CALIFORNIA ARTIFICIAL STONE PAV.OO.
combination or otherwise, is sufficient to put in operation the power vested in congress by the constitution to promote the progress of sci· ence and useful arts by securing to inventors exclusive rigbts. We refer to the topic of the utility of complainant's chair only as it bears on the point of invention. One of the defendants testified that a chair made in accordance with the patent in suit would not be a practical commercial article; and it appears by the evidence of the plaintiff that, although at the time he testified he had owned this patent for seven years, he never had put on the market a chair constructed to conform to it. To fill an order he had commenced some 15 dozen, which were not completed at the date of his deposition. This is not an instance where a valuable invention lies dormant for want of meaDEl of developingitj because the complainant also testified that he manufaotures nothing but patent chairs of various kinds, and sells these to the extent of 70,000, more or less, annually. A novelty which remains unused so many years in the hands of an extensive manufacturel', exclusively engaged in the special trade to which it relates, must be presumed to involve, at the best, a very low degree of that ful invention which the oatent code of the United States requires. Indeed, the entire field shown by the exhibits in this case seems a dreary one, nowhere enlivened by a single exhi !lition of the genius of invention, or of the "happy thought" which, under the patent laws, frequently answers in the place of the former. We think the sum of all that can be said is that the complainant's novelty shows somewhat more mechanical skill, experience, and apHtude than those which preceded it, but not enough to rise above the condi. tions described in HoUister v. Manufacturing 0'0., 113 U. S. 59, 73»5 Sup. Ct. Rep. 717. Bill dismissed, with costs for the defendants.
CALIFORNIA ARTIFICIAl, STONE PAY.
(Circuit Oourt, N. D. OaU!ornia. August 29, 1892.)
Reissued letters patent No. 4,364, granted May 2,1871. to John Schillinger for an improvement in concrete pavements. consisting 1n dividing the pavement into blocks by the interposition of strips of tarred paper or equivalent material, so that each block may be removed and repaired separately. is infringed by a sidewalk laid in two layers, the bottom one of coarse cement, separated into blocks by scant ling joints, and the top one of fine cement, divided while plastic by a tl'oWll1 or othe.· cutting instrument, on lines coincident with the scantling joints, so as to induce the cracking to follow such joints, rather than the body of the block. but V. SchUltinger, 9 Sup. Ct. Rep. 584, 130 U. S. 456, followed. Paving 00. v. SchaZicke. 7 Sup. Ct. Rep. 391. 119 U. S. 401, distinguished.
,"OB INVENTIONS-INPRINGI!IMI!INTS-CONCBETB PAVEMENTS.
in th6'manner i!Jlown and described. (2) The arrangement of tar pa(Jer, or its adjoining blocks of concrete, substantially as and for the purpose set forth."
At Lai\1P.:,.: Actioft:by,the California Artificial Stone Company against Mary A. StlMtrand others for infringement of reissuedle.tters patent No. 4,364,i.granted May 2, 1871,: to John Schillinger;·on the surrender of originaLpatent No. 105,599, granted to him July 19, 1870, for an improvemiM\tiuooncrete pavements. Judgment for plaintiff. The claims of the patEint are as follows: "(I). A concrete pavement laid in detached blocks or sentions, substantially
of th13 invention is stated to be that this arrangement the blocks to heave separately from. the effects of the frost, or to be raiseq., QqnQved separatElly, whenever occasion may arise, without injurytQ tJ;1e a,djAcent blocks." and Wheaton. Kalloch &: Kierce, for plaintiff. Par:ker&:&Us, for defendants. .
Judgel (orally.) I am constrained to render judgment forplaintitr. The action is for th13infringement of the Schillinger patent forcartificial stone pavements. It has been interpreted so often to be decided or announced about it, and it has been extended and indulged very far. In Hurlbutv. Schillinger, 130 U. Sup. Ct. Rep. 584, ,the supreme conrtsay:
"The inVeiitionconsists in· dividing the pavement Into' 'blocks, so that one block can be:rerllovedand repaired witholltinjury to the rest of the pavement; the;dil'Jslon being effected by either a permanent or temporary interposition of something bttween the blocks."
A pavement laid in two layers, a bottom· one of coarsecemp.nt and a top one of fine cement, and the division of the upper one, while plastic. by a trowel or other cutting instrument, on a line coincident with the line between the sections iIi 'the lower layer, so as control the cracking, and induce it to follow the joints of the divisions, rather than the body ;the substantial,result of Schillinger's invenof the blRclf,; tion in sU"os'taddally the way devised by him, and is within the patent as it stands the disclaimer." 130 U. S. 465.,9 Sup. Ct. Rep. 584. The defendant's pavement was so laid. The marking it on the sections formed by the scantling joints, so called, produces this result, hence must be held an infringement. The markings into blocks within such sections do not do this, hen.ce are no infringement. It is urged that in Paving Co. v. Schalicke, 119 U. S. 401, 7 Sup. Ct. Rep. 391,. it was held thatwarking the upper course with a cutting instrument to thedepth ofahout one sixteenth ofan inch, "for ornamental purposes, was n6t an infringement, and it is further urged that the testimony in the case at bar sh()ws the marking only to have been done for ornamentlll purposes. But in paving Co. v. Schaliclce, the court say that it was not shown that the marking in that case produced any such division in blocks as the patent speaks of, even in degree:
CALIFORNIA :ARTIFICIAl, STONE PAY. CO. V. STARR.
"There were no blocks produced, and of course t1H're was nothing interbetween the blocks. . * * * 'fhe <;mly for ornamentation, and produced no free points betw!'en the bloeks, and the e\'idence as to the condition of the (!f·f"ndants' pavellJl'nts after they were laid shows that they did not have the characteristic features above mentioned as belonging to the patented pavement." In the case at bar the defendants' pavements have the characteristic features belonging to the patented pavement. Its object was attained. To clear up what was doubtful in the oral testimony, I inspected the pavement. Thecnt in the upper layer was directly over the line of the two sections formed by the scantling joints, and the cracking followed the cnt, and not the body of the section. A section WIlS selected by connsel for plaintiff and defendants, to see if one .section could be removed withont injury to the other; that is, would come up separately. The trial was successful. The sections I'Rsily separated on the line of the crack between them. All the objects of the patent, as interpreted by the decisions, 8upra, were shown to be attained. It is further claimed by defendants that marking on the line of the scantling joints is not marking into blocks, within the meaning of the patent. In Paving Co. v. Schalicke, supra, the defendants laid their pavement in strips from the curb of the sidewalk inward to the fenr.e in one mass, and then marked the strip crosswise with a blunt marker to the depth of about onesixteenth of an inch, and it was held no infringement. It does not appear from the opinion how wide the "strips" were, but in Hurlbut v. Schillinger the sections were 7 or 8 feet by 4 feet. These were held to be blocks, within the meaning of the patent. In the case at bar the sections are 6 by 10, some 6 by 11 feet; but from the appearance of the pavement some were srnaller,-maybe 3 by 6. These sections, by virtue of the authority of Hurlbut v. Schillinger, must therefore be held to be within the definitions of the. patent. It may also be observed that the defendant Perine could have marked his pavement for ornamental purposes, and have avoided coincidence with the line between the sections. He did not avoid this coincidence, but selected it, and attained thereby the objects of Lhe patent, and he must be held to have infringed it. The defimdants laid feet of pavement, and it is agreed that the charge therefor shall be 4 cents per foot, amounting to $ - - - . Let judgment be entered accordingly.
nDERAL REPORTER, vol.
EDISON EUOOTRIC'LIGHT Co.
UNITED STA'rES ELECTRIC LIGHTING CO.
(Circuit Court of Appeals, Second Circuit. October 4, 1892.)
PATENTS FOR INVENTIONS-INVENTION-INCANDESCENT ELECTRIC LAMPS.
The second claim of letters patent No..228,898, issued to 'l'homas A. Edison, January 27, 1880, for an incandescent electric lamp, consisting of a combination of carbon filaments with 'a receiver made entirely of glass, from which the air is ex· hausted, and conductors passing through the glass, is valid, since, in view of the ,prior state of the art, it required invention to substitute a carbon filament for the platinum wire of bis prior French patent, (No. 180,910, May 28,1879,) and so com· bine it with a vacuum vessel as to pl'event the disintegration of the carbon by "air washing.»
" The word "filament,» used as descriptive:of the size of the burner, is sufficiently ,definite, in view of illustrlltions in the specification, and it is not necesaary that its maximum and minimum dimensions should be specified, especially since defend· ant's burners indisputably lie wholly on one side of the dividing line between rods and filaments.
The fact that the pateritdid not ,detail the method always used by the patentee, '. t 01 passmg a current through the filament during the process of exhausting- the bulb, does not render the patent void for want of a sufficient description to enable a person skilled in the art to construct a Buccessfullamp; for the patent called for a nearly perfect vacuum,and. tuis process of obtaining it had been described in Edison's French platinum patent, and the necessity for it, in order to obtain a perfect vacuum, had been pointed out by Sawyer and Man, and would therefore naturaUybe resorted to by one familiar with-these publications. I. SAME-RESULTS NOT FULLY UNDERSTOOD. . . "'rhe fact that this process produces a carbonization of the filament, and is now ·used as partof the process of carbonization, whereas the patent merely directs that the filament be "properl:!," Clll1bonized, '.'does not show a suppression of a necessary ·element of the invention, or a want of sufficient description; for, it being apparent that one skilled in the art would use this method, it is immaterial that its full bene;ficial effect was not understood at the time of the application. 5. SAlIIE-LIMITA.TION BY FOREIGN l:'ATENT. A prior Canadian patent,' issued for 5 years, and extended for the further period of 10 years, should be regarded as haVing a'continuous term for tue entire period, and as not limiting the United States patent to any shorter term. Refrigerat'ing Co. v. Hammond, 9 Sup. at. Rep. 225, 129 U; S. 164, followed. 6. SAME. The Canadian patent a.ot, 'which provides that "when a foreign patent exists, the Canadian patent shall expire at the earliest date at which any foreign patent for the same invention expires, » refers only to foreign, patents which exist before the issue of the relevant patent.
7. SAME-LIMITATION ON FACE oli' PATENT.
The failure to limit the patent 'on its face to a. sborter term than 17 years, so as to expire at the aame time with the prior foreign patent baving-the .IIhortest term, does not affect its validity, RefriueraUng Co. v. Hammond, 9 Sup. Ct. Rep. 225, 129 U. S. 164, follmved. . . , .
SAME-CERTIFICATE OF CORRECTION BY COMMISSIONER.
The c.ommissioner of patents has no jurisdiction to alter a patent by a certificate of correction. Such a certificate is wholly void, and the patentee's request to have the same made cannot be considered as a surrender of the original patent. . Notwithstanding the merger of the complainant with another company into a new corporation, the law of the state of New York. providing that pending suits shall not be deemed to have been abated or discontinued by reason of any such oonsolidation, is effective to prevent such abatement in a federal court.
SAME-ABATEMENT BY DISSOLUTION OF COMPLAINANT·
Appeal from the Circuit Court of the United States for the Southerr.. District of New York. In Equity. Bill by the Edison Electric Light Company against the United States Electric Lighting Company. The suit was originally