents, and suit was brought under section 4918, Rev. St. The question of the proper construction of claim 2 of the Seibert patI

SEIBERT CYLINDER OlT, CUP CO. t1. NIGHTINGALE.

173

I deem

ent was not before the court, and was not passed upon by it.

it unnecessary to consider the other defense raised to the Seibert patent,

because I am satisfied that defendants' lubricator does not infringe the second claim. . I now come to the Gates' patent. The gist of the GatAs invention is a lubricator, where the oil is delivered up through a body of water inclosed in a glass chamber. The claims relied upon are the first and second: "(I) The described method of feeding oil, consisting in delivering the oil from the reservoir up through a body of water inclosed in a glass chamber, and discharging the same throngh the feed-cocks, substantially as described. (2) The combination of an oil chamber with a water chamber, the latter being located over the former, and adapted to receive oil from it, and deliver the same above the body of water inclo!led in.it, substantially as described." The defendants' lubricator is called the Lunkenheimer, and it is fest upon inspection that it adopts the method described in the first claim of the Gates patent, of delivering oil up through a body of water inclosed in a glass chamber, and discharging the same through a cock. I am satisfied, also, that the Lunkenheimer lubricator infringes the claim of the Gates patent, notwithstanding the oil chamber is located. at the side of the water in the feed-glass,. instead of the water being located over the oil chamber. The result accomplished is thEl same, and while the Lunkenheimer may be an improvement over Gates, I do not· think the change made relieves the defendant from the charge of infringing the second claim. The most serious defense to the Gates patent is the alleged Absterdam anticipation. It is urged that John Absterdam took out a patent, November 21, 1854, for an improved lubricator which exhibits a sightfeed, and that prior to that time he had made a sight-feed lubricator which delivered the oil up through the water as shown in the patent of Gates. With respect to the Absterdam patent it may be observed that neither the specifications nor drawings disclose a sight-feed where the oil is delivered up through the water. The more serious question is whether the defendants have not shown that Absterdam did in fact construct a lUbricator, about, this time, which has the sight-feed and ery of Gates. Absterdam produces a drawing made in 1883, in the I'uit of this complainant against William Burlingame for infringement of Gates patent. This drawing shows the Gates method, and Absterdam swears that it is a substantial copy of a drawing made by him in 1853 or 1854; that he made several lubricators of the construction here shown; that one was in operation in the shop of J. J. Walworth & Co., Boston, and another on a locomotive named Washington,which was run on the Boston & Providence Railroad. This statement of Absterdam, as to the lubricators ill Walworth's shop and on the Washington, is confirmed to a great extent by several witnesses who saw these lubricators. But, after carefully reading this eVidence, I am not clearly satisfied that Absterdam did what he claims to have done. Here are witnesses testifying to what they saw 30 years ago. It is more than probable that what they

lH
actually saw wilsthe sight-feed which Abstardam patented, and not the sight-feed of Gates! which he says he invented previously. but we do not :find described in, his patent. .To my 'mind it is 8i cirCl;lJIlstance of some weight, notwithstanding his explanation, that Absterdam should not have described this improvement in his patent., Upon this record I havestillsomeidoubtswhether Absterdamwas the first inventor, and under thesecircumstB.noes itis clearly my dutyt() sustain the Gates bill should be dismissed as to the Seibert patent, ,and suspatent. tained: as first and se90nd claims of the Gates patelltj alld it is so ordered.·.

THEPAOLAR.l Z:tIGI.ER v.THE PAOLA

(Oircuit OO'U'J't,B. IJ.LouiBiana.

R.

June 17, 1887.)

1.

MARITrnE'LIENI:l-WHAT CONTRACTS GIVE :RzSE TO.

Maritime liens are 8t:riciijurilJ, and do not ltrise on all contracts made by the owners' to result in profit to the ship. The testis to be applied to the subject, , and nQtto tbl! objllCt., It is the subject-matter of .the contract .which must be maritime. Itn4notthe;IDllrll o1)ject,-the slJip. ' No maritime1illn eJi:ists for the eompressing of cotton, when the compressing was performed inland, .aildbeforeali.y contract of affreightment; binding on 'the ship, was made.

2. BAYE":"CoMPRESSING COTTON.

Admiralty Appeal. . . ,., " . 'B. ]i'lfank iJimaS and L O. 'Nixon, Jr., for libelant. E. H."Farrar, and E. B. for claini.ant.
PARDEE, 'J. Compressing cotton' for shi pm ent by vessel onailroad is land demandofthe. libelant in this casEds,c in effect, to establish a maritime lien far the compressing of cotton, when the compressingwfls performed inland, and before anycontl'act ofltffreightment, binding on the'snip, was made. The statement ofthecase shows that there conipressing. But. the libelant says that in the port can be nO of New Orleans. the custom 'and tisage was and is that billf1 of lading of cotton are made; and rates, are' fixed, with reference '00, the delivery to uncompressed cotton, and that when compressed cotton is the ahip delivered':'OO,' a ship the shfP, repays the cost of cempressing. Concede contract such ll, custori:l, a,.nd it can have no greater effect than an to the same purport between the ,master and the shipper. Such an express corltracFwould be, in substance, an agreemeht to nniken rebate on freight'of'cgmptessed and t?e freight IS earned,' or, ll1' other words, 'the ShIp, 111 conSIderatIOn of'frelght to be earned. agrees'tO pay down a cash amount.' ., Marititd0'liensare stricti juris, (see ..vandewater v. Mills, 19 How. 82,) .. ';',,. ,

of

lReported byJosephP. Hornor, Esq.,oftlieNew.Orleans Bar.