and limit the scope of the patent as the original patent would be limited by judicial construction, upon'proof of the prior state of the art, in a suit brought upon it.. They tend to define more clearly the line between new and old, and therE\by to remove doubts as to the precise limits of the. invention. There is no substantial difference between the claim of the original, interpreted as it would be if a suit were brought upon it, and the prior state of the art shown, and the claim of the reissue, except that in the latter the rubber ring around the valve is omitted as an element. It is obvious that the rubber ring around the flange or rib of the valve, although useful, wae only an incidental alid preferable feature of the invention, so obvious that the inference that there was a mistake in incorporating it into the claim of the original is almost irresistible. The claim of the reissue omits as an element the T coupling, which is the of the valve, and forms the connection between the basin-pipe and By necessary implication, this must the waste-pipe and the be read into' the claim of the reissue; otherwise the combination would be wholly inoperative. of the reissue is consequently, in all respects, the claim of the orIginal, except in omittiI).g the rubber ring around the vnlve. In short, a com'parison of the original and reissued patents suggests that the powerbf the grant a reissue, to cqrrect a mistake which would render theotiginal patent inoperative, has seldom been inore wisely and reasonably than in the present instance. '. ' ':The complainant is entitleq. to the usual decree for an injunction and accounting. So far as biscase proceeds upon the theory of an infringement of his trade-mark, if is controlled by the previous decision of this court, upon the demurrer to the bill, by Judge SHIPMAN. 39 Fed. Rep. 209. ' ,
ROOT f:'. SIOUX CITY CABJ,E
(Oircuit Oourt, N. D. Iowa. June 2, 1890.)
P.lTENTS FOR INVENTIONS-PRIOR STATII Oll' ART-CABLE RAILWAys-GRIP.
Letters patent No. 160,757, Maroh 16,1875. to William E\lpelsbeimer, for an improvement in olamp apparatus for conneoting street-oars with endless traveling devices, oonsisted ofvertioal pulleys to support the cable, and a lower clamping jaw, ",biob, wben the car was being ,propelled, was raised so as to grasp the oable between it, and an upper stationary jaw, thus raising the cable from the pulleys. When tbe oar was at rest, the lower jaw dropped belowtbe pulleys, releasing the cable, and allowing it to rest upon them. HeW, tbat, sinoe there were already inventions for such olamping bars and for supporting pulleys, the patent oould not be broadly oonstrued, and was not, therefore. infringed by a devioe conaillting of a nl0vable upper jaw, whioh, when the car was in motion, pressed the oable down upon a stationary lower, jaw, w"b,iOh was slightly below tbe surface of tbe,pulleys. , ,on wbioh the oable rested,b<)th while the oar wasin motion and at rest, and whioh, 'when the oar was at rest, was raised, allowing the oable by its own.train t9 risefrom the lower jaw. " , '
Bill to restrain infringement of letters patent.
ROOT V. SIOUX CITY CABLE RY. CO.
Coburn & Thacher, for complainant. C. L. Wright and Offield & Towle, for defendants.
SHIRAS, J. Letters patent No. 160,757 were issued'to William Eppelsheimer under date of March 16, 1875, for "an improvement in elamp apparatus for connecting street-cars," etc., "with endless traveling devices." The second claim in the patent is as follows: "In combination with the lower jaw, L, the transverse bar, 0, with its vertical rope supporting pulleys. P, substantially as described." This com bination forms part of the gripping apparatus, which, by taking hold of the moving cable furnishing the motive power, propels the car upon the track. In effect, this grip consists of two jaws, one above the other. the upper jaw being fixed, and the lower movable, so arranged that when clamped together the cable is held between them; when opened, the lower jaw falls, and the cable drops upon the two pulleys at the ends of the bar 0. The object of the device is to prevent friction between the moving cable and the lower jaw of the grip, when the car is at rest. Complainant, who is the present owner of the patent"claims that the defendant company uses a device upon its cars uppn the line in Sioux City, Iowa. which is an infringement of this seconq. claim of the patent named. The defendant questions the validity of the second claim of this patent on several grounds, and also denies that the device in use upon its line is an infringement. In view of the fact that. the validity of this patent was sustained in the case of Root v. RciilTOad Co. · 39 Fed. Rep. 281, I shall. not re-examine that question, but shall pass at once to the issue of infringement. In the consideration of this question, it is neceElsary to ascertain the scope of this claim,-whether it is to be given a broad construction, as being essentially a foundation invention, or whether the prior state of the art requires it to be limited to the exact combination described. There are two features shown in the combination in question,-one being the clamping jaws. and the other the supporting pulleys to receive the weight of the cable, when released by the unclamping of the jaws. It is admitted by counsel for complainant in his argument that "it was old to have a gripping device with one movable and one stationary jaw for clamping the the cable to transmit the power to the car, and release the cable whenever it was desired to stop the car.". The use of pulleys to carry the cable, and prevent friction and injury thereto, was also old. The novelty in the combination is claimed to consist in attaching to the ends of the gripping device. two vertical pulleys, by which the cable is supported when the car is stopped, and thus the wearing of the lower jaw by friction is avoided, as well as avoiding the effect of friction on the cable itself. In the testimony of complainant's expert witness, Willi/lm A. Skinkle, it is said: "I do npt hold for a moment that Eppelsheimer was the first or only inventor to provide a supporting pulley or pulleys in a gripping device to carry the cable when it is released from the grasp of the gripping jaws, for Hallidie, Foster & Brown, Beauregard, and others show pulleys that do Of would serve this purpose; but in no une of them do I find such a combination of specific elements I, . as the claim
If this be true, then Eppelsheimer was not the first inventor of the idea of attaching pulleys to. theg.rip for the' purpose of supporting the cable when released from the grip. The novelty, therefore, in the Eppelsheimer ri6mbibation, Seems to 'beireduced to dropping the lower jaw so that it will not be in conta.ct with the' cable when the car is at rest t thus escaping friction, andcoD:Sequent injury thereto.' In this combination, when the jaws of the grip are closed in order to Set the car in motion, the cable is raised up frOfD.Contact with the pulleys by the upward movement of the lower jaw. The gripping effect, therefore, is wholly produced by the clamping ofthe cable between the jaws,and the pulleys neither support the cable,nor aid in the clamping effect, and consequently they perform no function so long as the grip holds fast to the cable. When the cable is released by the opening of the jaws, it drops down upon the pulleys, and is supported by them. To prevent friction between the cable and the lower jaw, the latter drops down below the surface of the pulleys on which the cable rests, and thus contact with the cable is prevented. In the device in use upon the defendant's line of railway, the lower jaw of 'the grip is stationary; and the upper one is movable. The pulleys are so placed that when the car is at rest, and the cable is running over the pulleys, the strain upon the cable keeps it level with the upper Burface of the pulleys, which is higher than the surface ofthe lower jaw, and hence no friction is producedpy contact therewith. When it is desired to connect the car with the cable, the upper jaw is pressed Gown, and the cable is clamped between the upper jaw the lower jaw, and the surface bf the pulleys. In this device the pulleys always serve a purpose. The cable always rests thereon, and is always supported thereby. In the device· of the Eppelsheimer patent, friction between the lower jaw and the cable is prevented by having the lower jaw movable, and dropping it below the line ofthe cable. In defEmdant's device the lower jaw is stationary, but friction is prevented by suspending the cable upon the pulleys so that it will not touch the lower jaw when the car is at rest. In the one case,the jaw is movedawny frOm the cable; in the other, the cable is removed from the jaw. It is argued that the difference between the devices llaving the lower jaw mdvable and the upper stationary, and the lowp,r jaw'8tatiol111ry and the upper movable, is so slight that .it should bebeld that the one is theeqilivalent of' the other. If the question arose as to the inventiorioftheclamp itself',-thatis, a grip having one fixed and niere interchange in the position of the jaws would not enable one toescitpe. the charge of infringement, but that is not the wliy" 'the question is now presented. What Eppelsheimer WllS seeking:to do was to prevent ii-iction between the cable and the grip. He sought to solve it by a combination, in which he put that form of a gripin which the lower jaw was'movable, and he combined this lower movable jaw Witbthe calTying pulleys iil such shape that, when the grip was. lqwer jaw cllrciedthe cable upward and free from the, when the grip was released, the cable returned upon the pulleys, and the lower jaw sank down out of
contact witb the cable. In this combination, the arrangement of the lower jaw and the supporting pulleys, which are the main. elements named in the claim, was such that, in the process of attaching and releasing a car from the cable, the lower jaw would first be below the line of the upper surface of the and then above, and then again. balow, the same. It \\,i)thel1otic6d.'that in the second claim of this patent there;isno reference totbe upperjaw of the clamp. ' The only elements mElntione.d are the 10\\'e1' jaw, the bar, 0, and th,esupporting pulleys. It is upon the working of these elements, and these alone, that Eppelsheim.er, relied for of the object sougbt, and, aJreadysaid, the, manner In wblchbe avoided friction between the lower jawofhls'device andt.be cablQ was by having thidower jaw movable, and dropping it below the Hne of the moving cable. In other words, contact with the caLle was prevEJrtted by usingafuovable lower jaw, so combined with the bar baving attached the supporting pulleys that the jaw could be droppedsufficient+Y to escape contact, with the cable. In the defendant's device the other form of grjp. was selected; that is, the one baving a fixed lower jaw" In this form between the cable and the lower jaw could not be avoided in the metbod followed by for, the lower jaw being it could be droppeq t-o Povoid conmct with the cable. The plan followed was to bave the supportiAlI: ,pulleysal1d jaw fixed with the i}urfaceof the. upper part of the pulleYSI IUW'ays higher than the surface jaw. Wpent1;le grip ·is relelUied and the upper or movllble jaw moves upward, the, I'ltrain upon the «;mble removes it frorp. contact wi,th the lower or fixed jaw. In the Eppelsheimer combination, the essentialelements are the supporting pulleys and movable .lower jaw, so combined together that when the grip is opened this lower jaw may ,drop beH>lV the level of the supporting pulleys, and to secure this it is essential that .the lower jaw be movable. In the defendant's combination this movable lower jaw is not used. In view of the prior .state of the art, ,a"broad construction cannot be given to the Eppelsheimer patent. He was not the inventor of the grip having clamping jaws. one movable and the other stationary, nor of the cable supporting pulleys. In making the combinatioll described in the second claim of the patent, he chose for one element therein that form of grip having a movable 10lVer jaw:"and the claim cannot, by construction, be now enlarged to embrace a combination which does not use a movable lower jaw, but .entirely elimilla,tes it. The charge .of infring,ement not being made out, it follows complainant's bill must be dismissed, 8,t his costa.
GREENWOOD 'V. THE FLETCHER AND THE GRAPESHOT. 1
(DiBtrlct Court, S. D. New York. May 14, 1890.)
1. ..o r"'GBB-SALVA.GB :M:oNBy-,INTERBsT-CosTs. , When a vessel was sunk by fault of another vessel, salvage money paid out by theowll,er oUhe sunken boat isa proper item of damage to be allowed against the wrong.doer, with interest thereon, as well as on other expenses of repair from time of payment, but not costs or counsel fees paid in defending a suit for such sal" . ' The boiler, on being removed from a tessel which had been sulik by collision, was found to be cracked. Libelant claimed'that this was caused by the sudden submE'lrsion of it in cold water while it was Held, that the claim, being of an ,unullual kind, olight to be sustained byevidencecorrellpondinglyconvincing. The evidenC'e not meeting this reqUirement, held, that this item should be disallowed, together With. such demurrage as had been ,allowed for while repairing the boiler.
2. SAMB-DAl,U,GB TO BOILER-Evl])ENOB.
In On exceptions to commissioners' report. ' Hyland' <to' .Zabriskie, for Wilco:t,;.4dama, k Macklin, for claimants. ,.\ ,
'1. The libelant's canal boat Hebe having been sunk in the North river through the fiult of the above defendants'vessel, (38 Fed. Rep. for salvage' services to the sunken boat afterwards arose, whiqh was allowed in the district courtof New Jersey to the extent $39 costs of suit. In the assessment of damages, the libelant has been allowed this salvage charge, but was disallowed the'costsliocliided in thedecrea, as well' as the much la.rger costs for the fees or his own counsel hicurred in the defense of that suit. Theqtiestion as to both these classes of costs arose in the eastern district of New York in the case 'of The Homely and The C. F. Ackerman, S Ben. 4950004'98, where both were disallowed as items of damage against, the .and this decision was affirmed by Mr. Justice HUNT on circuit court. 'I am not at liberty to depart ftom that adappeal' to . . judication. 2. Net>J/lreight. As respects the sum of $191.20 for the loss of thefreight On the'pending charter, I think there should have been a further deducti()n for expenses for the wages and board of the master, engineer, and deck-hand, for six days, amounting to $36. This would leave $165.50 for net frelgpt,which is allowed, with interest. . 3. Boiltr. I am not sati'sfied with the evidence. in support of theclaim for· damages to the boiler. The boiler rested vertically on top of the furnace. After the collision the boiler was taken out, and the lower end, or crown sheet, was found to have two or more cracks in it, which it is estimated would cost $262 to repair. The libelant contends that these cracks were caused by the sudden submersion of the boiler in cold water while it was working hot. No previous instance is shown, either to the adjudications or in the evidence, where the crown-sheet of such
Reported by Edward G. Benedict, Esq., of the New York bar.