H. TIBBE & SONS MAJSUF'G:(:oiv. LAMPARTER.
McKENNA, Circuit Judge. 'Fhe patent in this (Jaseis for a form 'of street rails. The patentee in his specifications admits that rails embodying the general features of his rail were old, andw8 think his spedal form involved no invention. It was but an obvious application ofwhat had preceded., Judgment is therefore affirmed.
(CircU'tt Court E. D. MiBB<lWI"f, E. D. September 5, 181l2.)
PATBNTS FOR INVBNTlONS-INVBNTION-INTERPRETATION-CORNCOB PIPES.
Letters patent No. 205,816, issued July 9, 1878, to Henry'l'ibbe, cla.imlng·" a smoking pipe made of corncob, in which the interstices are filled with. a plalltlc. selfhardening cement," must be interpreted as for corncob pipe in which the exterior interstices of the cob are filled with a self·hardening cement; and thOugh the 11l.ventlon Is' not of a high order, yet, in view, of the generally recognized .merit of the article, the patent is valid. Manufacturing Co. v. Rel.neken, 43 Fed. Rep. 75, followed. The fact. that prior to the application the bowls of corncob pipes had been varnished with shellac, unmixed with other substances, does not constitute all.ticlpa-
Nor is it sufficient to show anticipation that plaster of Paris had been used to fill small cavities or cracks occasionally found in the cob. The patent is not limited to the use of plaster of Paris for the filling. wat-erial, and it is an infrlngemen1; to use either a mixture of finely pulverized corncob mixed with cornstarCh, and moistened in the act of putting on by saturating the cob in alcohol, or a mixture of pulverized corncob and shellac.
In Equity. Bill by the H. Tibbe & Sons Manufacturing Company against Henry Lamparter for infringement of letters patent No. 205,816. issued July 9, 1878, to Henry Tibbe, for an improvement in corncob pipes. Decree for complainant. Paul BakeweU and R. A. BakeweU, for complainant. J. Hugo Grimm, for defendant. THAYER, District Judge. The patent involved in this suit was considered and sustained in the case of Manufacturing Ch. v. Heineken, 43 Fed. Rep. 75. It was there held that the claim of the patent should be interpreted as one for a corncob pipe in which the exterior interstices of the cob are filled with a plastic, self-hardening cement; that the making of such a pipe did not involve invention of a very high order. Nevertheless, as the result had been to convert a poor article into a good one, and to supply something to the trade which was new, and the merits of which were generally recognized, there was enough of invention to sustain the patent. The views thus expressed in the Heineken Case commend themselves to this court, and they are accordingly adopted.
Witbrefer.encetotheplea that the patent is void because the patentee was not the ,original andnrst inventor· of such a corncob pi pe as is described and claimed in the letters patent, it will suffice to say that the evidenee.betbre the court is riot adequate to maintain that defense. There is considerable testimony in the record tending to show that, many years prior to the application for the patent in suit, corncob pipes had been made, the bowls of which were varnished on the outside with shellac, to protect them from dirt, and to give them a more finished appearance. But, even conceding that to be the fact, it does not show that Tibbe's invention was Imticipated. His invention, as before stated, consisted in,filling the exteriorintersti'ces of the corncob bowl of the pipe with aplastic, self-hardening mass or cement, to make it more durable. A cdat" of shellac, tinmixed With other substances, and laid on with a brush in the manner described by the defendant's witnesses, regllrded as .of the process described in the patent,;:anddid not anticipate that process in any such sElUse as to tep,qerthe void. The practice of varpishingor painta patent could not be sustained which ing articles tn'erely covered, or wassoworiled as to broadly cover, the application of a coatof to an article of manufacture.. Complainant's patent so,",co;lstrubd; therefore, as to cover the apolication of a coat of \r.arnish orpaiiit to the bowl of a corncob pipe; -aild, on the other hand, the fact that corncqb pipes had occasionally been varnished 'with shellac'before the pf,complainant's invention, to .iriake them more presentable, and to protect them from dirt, will not be regarded .' , . founcl in the record, to the effeot ,that ina few instances plaster of Pans hadheen'used, before the date of the pateht, to fill such small cavities ,or cracks as were ocrasionallyfound in the cob, toestablisli"tne pleao£. a,ntidpation'. N6sanlples of pipes! of which plaster ofP1llis had thus been used were it 'is not pretended that plaster was so applied to the whole exterior surface of the bowl, with a view of improving the quality of pipes. .rt'appears'to lJavebeen applied, if at all, solely with a view of remedying defects that were sOl'netimes found in the cob. The Barbed Wire Patent, (Washburn &: Moen Manufg Co. v. Beat 'Em All' :Bat'bedWJireCo:,) 143 U]S.275, 12 Sup. Ct. Haughey v. Meyer, 48 Fed. Rep. 679. . : :The question of most 'importance is whether defendant has infringed. i Ris admitted by the answer that on some occasions prior to the commencement of this. suit the defendant made corncob pipes, and in so doing filled the exterior illterstices oLthe cob, after it was turned and bored, with It mixture ,of finely pulverized corncob and cornstarch. His cOntention is that the mixture in question was pressed into the interstices in a perfectly dry ,state by hand, while the cob was rapidly revolving ana spindle, 'apd, thnt the bowl was subsequently coated with shellac, to hold, theary, mixture in place; but it is conceded that befor6 the mixture of cob dust and starch was thus applied the cob was in
SONS MANUE'a CO. V. LAMPARTER.
every instance saturated with alcohol. The court has reached the conclusion, in view of all the testimony, that when the mixture of cob dust and cornstarch was used as a filler, it was moistened sufficiently, either ofapplying it, to form a thick, pasty before it was applied, in substance, which adhered to the cob, filled the interstices, and subsequently hardened. The court further concludes from the testimony that on some occasions defendant also used as an external filler a mixture of finely pulverized corncob and shellac, which likewise hadth.e property of tlldhering firmly to the cob, hardening, and effectually closIng theppresof the cob. The court ,is forced to regard both of the processes of manufacture.last as an illfringement of complainant's patent. While the complainant has always used plaster of Paris as a filler, yet it is not limited to particular substance. The patentee conceived that by filling the small pores of the cob from the outside with sotUe mixture that would harden, and resist the action of heat, the bowl of a corncob pipe would ,be rendered more durable, witbout losing its capacity to absorb .niootine. , The idea was a good one, though not involving a· high order of invention, and it appears to have led to the manufacture of a cheap corncob pipe, superior to any that had before been made,which immediately came into great demand. That the patentee did not inteIiId :himself toa filler consisting of plaster ofParis is ob'\fious fron);the wo.rding of the specification and claim. Speaking of the bowl ·or ,pipe; he says: "These are made of corncob, in which the interstkesare,filled with plaster of Paris, or other suitable plastic ·mass (0).' ceUleJ;lt;" and ,the claim is for" a new article of manufacture, a amokiAA pipemll.lile'Q£ corncob, in which the interstibes are filled with a plastic; substantially as and for thepurposcs set forth." , !; . ,Tbecoutt.is atleordingly· of the opinion that the claim of the .patent is infringed -:whel1-:a;ny plastic mixture such as.ground corncob and starch,; or :gJ.;ound,rcorncob and shellac, which will set· or harden, is ;ap,plied as It. tiller t<:> the exterior' surface of the bowl of a corncob. pipe, and that it;,mll.kes no difference whether the plastic, self-hardening mass is moistenEjd, and mixed before it is applied to the bowl, or whether it is so and mixed in the act of applying it. The view taken by the leavee the defendant at full liberty to varnish or paint the bowls of oprncob pipes according to the old method. It also leaves the fulllibel'ty to press dry corncob dust into the exterior interstices of the cob, and to apply a coating of varnish to hold the dry dust in place, provided there is no such admixture of the two substances in the process 'of manufacture as to form a plastic, self-hardening mass. A decree and an injunction will be ordered, in accordance with the foregoing viewEl.
SF.R1,. TliE F:alSTAD.
August 15, 1899.)
jI'H8'trlet court; h
ANCHOK....:MU!'tTAL A in the "aallMttGrounds" oftha harbor of PortTownsend,in a oourse usually traveled by vessels el:\tering t!Jflsame. not within legally reserved fairway. A lantern suspended. from her rigging, Which stE!adyligbt;",as. the only wal'ning of her A steamer entennllitlle,harbor at fulhpeed collided w1,th t,he bark,whose presence was not perceiieu ''&y the steamer's lookout, although tbe bark 'was in tbe direct line of the that both ve.s8els. were in fault,-the bark in not turnisbmg proller warning of bel' presence; the steamer either in the inattentionOfiber!!OOkOlit;,ol"in entering tbe harbor at fullspeed.....anditwas therefore a for divllliQn.of damages.
In AdQliraJty. Cross to recover caused by a collision. bQth vessels were in fault, and that the damages be divided. T!wmpsO'f/"EdMn & Hwm.phries, for the Fristad. & the Premier.
; HANFoim, District J uage. The master of tho' Norwegian bark Fris· tad, in'hahalf of her owners, has brought this suit in rem against the Amerioan steamer Premier to recover damages for injuries sustained by the bark in a oollision ofthe ·two vessels; and the owilar of the steamer to her j caused by the has filed a· oross libel, claiming damages for sameoolliBion. The time of the collision wagS' o'clook A. M" FebrulHy 1, 1892,apd"theplaoewas the entrance to Port Townsend harbor, nearly midway hetween Marrowstone Point and Point Hudson., The hark was at'anchor there, and,by for(',e of &. !loodtideand the wind, was held withhel" stern towards Marrowstone P,oint. The steamer in makingtbe run from Seattle to her usual landing place at Port Town,send,whileonher usual oourse from Marrowstone POl'l'1tand running at full speed, about 13mileslper hour, ran against the bark endwise, the stem of the steamer striking the stern of the bark her center and th-e corner on the starboard side. 'l'he bark was notaeen by the officers ·ori the lookout of the steamer until the vessels were too near to each other to avoid the .oollision.Thebark had a lantern hung" from hel'lstarboard it did or did forerigging about 17 or 18 feet above her hull. not give forth· a light visibileto the offioers of the steamer as she applloached, is one of the dontroverted points of the case. The master and officers of the bark were onbollrd of her and asleep. Members of the crew' were assigned to: keepwatoh, one at a tilne, each man to' 'be on duty one hour. The two whose respective watches were· from 2 until 3 and from 3 until 4 o'clock have testified that they did not see or hear the steamer, and were not aware of her approach before she actually struck, and no sound or warning to passing vessels was given, other than the lantern hung in the rigging as aforesaid. The night was dadt, but