view saves the patent, and subservesthe justice of this case, it neither runs counter to sound public policy, nor tends to any evil consequences, so fat as! Call see. And now. March 17, 1888, the demurrer is overruled,witb lllave to the defendant to answer the bill within 30 days.
«(Jirc'Uit Oourt, No D. New York, , March 19, 1888.)
'Theinven'tlon covered by letters patent No. 126.031. 'Of April 23,1872, to John J Cowell, for an "improvement In sash balances." relatesto a cast metal pulJey,box,arrd consists, in the second plaim, in forming the box with tw.o or more semi-tubular swellings, one at each end of the. box, adapted to fit augeJ,'holes'bo'red tn the frame for inserting the box. Held, that the improvement, though a very simple one, involved sgmething more than ordinary mechanical skill, and that it showed inventive novelty in the saving of ti me and attention to details called for in the use of prior devices. Thefactt.hat as soon as a patented improvement was made and introdnced, its advantages over devices which had preceded it became manifest at once, and it. cPQlIPended itself. to tb,e jubliC as ,a practical and desirable, iMprovement; a1fdrds'a safercrite!1on 0 inventive novelty than any subsequent opinion of an expert or intuition of a judge.
SAME-EvIDENCE OF INVENTIVE NOVELTY.
8, SAME-ANTICIPATION-'B'i PRIOR PATENTS; In letters patent No 64,957, of May 21,1867, to Simon Drum, the method of inserting pulley-boxes in the window frall)e by making an auger-hole at each ,enllof the proposedrecells, alld. cutting away the, intermediate wood, is de. ,scribed. and the speciticatioDs set out an oblong puUey-box with. rounded ends, the arcn. of which would correspond with the srch of the auger-holes. Held anticipatio ll of leHers patent No. 126,001. of April 23, 1872, to John J.. CowCjl!, for an "improvement in sash balances, "the essentialfeature of the . '.', Jll',:i!le, viz., the semi-tubular swellings, being wanting.
'fhe invention covered by the second claim of letters patent No. 126,031, of April 23, 1872. to John J. Cowell, for an "improvement in sash balances, " relates to a cast metal pulley-box, and consists in formingibll box with two or more semi-tubular swellings, one at each end of the box'"adapted to tit angerholes bored in the frame for inserting the box. The, device covered by letters patent No, 185,369, of December 12,1876. to John Vettei"lein, is provided with semi-tubular swellings, not only at each end, like the (Jowell !.;ox, but also with practically connect with each other.' lteldan infringeinllnt; , ' ,
I ' ,
Nelson Davenport, for complainant. Esek Cowen, for responden.t.
J,. The sepondclaim of letters patent t granted to John Cowell, AJ}ril28. 1872, for all "improvement in is in conti'oversyin this suit. The invention in question relates to metal' JlUlley"box, and consists in forming the box with two or mote
PALMER '11. JOHNSTON.
semi-tubullll swellings, one at each end of the box, adapted to fit augerholes bOled in the frame fOl inserting the box. The 'specification points out the advantages of such a pulley-box as follows: "In inserting' this casing in the window frame it is only necessary to bore auger-holes corresponding with the swellings,and chip out between the holes. The s\Ve11ings tit snugly in the anger-holes, and it is not necessary to cut away wood neatly between the two auger-holes, as the sides of the box are less in diameter than the diameter of the sweIlings. The boxes can, by reason d this construction, be more easily and cheaply inserted in window frames, and will be held just as securely and snugly in place as if the sides were more neatly fitted to the wood." . The defendant is manufacturing pulley-boxes made conformably to a patent 1 granted to John Vetterlein, December 12, 1876. That patent describes the alleged infringing device as follows: "My improvement relates to the case, B, made with an external sui:face colllPpsed of segments of cylinders, C, at opposite sides, so placed that theY are adap,ted to enter mortises formed by holes bore<i in wood,. such holes intersecting so that the interior of the opening made in the wood will be conugations corresponding with the corrugations' upon the surface of the case." In. other; words, the defendant's devic.e is provided with 'semi-tubular 8wellings(not only at each end, like that of Cowell's pulley-box; but with the ,intermediate semi-tubulrr swellings which practically conneCt with each other. When Cowell made his improvements in pulley-boxes it was customary to insert pulley-boxes in the frame by making an auger-hole at each end of the 'proposed recess, and cutting away the intermediate wood; and a patent 2 had been granted to Simon Drum, of the date of May 21, 1867, which described this method of inserting pulleyboxes, and described an oblong pulley-box with rounded ends, the arch of whicbwould correspond with the arch of the auger-holes. Thepulley-box ofthts patent did not, however, have the semi-tubular swellings of Cowell's device. This was the nearest approach in the prior state of the art tothe pulley-box of Cowell; and Cowell was the first to recognize the advantage in the saving of time and attention to details in inserting pulley-boxes which would result from employing the peculiar fom of pulley-box which his patent describes and claims. improvement was a very simple one, and it is easy to assert now that any competent mechanic in that department of industry could have made it by the exercise of ordinary mechanical skill. Indeed, it surprising now that no one had made it; but no one had, although many kinds of pulley-l,oxes had been made, and some had been patented; and as sooh as this one was made and introduced its advantages were manifest) and it commended itself to the public as a practical and desirable device, and a better one than those which had preceded it. These circumstances ford a safer criterion of novelty than any subsequent opinion of an expert or intuition of a judge. The defendant has appropriated the invention of the Cowell patent t and Ii decree is therefore ordered for an injunction and an accounting.
CO. ,,,. ,PIONEER IRON-WORKS'
(Oirottie Gourt, 8. D.'!rfJUJ 'York. March 22, 1888:):
·. PATENTBFOR INVENTIONB-A'NTICIPATIONGENEuTORB-LETTERB , PATENT No. 90.506. " ' ' ,,' 'In a steam generator of that class in which the water Is contained In a series 'of tubes inclined upward from the tire front, active circulation of the water is necessary to success in making steam. The steam. therefore. is carried to ',' "chamber above, but in its passage sO,me water goa,s with i,t." ,H this water i,S allowed to fall back towards the' high end of the tubes from which the stealll comes, the circulation is impeded. Qrawford (letters patent No. 90,506, of ,·::May 25, 1869. to made the ends of the tubes to open into "I chambers. called "boxes," which communicate witb each other, and the cham" 1)llrB at the high end to communicate with the steam-chamber above. He placed the reservoir of supply above, and communicating downward into the chambers at thelower end. and connected the lower part of the steam-chamwith this reservoir, , This ar*angelPent the water from the chamber to the supply and into ,the circulatIOn forward, and effectually preTents obstruction which it would cause by being left to take the other course. Held not anticipated by English letters patent No. of'1863. to one Inglisl'the water ,carried with the steam into the steam-chamber, lIlulated there by condensation, being liable in that improvement to finf;! its 'way into the chamber at the lower'end'of the tubes, and to be drawn into the . lJpward circulation through the tuliles,.gain, and to fall back the, way., I. ,SAJ,[E. '" , . , ' .. " , ' "",',", ,; , The first two claims of letters'patent No. 90,506 of May 25; 1869. to Benja, 'min Crawford, for an "improvement in steam generators'" relate principally to;theinter,colllmunicatlng, chambers or boxes 'at the ends of:the series of tubes , inclined upward from the fire, Held invalid, 6uc1;l. liomlllunicatlng de,. vices 'being old. t. CLAIM. " The third claim is for the water reservoir connected, with the, steam-drum, "or, pther, part, ",in combination with the inclined tubes. as ·sctilJed.Heldvalid,the phrase "or other part" creating no uncertainty. In view of the fact 'that the connection would, not be substantially as deSCribed unless thecounection 'should between the wate.r reservoil'audthe steamdrUm, or some other part similar to the steaQl-drum, ,
The fifth claim 'brings other pa,rts into a combination with the same ar:rangement. Beldvalld, so far as it inciuded the third. ' , ,
The steain generator of defendants had the inclined tubes', the communicating chambers. and the stealX1,drilIn connected at the lower part with the water reservoir. The location- of the parts, however, 'was somewhat different from that in the third claim of letters patent No. 90,506, of Mal 25. 1869. to Benjamin Orawford. for,an,"improvement in steam generators. 1;lutthey accomplished the same thing by the same means and in the same way. ' Held an infringement. ' 6. SAME-LETTERS PATENT No. 17li,548-PATENTABILITY. , The first claim of letters patent No. 175,548, of April ·· 1876, to Babcock & Wilcox; for an "improvement in sectional steam generators," is for a tube connecting the steam-druln 'With other parts. and united to them by expanded. instead ,of screw, joints. 'Held, t1;l.e joint6 and their advan1;&ges being ¢ld, ,that the invention was patentable; the only new thing that was done ing to use the joints in the places'iD:dicated, and that amOl,lbting merely to' a good selection from among known joints aud involving only good workman,;,ship. " ,' " , " ' ,
····"·Uf;ATlON. ' ' ' , ' ' " .'" .. , ' . , ".. ' The lIill charged a joint infrIngement by P. and 8.· which "said defendants are jointly concerned in and CQnneoted with," by the manufacture by P.for
·1.J;lA¥E-AciIQN8 POR INll'RING¥lMBlNT--JOINT
lIale by S.qf,the,patented article. Pending spit t1l.e'patent expiretl. and P, settled):)y written stipulation under seal; the money paid "to cover the costs of complainant in this suit against P., and aU damages for the infringement ,by said P. of the letters patent sued on." It was also provided that the settlem,ent should not release S., "all such claims and demands being expressly reserved." Hed, both P. and S; being liable for all the infringement by either as maker, seller, or user, that the stipulation discharged S. both as to costs and as to damages. 8. SAME-PLEADmGs-AlrENDMENTS TO CORRESPOND TO PROOF. Where witnesses have been examined as to \lrior patents which are material upon the question of anticipation. and which were not set up in the answer, nor formally put in evidence, but which have been treated as regularly in the case for that purpose. on the argument and in,the consideration of the cause, f\ motion made and submitted with the case for the amendment of .the answer, and for the allowance of the patents, as being formally in evidence, ' will be granted in order to make the case complete.
InEquity. Bill for infringement against the Pioneer Iron-Works and the Safety Steam Generator Company. Samuel R. Betts and Benjamin F. Thurston, for complainants. Edward Sr., and ErJ,ward N. Dickerson, Jr., for respondent, SafetY,' Steam Generator Company.
WHiEELER,J. This suit is brought upon three patents: No. 90,50,8, dated May 25,1869, andgr:anted to Benjamin Crawford, for an improvement in steam generators; No. 98,490, dated January 4, 1870, and granted t9 Griffith, Wundram, and Muller, for an improvement in sectional steaU),generators; and No. 175,548, dated April 4, 1876, and grantedto)3apcock and Wilcox, for an improvement in sectional steam generators. On the argument infringement of the 'first, second, third, and 'fifth claims of the first and the first claim of the last is relied upon. The first claim of the last patent is for a tube connecting the steam-druID with other parts, and united to them by expanded, instead of screw, joints. The, expanded joint appears to a slight extent to be like a hall and socket joint, and to aomitof small movements of the parts without causing a leak. Such a joint seems to be peculiarly useful in those connections on acoount of necessary changes in the relative position of the parts caused by expansion and contraction and otherwise. But such joints and their advantages are conceded to have been old and well known before, so that the only new thing done was to use one in this place. This was merely a good selection from among known joints, and involved good workmanship, and apparently nothing more. It does not seem to come upto a patentable invention. Railroad 00. v. Truck 00., 110 U. S. 490.4 Sup. Ct. Rep. 220; Miller v. Foree, 118 U. S. 22,6 Sup. Ct. Rep. 204. These generators are of that class in which the water is contained in a seriesoftubes inclined upward from the fire front. Active circulation of the water through the heated parts of the tubes is necessary to ,success in making steam; and as there is no room for steam in the tubes it must be to a chamber above, and some water will go with it. If this water is left to fall back towards the high ends of the tubes from which the steam comes itirnpedes the circulation. Prior to Crawford's 'invE:ntion there was no.arI'angement, so far as has been made to appear, -to togo to the Ipwer end of the tubes its place ,with
water from the supply in the circulation upward through the tubes again. He made the ends of the tubes to open into chambers, called boxes, which communicated with one another, and the chambers at the high end to communicate with the steam chamber above; and he placed the reservoir ofsupply above,and communicating downward into the chambers at the lower end, and connected the lower part of the steam chamber with reservoir. This arrlthgement takes the water from the steam chan1ber to the supply, and into the circulation forward, and effectually prevents the obstruction which it would cause by being left to take the other course.. The invention described in English letters patent No·. 652, granted to one Inglis, in 1863, comes nearest to this arrangement of anything shown, as an anticipation. In that, as understood, the water carried with the steam into the steam chamber, oraccumulated there by condensation, might find its way into the chamber at the lower end of the tubes, and be drawn into the upward circulation through tpe' tubes again, and might fall bl;tck other way and obstruct the circulation.. 'fhe first two .claims prill,ciplllly to the boxes forming the communicating chambers at the ends of the tubes. Such communicating devices are shown to have been known before. The third claim is for the water reservoir connected with the steam-drum, or part, in conibination with the inclined tubes, substantially as described. Some question is made about the exactness of this claim on account of the expression, "or other part." The connection would not be substantially as described unless the connection should be between the water reservoir and the steam-drum, or some other part similar to the steamdrum. Therefore that is what is understood by that expression, which, with that understanding, creates no uncertainty. That claim appears .to cover this new arrnngement, and to be valid. The fifth claim brings other parts into a combination with the same arrangement, and would appear to be valid so far as it is included in the third. The steam generator of the defendants has the inclined tubes, the communicating chambers, the steam-drum connected at the lower part with the water reservoir; and their description ·of its operation in their circula,r put in evidence is the same as that mentioned of the invention of Crawford. The location of the parts is somewhat different, but they appear toaccomplish the same thing by the same means in substantially the Slitne way, and to have thereby infringed the third claim otthis patent. Whether they infringe the fifth or not is not material, for an infringement of that would be an infringement of this, and the consequences ()fan infringement are not varied, so far as known by the number of claims This patent has expired, and no occasion for an injunction against further infringement of it is made to appear. No question of liability ()r relief is left, except as to profits and daU1uges. With reference'to those the defendant Pioneer Iron-Works appears· by writtenstipulatiol1 .with the orator uuder seal to have settled with the orator since the suit was brought, and while it was in readiness for final hearing,and to have paid to the orator $6,500 "in cash, to' cover the costs of the complainant in this suit against said Pioneer Iron- \V orks,und all dl,tlllllges for the in·
CO. II. PIONEER IRON-WORKS.
longement by the said Pioneer Iron-Works of the letters patent sued on," but "not to discharge Or license any parties who may have used or may hereafter use any infringing apparatus heretofore or hereafter made by the Pioneer Iron-Works, except as herein expressly stated, nor shall it release the Safety Steam Generator Company; all such claims and demands being expressly reserved." The defendant the Steam Generator Companyinsists that this settlement is a full answer to any further claim by the orator against that company on account of this infringement. The bill charges a joint infringement, which "said defendants are jointly concerned in and connected to" by the manufacture by the Pioneer Iron-. Works, ror sale made by the Safety Steam Generator Company, of steam generators containing each and all of the inventions contained in each and all of these letters patent. The answer denies all infringement. The evidence meagerly shows that the generators of the defendants contain the invention of this third clail)). The infringement of a patent is in the nature of a trespass upon the exclusive rights of the owner of the patent necured by it, for which an action would lie at common law. Bull. N. P. 75. The action would be an action on the case, as for a tort, in which all who participate are principals, and for which they are jointly and sev.erally liable for the 1 Chit. PI. 141; 2 Greenl.Ev. § 487. This is the form of action mentioned in the statutes. Rev. St. U. S. § 4919; Moore v. Marsh,7 Wall. 515; Mowry v. Whitney, 14 Wall. 620; Co. Litt. § 376, laid down this: "Also if two men doe a trespasse to another, who releases to one of them by bis deed all actions personalls, and notWithstanding sueth an action of trespasse llgainst the ot.her, the defendant may weI shew that the trespasse was done by him, and by another, his fellow, and that the plaintife by his deed (which he sbeweth forth) released to his fellow all actions- personals. and demand the judgment, &c., and yet such deed belongeth to his fellow, and not to him." This seems to be good law to this day. 2 Greenl. Ev. § 30; Eastman v. Grant, 34 Vt. 387. A plaintiff' is entitled to but one satisfaction of his -cause of action, whether but one or many may be liable, or whatever the form of action may be. Ji'oweU v. Forrest, 2 Saund. 48aj Lovejoy v. Murray,3 Wall.!. If the damages are actually paid by one, that is a suffi-cient satisfaction for all. If such payment is acknOWledged by deed, the actual cO,nsideration cannot be inquired into. If the plaintiff had brought .suit against the Pioneer Iron-Works alone, on the proofs in this case, as here understood and considered, judgment would have been recovered for all the infringement involved. After the satisfaction of such judgment no action could be maintained against the Safety Steam Generator Company fo:r the same infringement, because the plaintiff would be fully satisfied for that. The infringement by one is the same as that by the <:lther;' 31)d when satisfaction is made for that, the whole is satisfied. The payment and acknowledgment .)f it cover all damages for the infringement by the Pioneer Iron-Works, and that includes all the infringement involved in this case, and covers all damages for it. The agreementexpressly proyides that the Safety Steam Genet:lltor Companyshall !lot be released, but, whether released or not,' the orator has no unsatis- .
:: FEDERAL REPORTER.
against that company. 'Thiscase differs this resMct from (Jhamberlin v. Murphy, 41 Vt. 110, where part satisfaction wR$received from some ,of the defendants, and they were discharge(l withQllt the liability of the others for the residue. the payment was received for but a part, and the rest of the cause of action was expressly reserved. ,:Here the payment is received for all the damages, and only the liability. of the other defendant, so far as this case is concerned, is reserved. That liability was reduced to nothing when all the pamages were paid. .The orator urges that the recovery of damages from a manufacturer for infringe.ment does not relieve a seller or USE'r, afterwards, from liability, anQ.. tllateven the recovery of damages from a seller would not relieve a subseqqent user;Rnd argues from these premises that the Safety Steam Generator CPmpanyis or may be liable beyond the Pioneer Iron-Works. BirdseU v. Shaliol, 112 U. S. 485, 5 Sup. Ct. Rep. 244. But as this case now stands, both of the defendants were liable for all the infringement 'Qyeither as maker, seller" or user, and all the datpages for all of this have been paid. Nothing is left in that or any other view which has been presented or suggested itself.' This result may not have been, and probably was not, intended by the orator and the Pioneer IronWorks, in doing what they did; still the conclusion that such 'is the it seems to be unavoidahle. As there is no relieftowhich the orator appears to be entitled against the Safety Steam Generator ComPllny, the bill must be dismissed as to that company. This conclusion would have rendered any inquiry into the original' liabilhy of that company unnecessary but for the question of costs. There ,are 'no costs for which one defendant was liable that the other was not, that'are made to appear. All the costs for which one defendant was liab1eate paid. There are none for which the other ,,'as liable remaining-to be recovered or paid. But both were liable for costs, and neither was entitled to any, as the case has turned, when the costs were incurred. For that reason neither has ever become entitled to costs. The stipulation provides for an injunction against the Pioneer IronWorks, Witnesses appear to have been examined as to some prior patents which are material as to questions of anticipation, and which were not setup in the answer, nor formally put in evidence, but have been treated as regularly in the case for. that purpose on the argument and in theconsideration. of the case. Motion was made, and submitted with the case, for the ,amendment of the answer, and the allowance of these patents as being formaily in evidence. That motion is granted to make thecase complete. Let an order ,be entered for the amendment of the answer, and the allowance of these patents in evidence; and let a decree be entered for an the Pioneer Iron-Works, according to stipUlation, and dismissing ,the bill as to the Safety Steam Generator Company, without costs, and without prejudice to the validity of the third claim of th& CI:.lI;w.ford patent. ;
THE DORA. MOORE
11. THE DORA.
(DiBtrl'ct Gourt, E.]). LottiBiaM. May 25, 1887.) 1.
SmrPIl\'G-BOTTOMRY AND BEsrONDENTU-WlUTCONSTITUTES.
The master of a ship. having need of money in a 'foreign port. executed two Instruments to secure loans, the tenor of which was that the master, for necess.ary disbursements of the vessel, pledged the vessel a.nd freight for the payment of the amount expressed, to be made 10 days after the arrival of the Bel at the port of destination, any other draft or obligation to be secondary. Except by implication there was no renunciation of the claim for repayment ofthe loan, unless the ship arrived at her port of destination. Hela,that.these had the force anll validity of bottomry bonds.
SAME-'RANK-As BETWEEN BONDS ON SAME
, In a question as to the rank of two bottomry bonds upon the. same ship,the fact allpeared to be that the obligations, though dated one one day, and the other the next day, were for moneys expended during the same period and to relieve.the same necessit,.. Held, since the priority must be determined accordmg'to the necessIty at the time of the advances, and these advances were contemporaneous.an,d furnished relief from the same wants, the obligations must rank as of the same date. , .
A ship made jettison6f part of her cargo, and upon her arrival In a foreign port was libeled and .sold. Held, that the claims' of the agents of the ship for money .advanced in paymllnt of lIer pari of the geneJ;'al average should be paid out of'.the proceeds of the sale, before the bottomry bonds. . The lien of a ship's agents in a foreign port for money advanced in payment of her part of a general average arising out of a jettison of part of the carg<\ is a lien enforcealile by a proceeding m ,.em in admiralty. ' A ship deviated from her course, and, after making jettison of part of her cargo" reached a foreign port. Hela that, upon a libel and sale of the vessel, for the preseryationof the a claim of the ship's agents f()r ship' after she reached the harbor, and after she was condemned. to place her in a condition where she ,could be sold as a condemned vessel, should be first paid,before the bottomry bonds.
OF AGENTS' LIEN.
8. SAMllJ-ADvANcES BY SHIP's AGENT FOR GENERAL AVERAGE.
SAME:""ExPENSES IN PREPARING SHIP FOR SALE.
In Aqmiralty. E. W. Huntington, for J ..& C. Moore & Co. H. DffYI,is, for Hope Ins.. Qo. anli claimants. T. Sernme8, for S. A. Coslllich.
BILLINGS. J. These threecauseflj consolidated and tried as one, preeent the fQIlowing state of facts: On the 10th and 11th days of March, 1886, Austrian ship Dora was at Pensacola,Fla., laden for a voyage to Genoa, Italy, with a cargo of lumber. Having need of money and being without funds, the master. made and deliv.ered, tWQ instruments,-the one, for.6,OOO francs, on March 10th; and for 617 pounds sterling, upon March 11th. The tenor of these instruments was that the master, for necessary disbursements oUhe ves,sel, vessel and freight for the .payolent of the amount.;.ex-