FEDERAL REPORTER, Y01.
proximity to the ink at the mouth of the reservoir. A lip or tongue, to the upper or, if preferred, to the under flexible if side of the pen, in such a maDner as to provide It thin space between the pen and lip transverse to and in communication with the slit. The channel thus formed for ponducting the ink to the point of the pen is Tshl1ped in its cross-section. By "the attraction of adhesion" the opposof the channel insure the flow of the ink to the point of the used in writing. Tbis lip or tongue may be formed in any ap'pjnpriate maDllel'.. It may consist of a slip of gold, rubber or other suitinserted in the same manner as the pen and parallel thereit may Qe inserted in a socketforr,nedexternally in the bolder, it may be a prolongation of the holder itself, or. it may be formed upon or att/j,cq.ed to the lower end of the feeliing-l?te%. "The feeding-stem isa ,devicedesigiled to insure the regular descent of the ink within the reservoi'rwhenthe latter isnf such dia.meter that under ordinary conditions the ink would be maintained in the upper part of said reservoir by at:J>ressu.. .below, and.,. interfere t.be opera. oft_aipen by faIlmg to regularly supply the same 'WIth 10k, the saId stem being so constructed in itself or so arranged in relation to the walls of the reservoir as to provide what may be termed an 'internal capillary channel,' through which a small curr\3nt of ink may flow downward, leaving the air in the surrounding space free to move' upward, thereby insuring, more especially when the holder is of very small diameter, tlIe downward feeding of the ink to t4e portion of the peri, by means hereinbefore. explaineli, it is transferred. to the The said. stem may therefore consist of a single flat strip other suitable mate:rialplaced close to butnot in actual contact ,,!ith one of the sides, of the' interior. of the reservoir, or of a single strip grooved or V-shaped in its cross-sectlon, or its equivalent may be prqy:iqe<I by longitudinally grooving the internal surface of the reservoir, the:Wlllls or surfaces of the said grooves serving the saIne purpose, beca\lse of their adhesive attraction, in substantially the same way as does stem- itself when applied as hereinb!'lforeexplained. It should be that the fe.e<,ling-stem facilitates the operation of filling the as well as the feeding of the ink to th(l pen." of the claims are involved. They areas follows: "(l)Ina thecombination of the followingelements,to-wft: au ink reservoir closed air-tight at its top and open and internally unobstructed.at the bottom for the passage of air lind ink, a slitted pen attached to the pe;rmanentlyopen bottom of the reservoir, and a lip or tongue the inner surtaee of' which is applied"parallel with-the pen to form, conjointly with the surfaceaild the slit of tha'pen, a channel for<conducting the ink directly from the open lower end of the reservoir to the point of the pen; all substantially as and f91 the purpose herein set forth. the combination of the following elements, to-wit: close(t air.tight at its top and open aM internally unobstructEjd an flOttOm .for the passage of air. and ink, a sHtted pen attached to the open 110ttom of the reservoir, and a lip or tongue the inner fac8of'wbich 1I.applied.parallel with tbe paD to form,conjointly with the
SACKETT V. SMITH.
surface and the slit of the pE:'n, a channel for conducting the ink directly from the open lower end of the reservoir to the point of thE:' pen, and a feeding-stem 10C'sted within the reservoir and with its lower end connecting with the channel aforesaid, and with its upper end extended to or near the closed upper end of the reservoir to insure the descent of ink to said channel, all substantially '1S and for the purpose herein set forth. "(3) In a fountain-pen, the combination of a holder or reservoir closed airtight at the top and open and internally unobstructed at the bottom, It slitted pen. and a feeding-stem placed within said reservoir with its upper end extended to or near said upper end of said reseJ;voir and provided at its lower end with the lip C, placed over and adjacent to the back and slit of the pen, all as and for the purpose herein set forth." The defenses are want of novelty and invention, unlawful expansion .oithe claims and non-infringement. :As to the second.claim of No. 347,961 it is quite clear that if a conis placed upon it broad enough to cover any pen it is void for want of patentability, and ifconfineq.to the exact combination described .by the patentee it is not infringed. The English patent to William E. Wiley, sealed April 24, 1857, describes a tubular pen-holder fOJ: an ordinary dipping pen "made with two grooves qn opposite sides of its interior for the purpose of holding the pen, the being,:by such means, to cause penS· to be held in tubular holders in a central position." Other references show somewhat similar constructioIlEl. It is beyond question, tJlerefore, that no one can hold a pat(lnt for a pen-holder the only alleged novelty being that it is provided with grooves for holding the pen in place. This method waS old a quarter of a century ago, and even if it had not been suggested by Wiley and others, it is, at least, doubtful its use in a pen-holder would require an exercise of the inventive faculty in view of the many analogous uses to which grooves are put in all the mechanical arts. The claim cannot be upheld, therefore, if construed;as the complainant insists it should be, to cover an improvement which relates merely "to holding the pen in place in the lower end of a fQuntain-pen reservoir;" and, if it is limited to the peculiar form of pen described in complainant's patent the defendant does not infringe. He has no slitted pen, as that term is used in the patent. The upper end of the slit in his penis far below tbe ink space of the reservoir. On the other hand, the fundamental idea of the complainant is to carry the ink to the point of the pen by bringing the upper end of the slit in direct conununication with the ink in the reservoir, so that the ink will be directed down the slit by capillary attraction. In order to accomplish this a pen is used having a long slit and about twice the thickness ofan ordinary steel. pen. The defendant's structure, manufactured under a patent gr!lnted to Paul E. Wirt, has a thin gold pen about half the thickneSS .of a steel pen. It. is quite true that Wirt uses grooves, but he has a right, use them. He does not employ them to hold the complainant's pen in position, or to hold any pen in position) to accomplish the purpose set forth in complainant's patent. The court does not decide that this claim is invalid, but that if tlpheld at all it must be for a com· the defendant does not use. v.42F.no.14-54
patent No. 353',162 it w,ill be observed that claim1'is for ina fountain-pen containing the followingelement!l: .. First An, inl(reservoir closed top and open and internally ,mIlot the bottom, for the passage of air and ink. Second. A slitted pen attached to the permanently open bottom ,of the reservoir. ,Third.: A lip or tongue, the inner surface of which is applied parallel Wifhtheren:;:tofbrm, conjointly with the surface and the slit of the pen, a ,9Qappe,for conductipg the point of the pen: -.' In short,. it is of a slittedpen ipserteP,inthe open aJ?d . unobstructed end of the holder, ,the pen being provided with a parallel lip. The other claims are narrower than the first, additional elements behlg lidded. 'They 'w'ill be considered' in detaill'atet on; , In view of what was known prior to complainant's invention a broad construction oftheset claims is out bf the question. ·Fountain-pens in many varieties and <>peratingupondifferentpri6ciples had long been' known. Allthis, if confined to the so-called "gravity" pens, is conceded. But the idea or using-l:ttmospheric presBure and a capillary feed was_not original, with the 'complainant. Intbe specificationfi'led in the pktent-office by MarStone, Ootober15, 1881, -belorelthe earliest date fixed for, the vin lnvention"tbegeberol of operation aboveallud'ed to is clea.rlyenunciated:.: This evidence is important as corroboratorS" 'of the omltEistimonyshowingtwlhatw8.s actually constructed. by Stone. He _ says',that the invention "consists'in supplying ink to ttie pen from the founbl-in 'by ca. pillarya.ction consisting 'of to figure of the Jpent and'8ippliedthereto' llppi'oorhnlitely in contaettherewith on both the conicavoeand convex Burfaces." : Arid 'ogain:"Eis the compressible elastic 'porous 'ink-feederwhlch 'is' used to retain hlk in and feed air to the resen-oir' and to feed ink to ,tbepen..'* * operation. of my invention is as follows: The pressure oftheair upon the ink which saturates the feeder retains the ink in the holder:"'" * - * The 'pen which is inserted between the two closely fitting plates that conform to its shape has its nibs constantly supplied with Ink by' the capillary tion of the· surfaces of the pen 'with the surfa<les of its adjacent plates: * 'Tbe two plates perform the double offieeof feeding the pen with 'ink· by capillary action and serving also as ahi>lder for the pen i'tself. *. * The holder or pen receptacle should hug the pen very tightly at every point in order that the capillary action may be as perfect and'as little affected by gravity as possible." A patent was granted to Stone June 27, 1882, No. 260,134, for a fountain pen-holder. It is not pretended that the Stone pen was a perfect writing instrument; or that it can be compared in this regard with either the complainant's or the defendant's structures, but it cannot be doubtedth'atthe principle u!>'on which thesein.prov-ed pens operate waS known to Stone and by himembodied j though ina somewhat crude lind unsatlsfactoryform, beforetbedate of complainant's invention. Wirt,·too,8.S early as the summer0f 1881, had hUupon a similar line of investigation and had constructed a rudimentary pen which operated upon the capillary ciple. This pen not only had 'an open' reservoir in which the ink wail
SACKETT 11. SMITH.
retained by atmospheric pressure, but also a lip applied to the pen for feeding the ink from the to the point Qf the pell. That he made such a structure is established by the testimony of nine witnesses, all of them unimpeached and, apparently, of high standing and respectabilit)'. At least five of them are entirely disinterested. Their testimony has been criticised with great severity and elaboration and several discrepancies and inconsistencies are pointed out. But after all they agree, substantially, upon the main proposition, there is nothing improbable in their story, no motive has been shown for wholesale perjury and no view of the matter has been presented which will justify an arbitrary rejection of their testimony. The language of Judge SHIPMAN in Hershey v. Blakesley, 33 Fed. Rep. 922, seems peculiarly applicable. He says: "I am fnllyaware of the ease with which honest witnesses can persnade themselves they remember some by-gone which they are ingeniously induced to think that they rllmember; but, in this case, I do not perceive any manipulation of these witnesses, and I think that their testimony was not manufactured, aud they were not mistaken. There is nothing improbable, either by reason of the state of the art or of the character of the improvement. in the history which is given." Other evidence has been introduced, but it is unnecessary to discuss it, for it is already quite evident that the complainant did not enter an undiscovered field whose virgin soil had theretofore remained untrodden by the foot of the inventor, but that this is one of the cases referred to by the supreme court in Bragg v., Fitch, 7 Sup. Ct. Rep. 978, where the invention "is but one ina series of improvements all havinll; the same general object and purpose; a.nd that in construing the claims of the patent they must be restricted to the precise form and arrangement of parts described in the specification, and to the purpose indicated therein." In addition to what has already been said. applicable to all three of the claims, it will be noted that" a feeding-stem located within the reservoir * * * with its upper end extended to or near the closed upper end of the reservoir" is an element of the combinations covered by claims 2 and 3. It seems unnecessary to spend time in discussing the meaning of the words quoted. They are too plain to admit of doubt or cavil. There is no room for misunderstanding. An architect who agrees to run a ventilator shaft or a steam main to or near the roof of a manystoried building, does not fulfill his contract if his shaft ends at the story above t}:1e basement. So one who uses a pen with a feeding-stem which extends a third of the way up the holder does not infringe a claim which provi4esJor a stem extending the entire distance, or nearly so. The l,anguage,of these claims was adopted deliberately and with fuB knowledge ofitJ3 restrictive import. The drawings not only show a feedingst",mextenliingto the upper end of the reservoir, : put one actually in .and attached to the upper end. Surely, the claims do not insists, a stem which extends "to any desired the .The contention that the language under ,the closed qpper end of that part of the ra-
servoir which co-ordinates with the, stem in doing, the work and securing the required effect" is ingenious certainly but at variance with the plain illlportof the specification. claims and drawings. There is no process of reasoning by which a claim, expressly limited to feeding-stem extending to the upper end of a pen-holder, can be construed to cover a stem which is wholly confined to the lower end of the pen-holder. It cannot be tortured into a construction so strained and unnatural. There is nothing ambiguous about the claim. The language is perfectly plain and simple. It is riot a case where the court is permitted to speculate upon what might have been done or what should have been done in the patent-office. We are dealing now with what was done. Claims are construed as they are, not as they might be. The complainant accepted the patent with the claims thus limited and it is now too late to alter or extend them. He must abide by them as they stand.' As was said by Mr. Justice BRADLEY in Keystone Bridge Co. v. Pham:i:x Iron Co.., 95 U. S. 274, 278: , , "When a claim is so explicit, the c,ourts cannot alter or enlarge it. * * * They fthe patentees] can,not expect the courts to wade through the history of the art, and spell out what they might have claimed, hilt h;we not claimed. * * * '£h6ro [in the patent-officel his claim is, or is supposed to be, amined, scrutinized, limited. and made ,to conform to what he is entitled to. the office refuses to allow him alI that he asks, he has an appeal. But the courtl! have no right to enlarge a patent beyond the scope of its claim as al· lowed by the patent-office. * * * When the terms of a claim in a patent are clear and distinct, (as they always should be). the patentee, in a suit brought upon the patent, is bound by it. Merrill ,v. Yeomans, 94 U. S. 568. He clln claim nothing beyond it. * oj< *As patents are procured ex parte, the pqblic is not 1)ound by them, but the patentees are. And the latter caunot show that invention is broader than the terms of their claim." The defen'dant is selling pens constructed letters patent No. 311,554, granted to PaulE. Wirt Febnlary 3, 1885. Into the lower end of defendant's pen"holder is screwed a perforated nozzle through which \he ink is conducted to the pen. The passage through the nozzle, when compared with the interior of the reservoir, is very small. The reservoir il'lobstructed at the hottohl by the presence of this.nozzle. The ink does not flow as freely with it as it would without it. "Unobstructe'd," means free from obstacles or irnpedimf>nts which check, hinder or retard passage." It is by no means synonymotlswith "open." The complainant clearly understood this for he uses both words-"open and unobstructed." He meant to convey'the idea of a reservoir not only open but unobstructed also. His drawings show this. Had a penholder like Wirt's been presented as a reference by the patent-office officials the cornplainant would probably have argued that it was not an anticipation, because Ii. reservoir contracted from a large opening at the bottom to a comparatively small one was notan unobstructed but an obThe defendant's holder is open because it has a hole structed at the bottom, but to say that the insertion of the nozzle does not impede and obstruct the flow of ink from the reservoir is like saying that a river is not obstructed by a datn,or a stove-pipe by a damper. The defend-
GtERARD ". THE LOVSPRlr>G.
ant does not use the feeding-stem of the second and third claims. Not only does his stem 6top far short of the upper end of the reservoir, but it is not provided with the U-shaped groove, or placed close to the wall of the reservoir so as to form the "internal capillary channel" of the patent. Other differences between the two structures exist, but they are of minor importance. Sufficient dissimilarity has already been pointed out. I 30m constrained to hold, therefore, that the defendant does not infringe. 'Where the patent relates only to a progressive step in a series of improvements the tendency of modern decisions is more than ever towards a strictcoDstruction of claims and a finding of non-infringement in doubtfulcases. Snowv. Railway Co, 121 U. S. 617,7 Sup. Ct. Rep. 1343; Newton v. Manufacturing Co., 119 U. S. 373, 7 Sup. Ct. Rep. 369; Paving Co. v. Schalicke, 119U. S. 401, 7 Sup. Ct. Rep. 391; Hartshorn v. Barrel OJ., 119 U. S. 664,7 Sup. Ct. Rep. 421; Grier v. Wilt, 120 U. S. 412, '1 Sup. Ct. Rep. 718; Brewing Co. v. Gottfried, 128 U. S. 158, 170, 9 Sup. Ct.' Rep. 83; McCormick v. Graham's Adm'r, 129 U. S. I, 9 Sup. Ct.. Rep. 213; Sargent v. Burge88, 129 U.S. 19, 9 Sup. Ct. Rep. 220; Peters v. Manufacturing Co., 129 U. S.530, 9 Sup. Ct. Rep. 389; WaterMeter Co. v. Desper, 101 U. S. 332. It would seem that the world is wide enough for both these patentees, and that each should be permitted to enjoy the fruits of whatever novel features he has supplied to the art. The bill is dismissed.
(DiBtrWt Court, D. Smith Carolina. May 16, 1890.) L
SALE-WREN TITLE PASSES.
Libelant contracted to sell and deliver of a chartered vessel, for lOad. ing, a quantity of phosphate rock. He had a copy of the charter-party in his possession, and selected the stevedore and lighterman himself to deliver the rock. After several lighters had' been delivered and made fast to the vessel, one of them capsized. Libelant took bills of lading to his OWJ1, order, and surrendered the receipts of the ship-master for all the rock except the load tl1Us lost, the receipt for which he retained. Held, that libelant showed an intent not to pass the property in the lost rock, but to retaip. the jU8. disponend'l,and a suit therefor against the vessel was properly brought in his own name as owner. The charter-party provided for delivery of the rock, "the cargo to be brought Q,long-side and taken frolll along-side fre!'! froJ;ll expense and.risk to the ship," lOl\ld the charterer reserved "the option of appointing stevedore for loading at the sbip's expense." There was no provision that lohe stevedore was to act uuder the master's orders. Part of the rock was towed to the ship in lighters, and made fast, andre. ceipts therefor were given by the master. One of the lighters, after being fastened, capsize.!, losing. her load. Held, that an action in rem for the lost rock could. not be maintain.ed against the vessel.
ADMIRALTy-PROCEEDING IN REM.
In Admiralty. Brawley & Barnwell, for libelant. J.P. K. Bryan, for claimant.
SIMOr>'rON, J. The libel is filed for the recovery of the value of a lighter 'load of phosphate rock. Libelant on 26th December, 1889, by sale bill, :sold toone Gesterding, of Hamburg, Germany, about 2,000 tons kiln-