(Oircuit OQurt, No D. New York.
1.RR-IsSUEDLETTERS PATENT granted to John Deuchfield, January 16, 1872, for 14 years from April 20, 1858, "for an improvement in cooling and drying meal," held, not void for want of novelty. 2. SAME-IDENTITY OF PATENTEE.-A re-issue to John Deuchfield is not void because the original patent was issued to John Denchfield, where the change in the letter was a: inere clericaland accidental mistake of the 'patent-office, and no question had been raised at the taking of the proofs as to the identity of the patentee, and where there was in fact sufficient evidence given to show that the original and re-issue were issued to the same person.
Benjamin F. Thurston and Edward S. Jenney, for plaintiff. George Harding and George B. Selden, for defendants. BLATCHFORD, C. J. This suit is brought on re-issued letters patent granted to John Deuchfield, January 16, 1872, for 14 years from April 20, 1858, "for an improvement in cooling and drying meaU' It is the same patent which was the subject of the suit in Herring v. Nelson, 14 Blatchf. 29.3. In that case,afterfull consideration, the re-issued patent was sustained against the objections that it was not for the same invention as the original patent; that new matter had been introduced into the specification of the re-issue contrary to the statute; and that the patentee was not the first inventor of what is claimed in the first claim of the re-issued patent. The defendants in the present case do not ask for a review or reconsideration of any of the specific questions disposed of in the former case. But two new matters are brought up on the question of novelty. One is a patent granted in England, December 8, 1853, to Joseph Robinson. The other is an addition granted July 31, 1840, to a French patent granted April 21, 1837, to one Cartier. The Robinson patent cannot be held to be an anticipation. It is clear, from the drawings of the plaintiff's patent, that the curbs of the mill are open curbs, as distinguished from close curbs; that is, are the open curbs which were in general me in the Americl1n mills at the time. Open curbs are curbs (lr
835 covers over the upper millstone, proviq,ed with a circular opening over the eye of the upper stone.. Thifi; eJ;lables the air in the plaintiff's arrangement to pass over the top of the upper stone, and through the annular space between the outer edges of the stones .and the inside of the curb,. and thilnce, with the meal, through the closed meal spouts, into and through the closed meal chest. In the Robinson patent the small orifice in the center of the top of the curb is tightly stopped up by a tUbe which extends downward into the eye of the upper stone, the outside of ·the tube filling the interior of the eye. The object must have been, as the necessary operation was, to prevent the passage of air over the top of the upper stone, inside.of the curb, and to force it to go. down into the eye and between the grinding faces of the stones. Thus, the operation is the reverfle of that in the plaintiff's patent. Moreover, Robinson has no current of air traversing the length of the meal cnest and carrying'off the moisture which arises from ·the:r;neal as the sorew conveyor operates upon it. The elements combined in Robinson's are not combined in the same way as in the plaintiff's patent, to produce.the same result by the same mode of operation. As to the Cartier arrangement, which is the one most earn· estly pressed, I have examined with care all the evidence in regard to it. . It would be unprofitable to discuss such evidence minutely. It is sufficient to say that the description and drawings of Cartier do not. furnish such clear and nite information as to enable a skiU-ed person, beyond any teasouable doubt, by following them; without aid from anything not known when they were made, to construct anappamtus like the plaintiff's·. They. do not meet the requirement of law in regard to w.hat is necessary, in a prior: description: and drawings, to defeat a subsequent patent. They are· neither full nor clear nor exact. The only other point urged in defence is that the original patent was granted to John Denchiield, and that is to John Deuchfield, and :is.. The patent ..that theorigina..lwas
John Deuchfield; that it had been surrendered and cancelled, and that a new patent has been ordered to issue to "him." The plaintiff has put in evidence a certificate of extension which states that on the petition of John Deuchfield for the extension of the patent granted to him April 20, 1858, and Ie-issued January 16, 1872, it is extended for seven years from April 20, 1872. An original patent is in evidence which was granted to John Denchfield, April 20, 1858, for 14 years from that day; and there is no dispute that that is the patent which was surrendered when the re-issued patent to John Deuchfield was granted,·· a.nd that no original patent was granted to John Deuchfield unless the one so granted to john Denchfield was one. The real name of the man was Denchfield. The mistake was clearly one made in the patent officea clerical and accidental mistake in taking the letter n to be the letter u, The defendants did not, at any stage of the taking of the proofs in the cause, raise any question as to the identity of the person to whom the re-issue was granted with the original patentee, either when the documentary proofs were being put in or when the oral· testimony was being taken. In the defendants proofs the questions to their witnesses, and the answers thereto, refer to the re-issue as having been granted to John Denchfield, and as having been granted to the same person to whom the patent of April 20, 1858, was granted. If the point had then been suggested doubtless the plaintiff would have proved, in fact, the identity of John Deuchfield with John Denchfield. Such identity seems to have been shown in Herring v. Nelson, the evidence in which case is made part of this case by st'ipulation and notice. The question is one of identity merely. Panes v. Whitbread, 11 C. B. 406; Jackson v. Boneham, 15 John. 226; Jackson v. Cody, 9 Cow. 140. The defendants gave no evidence to show that there was any such person as John Deuchfield, or that the re-issue was not intended to be issued, or was not, in fact, issued,· to the same person to whom the original patent was granted. Indeed, there is sufficient in the proofs, in the evidence given by the plaintiff '80880 witness, to show that the
person to whom the original patent was granted, name was John Denehfield, was the person to whom the re-issue was granted. Such proof is always competent ina. case like this. Jackson v. Stanley, 10 John. 133. See Northwestern FireE:ctinguisher Co. v. Philadelphia Fire Extinguisher Co. 6 O·.G. of Pat. Office, 34. Infringment of the first claim of the re-issue is proved, and not contested. As the patent has expired there can be no injunction, but the plaintiff is entitled to the usual decree, in other respects, in regard to said first claim.
OBHANOVIOH, Master of the Bark Rebecca,
(Circuit (Jowrl, E. D. Pennsylvania. October 28,1880.)
ADMIRALTY-CoLLISION-ToWING-ORDER IN WHICH VESSELS SHOULD Blll TOWED.-A tug held responsible for damages by a collision between two vessels in tow while passiJ'lg through a narrow, shallow channel, where it appeared that one Of the vessels was known to be a bad steering vessel, and had been placed by the master of the tug behind the other vessel. 2. SAJtm-CoNTRffiUTORY NEGLIGENCE-ORDER GIVEN AT MOMENT 0.. IMMINENT, PERn..-The injured vessel held not to be liable for an order given at a moment of imminent peril, caused by the bad steering of the other vessel. S. BAJtm-DAHAGE-BILLS FOR REPAIRS- WHEN PRIMA FAcm EvtDENCE.-Upon the question of the amount of repairs necessitated by a collision, the testimony of the master as to the aggregate cost of the repairs, and the testimony of the vessel's agent as to the payment of the bills, together with the production of the bills receipted, constitute prima facie evidence of the amount of damage, without calling the men who did the work. 4. tillm-Loss BY DETENTION-RATE 011 DlllMURRAGE-WHlllN PRIMA FAcm EvmENClil.-Upon the question ofdamages by detention while undergoing repairs, the rate of demurrage fixed by the vessel's charter-party, accompanied by evidence that it is the, rate adopted by th,e maritime exchange of the port, is prima facie evidence of the amaun' of loss. .
Appeal from the decree of the district court, in admiralty.
-Reported by Frank P. Prichard, Esq., of thO' Philadelphia