invention to take the pole from the wagon, or mowing-machine, or horserake, or cultivator, in use before the device covered in this patent was shown, there was still less invention, as it seems to me, required to convert the suggestion of the of the pole in the Hudson rake into the pole shown in the complainant's patent, than would be necessary had there been no Hudson rake in the prior art. In other words, it seems to me that without the Hudson rake and its levers, intended to' specially aid in lifting its teeths over obstructions, there would have heen no invention in applying the pole to the rake if a pole was found desirable for any purpose;' yet, with the Hudson rake in the field, there was, certainly no invention in applying a breast-strap from the collar of the horse to the forward end of it, to use it for the purpose of guiding the machine, or backing it as is done in the complainant's patent. Hudson, it seems to me, could not have sustained a claim for a guiding-pole to his rake as a llew invention, or even as a combination, because guiding-poles were old; and, if he could not have done so, certainly Kenaga cannot be allowed to do so. lt seems to me, therefore, that the defense of want of novelty is fully established by the proof in this' case, and that this bill should be dismissed because of the invalidity of the patent.
KmK v. Du
w: JJ. Pennsylvania.
December 27, 1887.)
). PATENTS FOR,INVENTION,S-IrTILITY..,..PRESUMPTION.
The presumption of fr()m the patent itself is sufficient In favor of the patentee untilrebutted'by proof. '
2. SAME-;-A.NTIOIPATION-MoVABLE DAMS.
The devic.e called a new and Ilselul improvement in movable dams. covered Kirk, was by lettElrspatent No. 268,411, issued December 0, 1882, to not iIi use by'John Du Bois before the date of the patentee's invention.
Claim 6 of suchpatel).t, described as a bear-trap dam. having a relieving or open sluice extending from under the so as to relieve them from un· necessary pressure, is infringed by the device shown to have been manufactured by defendant, John Du Bois.
In Equity. en bill for· injunction. Plaintiff, Arthur Kirk, filed his bill for an injunction and account against defendant, John E.Du for the infringelnent of a patent.
McKENNAN,J. The complainant is the patentee to whom was' issued letters patent No. 268,411, dated December 5,1882, for a new and UReful improvement in movable dams. The patent covers ten claims, only one of which (the sixth) is alleged to have been infringed, and is therefore the subject of this controversy. That claim is in the following words: "(6) A bear-trap damj having a relieving or open sluice extll:::.d-
KmK 'V. DU BOIS.
ing from under the ·gates, so as to relieve them' from unnecessary preslure; substantially as and for the purposes described." In the specification this relieving device is thus described: "In the end wall of the dam I make an open sluice, water-way, or tail-race, 38, Fig. 2, at such height as will permit all water which is not req1;lired to sustain the gates to escape from under them. When the gates are down, as shown in Fig. 1, the water is &dmitted by the wickets under them. This raises and floats them up until they reach the position shown.by Fig. 2. By that time the water, having reached the sluice, 38,which passes through the wall around the end of the gates, will flow freely through, sustaining the gates at that level." " A. modified construction of the sluice is shown by Fig. 4, where the outlet, 39, in the wall is below the level of the water, the latterpassing through the outlet, 39, into a forebay or well, 40, and thence over the bridge, 41. * * * It is apparent that the form, place, and details of construction of the sluice for relieving the gates from excessive pressure below can be varied by the skilled constructor; but in all cases an open channel will be necessary when the water has reached a certain height or pressure under the gates." It thus appears that the whole object of the invention was to regulate the hydrostatic pressure under the gates or leaves of a bear-trap dam, so as to raise and retain them at the desired height or level; and if it does not appear that this desirable object was accomplished by any analogous method before the patentee conceived and described the means of effectuating it, he is fairly entitled to all the benefits his patent was intended to confer upon him. 'Three grounds of defense are set up and insisted lIPon by the respondent. (1). Tllat the alleged invention is not useful, aside from the desirability of the result contemplated by the patentee, and hence the ostensible value of any means conducing to its production. It is sufficient to say .that no proof was presented by the respondent Oll this subject, and that therefore the presumption of arising from the patent itself is enough, without more, to meet all the requirements of the complainant's contention, and that he is entitled to the uncontroverted benefit of it. (2) That the patented device was in use by the late John Du Bois before the date of the alleged invention by the patentee. It is alleged that this device was embodied in a dam described as the "Chamber of Comon the twenty-third of December, merce Dam," and was in use 1879. On that day several members of the chamber of commerce of Pittsburgh and other persons, among whom was the complainant, visited this dam for the purpose of inspecting and examining it, and all of them who were witnesses testified that no such device as that described in the patent was then connected with it. On the other hand, quite a number of witnesses who had been in the employment of John Du Bois testified that a relieving device substantially similar to the complainant's wasthen and there in use. In view of all the surrounding circumstances, we are of opinion that the testimony in support of the complainant's hypotheAnd this conclusion is confirmed by what transpired sis 'in the course of proceedings in the. patent-office. In the spring' of 1881
'Jdl1Ii:,Du Bois Bnd Arthur Kirk each' filedapplieations in" the patent-of-fioo'foran improvement in bear-trap dams; as described in, the clailIlID here. Theywerendjudgedto interfere with, each <>thel', :and , 'an was accordingly declared between Kirk and, Du Bois. Afterthetakine: of testimony and the hearing of the patties, the exam,inerQf'interferences decided "the questionof priorityofinventionin favor of Kirk." From this decision DuBois, in writing,wllivedhisright of appea1.Now, although this decision WIlS not concltisiveagainst Du Bois, 'yet the decision itself, C0upledwith his acquiescence iii it, is strongly ,persuasive that it WIlS right, Betan. avermentof decisive 'significance is "Illadein the preliminary statement by Du Bois'·filed in'pursuance oithe ,requirement of the office. In that he says "that as yet (October 10, "1881,) he has made no model ahd has built no dam simila.r to that shown in his pendiilg case." , How, then, is it credible that the contested invention could have been embodied in the chamber of commerce damas eady as December 23, 1879? In view of all this, we must oonclude that the testimony in behalf of the defendant is of the m:ost 'doubtful character, and that the weight of all orit is'with the complainant; and that thm part of the defense must fail. (3) Hils the defendant infringed the complainant's patent? The 'proofs, in our judgment, demonstrate that he has." But we 'do' not pr<>pose td 'diseussthis question at any length or in 'any detail" ,: It is sought to differentiate the com plainant's and the defendant's m:Hh6da by the argument that the complainant's provides for the overflow of the surplUs water: on the' side of the dam opposite to that where it enters iti while'in the defendant's the overflow is on the same side at which the water enters. But the difference in location is immaterial, as the function perresult attained, and the mode of operatioIl, are the same, So formed; 'far as the Elssentialpurpose of the invention is concerned. . :.. Upon the lYh<>le case a decree must be entered in favor of the complaitiant for an injunction and account, with costs.
. HOLMFB ELECTRIC PR01'EC!'IVE Co. 'D. METROPOLITAN BURGLAR:, ALARM Co.
(Oircuit OOU'l't, 8. D:N6tD YO'I'k.
December 31, 1887.)
In an action for the infringement of letters patent .No. 120,874. for an fmprovement in electric linings for Bafes, it appeared that the alleged invention consisted in placing the electrical apparatus on the outside of the safe, instead of the inside, as had been dOllelo:ng before the patent was obtained. Held, . that it was not an invention merely to find a new position for the electric lining, the device remaining the same. .. ; ..' . 2. S..u ni:-ABANDONMENT-DESCRIPTIOI( IN FORMER PATENT. . ' In an action for the infrin$ement of letters patent No. 120,874, for an fm. provement in the electric limngof safes, it was conceded that every featlire of the. patent had been described in a patent issued the year before. to the same patentees, though not included in the claims therein. There were no