J. L. YOTT
V. STANDARD MANUF'G CO.
of insuring against loss by bad debts in ,different kinds of business above the average ascertained loss in .such business by a of guaranty entered into on ruled pages of books, with headings and margins to columns and lines, showing in spaces the names of the insurer and insured. and the terms and conditions of the guaranty. The claims are for the means of securing merchants and others from excessive losses by bad debts, consisting of these sheets having suitable spaces for, and headings and margins showing, the particulars of such contracts. The ruling of sheets and pages of books into columns and spaces, and placing headings and margins to show terms and particulars of business arrangements and transactions, were old and well known within the usual and customary art of persons skilled in stationerv before the time of this alleged invention. The arrangement of such spaces, headings, and margins to show the parties to, and terms and details of, any particular contract, would not be neF to persons skilled in that art, and could not amount to any patentable invention or discovery. Baker v. Selden, 101 U. S. 99. The novelty, if any, must consist in the terms of the contract of inout of the plan of insuring only against excess above demnity the average of losses from bad debts in similar lines of business, and in theembodlment of these terms upon the sheets or pages. But plans of indemnity against losses or parts of losses from. casualty or misfortune by contracts of insurance or indemnity in various forms were in common use before, and not, in any sense, novel. Besides this, the tei'Ills of contracts rest in the agreements of those making them, and coming to such agreements is not a new art. The practice of the plan. as set forth in the specifications of the patent, seems to have been intended for insurers or guarantors, and the utility of it to consist in the proposal of such terms as would be desirable to those wanting indemnity; but the art of making proposals for contracts would not be any more patentable than that of making the contracts themselves. This patent is different in this respect from that in Munson v. Mayor, etc., 18 Blatchf. 237, 3 Fed. Rep. 338; Id., 124 U. S. 601, 8 Sup. Ct. Rep. 622. That was for a contrivance to preserve paid coupons and bonds, and might be patentable as a machine or manufacture; this is for a method of transacting common business, which does not seem to be patentable as an art . These views correspond with those of Blodgett, J., with reference to this same patent in a suit between these parties, as reported in 51 Fed. Rep. 751; but, as those views are said to have been published by some mistake, the subject has been examined here, instead of merely following that case, as would otherwise be usual. Demurrer sustained.
d. L. MOTT mON WORKS v. STANDARD M:ANUF'G CO. (Circuit Oourt of Appeals, Third Circuit. January 27, 1893.)
PATENTS FOR INVENTIONS-COMBINATION-PIUOR ART.
Where a patent has been obtained for a combination after the patentee has availed himself of all the knowledge derivable from a series of existing of a similar character, the claims must be restricwd to the precise form and arrangement of parts described in the
Such a patent is an entirety, and lill the parts of thecomblnatIon must lie U!'ied, in order. tocl)nstItute an infringement
Where the claims 9f an application for a patent are rejected, and thereupon the patentee amends the same by inserting limitations and restrictions, the patent granted thereunder must a strict and narrow construction. 51 Fed. Rep. 81, atfirmed. Sargent v. Safe & Lock Co., 5 Sup. Ct. Rep. 1021, 114 U. S. 63, and Roemer v. Peddie, 10 Sup. Ct. Rep. 98, 132 U. S. 313, followed. LetterS patent No. 170,709, issued December 7, 1875, to William S. Carl', for an iroprovement in waste valves and overflows for baths and basins, claim: "The tube, a, provided with the collar, i, and lock nut, 1, for clamping the slab, m, in combination with the tubular stem, f, of the valve, e, passing through the lock 'nut. 1, and means for sustaining the tube, f, when elevated, snbstantially as set forth." Held, that in view of the prior state of the art, as shOW'l especially by the "patent of July 21, 1874, toJ. T. Foley, and also of the faot that the above claim was filed as an amen(1ment after the rejection of the original claims, the patent must be liil!ited.to the '3pecillc mechanism $lescrib'ed, aud is. not infringed by a (ievlce Wbkh omit!! some' of the elCJ11ents of the patent without supplying their places with equivalents. 51 Fed. Rep. 81, affirmed. Claim 2 of .letters p!ltent No. 353,147, issued February 22, 1887, to John Demarest, for an improvement in waste valves and overflows for baths and b!l!:linS,. is for a. mere aggregation of parts, without oo-operatin;; action, rind not for a patentable cOmbination. . 51 Fed. Rep. 81, affirmed. .
SAME-PRIOR ART-BATH OVERFLOWS.
Appeal from the Circuit Court of the United States for the Western District of Pennsylvania. In Equity. Suit by the J. L.l\lott Iron Works against the Standard Manufacturing Company for infringement of patents. In the circuit court an opinion was rendered upon a motion to compel the tiling of depositions. See 48 Fed; Rep. 345. A hearing having been subsequently had upon the merits, the bill was dismissed. 51 Fed. Rep. 81. Complainant appeals. Affirmed. Francis. Forbes, (William Bakewell, on the brief,) for appellant. Thomas A. Connolly and Joseph B. Connolly, (A. A. Connolly, on the brief,) for appellee. Before DALLAS, Circuit Judge. and BUTLER and WALES, District JUdges. WALES,Pistrict Judge. This is an appeal from a decree of the circuit colirt of the United States for the western district of Pennsylvania, dismissing a bill for infringement of letters patent No. 170,709, granted to William S. Carr December 7, 1875, entitled "Improvement in Waste Valves and Overflows for Baths and Basins," and also of letters patent No. 358,147, granted to John Demarest Febrnary 22, 1887, entitled "Waste Pipe and Valve for Basins." Each one of these patents was for a combination of p1,rls, and not for a primary invention. The first claim of the Carr patent and the second claim of the Demarest patent were alleged to have been infringed. The material portions of the specification in the Carr patent are these:
I. L. 110'1"1' IRON WOBU .,. 8TANDABD 1lANUJ"G 00.
"Over1iows for baths and baB1Ds have been made of a vertleal pipe plUl8l.ng through the woodwork or slab, and connected at Its bottom end with the sewer pipe, and with a branch to the bath or basin, and at the intel'section is a seat for a valve at the lower end of an overflow pipe within the said vertical pipe. In this character of overflow the cap for the vertical pipe haa been connected to the slab" by bolts, and the rod that is used to lift the overtiow pipe and valve 'has passed through this cap. My invention is made for dispensing entirely with the cap, and allowing the upper end of the vertieal tube to be filled by a tube that is lifted with the overflow pipe, and which is capable of being withdrawn whenever it is necessary to take out the valve for cleaning."
is described as follows:
Referring to the accompanying drawings, the prior state of the art
"The vertical pipe, a, of the overflow, is connected near the bottom by a pipe, b, to the bottom of the bath or basin, and by a pipe, c, to the sewer or e8Cape pipe. The valve seat, d, is below the inlet pipe, b; and when the valve, e, is upon its seat, water can accumulate in the basin or bath until it flows over the edge, 2, of the hollow stem of said valve, e; but when the valve is raised from its seat the contents of such bath or basin will flow of! by the pipe, Co The parts thus far described have been known in U88hel'etofore,"
Then follows this description of the patented invention:
"My improvement relates to a flange, 1. !1Pplied 'around the upper end' of the cylinder, a, and a lock nut,!, at the upper end thereof, whereby the table or slab, m, is clamped between such lock nut and the flange, L · · · The tubular stem, f, of the valve, e, Is continued through the lock nut, and of a size to flt the interior thereof loosely; and in this enlarged portion, n, of such stem, there Is an L-shaped slot, as seen in Fig. 2, so that a screw or pin, 0, PR.!lsing through the lock nut, may enter this slot, in order that the valve may be held up, after it has bern raised, by partially turning the tubular stem, for the pin to enter the horizontal portion of that slot. · · · I do not claim an overflow tube, valve, and tubular stem, nor the device shown in the patent of J. T. Foley, JUly 21, 1874. I claim as my invention, (1) the tube, a, provided with the collar, i, and lock nut, 1, for clamping the slab, m, in combination with the tubular stem, f, of the valve, e, passing through the lock nut, 1, and means for sustalnlng the tUbe, f, when clevated, substantially as Bet forth."
lIud c, and removable tubular stem, f, and valve, e, SUbstantially as set forth. (2) The tubular stem, n, passing through the lock nut, 1, and provided with means for sustainlng said stem when elevated in combination with the valve, e, stem, f, and table, a, substantially as set forth."
Carr's application, as originally filed, contained three claims, the first two of which read as follows: . "(1) The lock nut,!, and collar, 1. in combinati(>ll with the tube, a, pipes, b
These claims were rejected by the patent office November 12, 1875, on the patent of J. T. Foley, July 21, 1874, and because the lock nut, 1, and collar, 1, have no combination with the other elements of the invention, and, furthermore, that this element of fastening is common. Thereupon Carr amended and limited his claims by withdrawing those first filed, and substituting the first claim that is now found in his patent; and, having adopted this course, the claim in dispute must receive a strict and narrow construction. This principle is well stated in Roemer v. Peddie, 132 U. S. 313, 10 Sup. Ct. Rep. 98, and in Sa,rgent v. Safe & Lock Co., 114 U. S. 63, 5 Sup. Ct. Rep. 1021. In the former case the court said:
:,!I'Wlmn'Ilo11atentee,on the·rejectlon of· his application, inSerts"ifi hi1vgpecificatlGb,lli' OODs<:lqueneEt;'Umttationsand; restrictions, for the pntpose &f obtaining hilt!patent, be Cliunot, after 'he has obtained it, claimthatlt sMllbe construed as it would"h8lve been construoo' if such limitations and'restrictions were not oontain:ed m: 'it." ,: , . . .. , ,
On ane:x;amination 'of ,the Foley patent a,lld reissue, it will be seeti'thlitalm0st every in the Carr combination has been his states:
"My invention relates to an improvement that is made for allowmg the valve and overflow to be easily removed. For this purpose the valve and its tubular stem is continued up thrQugn,the'marble or wooden slab or table contiguous to the basin or bath, and provided with a remoYable Clip, through :which the 8tem to the handle I1asses." ,, ,
Then follows a ·description of the Foley improvement, illustrated by ,drawing'S,' from it appears that theonIy substantial difference improvements is that the former has the removable cap, ,and ,the latter has the collar, i, and the lock nut, 1. in theiFoley patent is for a standpipe passing through the slab, and receiving at its upper end a removable cap, valve, and, J;D.eans for, suspendin 4lg the valve from the In explanation of.the <lra,wing the, that passmg through the cap IS a rod with a ha:t;ldle,at. the upper end,and at the lower end i,s con· neoted by a; ;bridge or bail with the tubular stem that is within the vertical, :tUbe.'''Tlrls .rbdis, sO. 'made' that when. it is raised, and partially the tUbular stem and valve. "The defelldallt'1!! . complained of· as infringing both the Carl' and ,the Demarest patents, bears a closer resemblance to the Foley than 'it does to .either .of the others. It is described, follows: . ,
a ring or nut, 0, screwed upon the outside of said fiange; an overflow tUbe, D, provided with a handle portion or stem, E, and having upon its lower end a v:aJ,'ve... ,'l'he Inwarolyprojecting hbrizolltalportion of the cap is notched at a, l\Ild the handle portion of the overflow pipe Is provided with two lugs, d and e, which, when the overflow pipe. is turned, respectively coincide with this noteb, andaliow'the·overflow "()ipe to be raised. ,'When the overflow pipe is so ralsed, it maybe supported by one of the lugs resting upon the top of the enp B, the· overflow· pipe being turned after the lug has passed through the notch,a. The ordinary or Usual operation of raismg the overflow pipe to allow the water to escape' Ilnder the valve is simply to lift· it sufficiently to raise tbe uppermost lug out of the notch, a, lind then turn the overflow pipe. While the o'Verflow pipe is lDthis position, it is prevented from being suddenlY or Vloj.ent]y raJsed too l1igh, Or withdrawn from the standpipe, by the lower lug on JhElPll,Udle ot, the overflow coming m contact with the underside of the clip;B. When it is desired to withdraw the overfiow pipe entirel)' from the standpipe, it is first turned Ulltil the uppermost lug can be drawn tbroughthe notch, and attilr such withdrawal the tUbe is again. turned unt1l. the lowermost lug can ·be withcll'awn, .after which the qverll.ow rIpe ,may .be entirelyllfted, put."
1'1pe, ,and l1aiVmg'lIJ;vertloal fiange"b, screw threaded mternally and exteriorly;
stanl1pipej .&,'R'cap, B,'screwing upon the upper end of the said stand·
By compari,ng thesed,iff¢retit, struCtures, which have just been described, ,one with another,Jt!wiU benoticed. that the defendant's waste does not make use of the &>lIai-fi,or of the lock nut, 1, or of the Ii-shaped slot, called for in'the' patent. Neither does it substi-
:1. L. MOTT IRON WORKS
an equivalent for any of them. In the defendant's wast.e the tubular stem can be removed without disturbing any' of the other parts, while in the Carr patent the screw or pin, 0, must be taken out before the tubular stem can be withdrawn. There is no novelty in Carr's mode of clamping the slab, m, and, if there was, a glance at the defendant's waste will discover that the latter employs wholly a different combination for attaching the standpipe to the slab of the bath or basin. If Carr made any improvement over the Foley device, the advance was but a slight one. It is sufficient to say, without discussing further the merit.8 of Carr's invention, that it has not been infringed by the defendant. The claim of the patent alleged to be infringed reads as follows:
"(2) The combination with the horizontal waste pipe, 0, and vertical standpipe, E, of the socket, G, screwed upon the exterior of the standpipe, E, and having a flange resting upon the slab, and an inwardly projecting pin, 17, the overflow pipe and valve within the standpipe, the tubular cap, P, screwed upon the exterior of the overflow pipe, and slotted for the reception of the pin, 17, and the lock nut, 16, at the lower end of the tubular cap, P, BUbstantially as and for the purposes set forth."
This claim containS three separate and distinct groups of deviCes, each group performing different functions from either of the others, and all of them do not act conjointly. The first group contains the socket, G, screwing upon the standpipe, E, which covers the particular means for attaching parts together. The sooond group, consisting of the pin, 17, in the socket, G, and of the slot in the cap, P, for sustaining the overflow tube when elevated, and for the withdrawal of the overflow pipe from the standpipe. In the third group the tubular cap, P, is screwed upon the overflow tube, and is soomed thereto by the lock nut, 16. There is no co-operative action of these distinct claims which produces a unitary result. Each one acts separately and i:adependently of the other. In Reckendor· fer v. Faber, 92 U. S. 347, a patentable combination is defined as one which must produce a different force, effect, or result in tl;l.e combined forces or processes from that given by their separate parts. There must be a different result produced by their union; otherwise, it is only an aggregation of separate elements. This definition has been approved in Pickering v. McCullough, 104 U. S. 310, and in Hendy v. Iron Works, 127 U. S. 370, 8 Sup. Ct. Rep. 1275. It has been repeatedly held that a mere aggregation of old elements in a new relation is not the subject. of a patent. Hailes v. Van Wormer, 20 Wall. 353; Union Edge Setter Co. v. Keith, 139 U. S. 539, 11 Sup. Ct. Rep. 621; Royer v. Roth., 132 U. S. 201, 10 Sup. Ct. Rep. 58. It is obvious that the second claim of does not come within this definition. But, as was pointed out by the circuit court, if a different con· struction were to be given to this drawing, no infringement has been shown; for the defendant does not employ the inwardly projecting pin, 17, .and the slots in the tubular cap, P, but means substantially different. The defendant's exhibits present a long catalogue of waste devices f()r baths and basins. Carr and Demarest availed themselves of,itlie knowledge of what had already been accomplished in this
special line when making the combinations respectively claiUled by them. When 3'talid patent hasbeetL obtained under such.conditions, the claims oN;hepatentee must be restricted to the precise form and arrangement of parts described in the specification. Such a patent is an entirety; and it is a familiar principle that all the parts of the combinations must be used by the defendant in order to constitute an infringement. Howe v. Neemes,18 Fed. Rep. 40; Matteson v. Caine, 17 525 ; Bragg v. Fitch, 121 U. S. 478, 7 Sup. Ct. Rep. 978; Railway Co. v. Sayles, 97 U. S. 554. After a fUll consideration of the whole case, we have found no reason to doubt the correctness of the conClusions arrived at by the circuit court, and its decree is therefore affirmed.
GREENWOOD etal. v. TOWN OF WESTPORT. ,(District Court,. D. Connecticut. January 23, 1800.)
Nos. 915, 916MARITUIE TORT NEGLIGENT MANAGEMENT OF "
ADlURAI\TY JURISDICTION DRAWBRIDGE.
A libel alleged that'll steam ve.,selapproaching a drawbridge over public navigable waters of the United States gave timely Ilignals that she desired to. pass through the same, but that no attention was paid to her signals, and that on reaching the draw she was to wait about an hour, and was then caught by the ebb tide, struck on the bottom, and sank; that said bridge was USed as a public highway, and 'was in the care, control,andmar.agement of defendant town. Held, that the cause of action alleged was a maritime tort, cognizable in admiralty. I .
BBIDGES-MANAGEMENT BY TOWN-NEGLIGENCE.
A town, which has undertaken to manage and control a drawbridge over navigable waters is liable for negligence or misfeasance therein, although it might not have been originally charged with the duty of. opening said draw.
In Admiralty. Libel .1>y Sylvester Greenwood and others against the town of Westport to recover for damages to the steam barge Hebe, alleged to have been caused by the negligence of the said town in the management of a certain drawbridge. Heard on exceptions to the jurisdiction. Overruled. Samuel Park. for libelants. Curt.is Thompson. for defendant.
TOWNSEND, District Judge. The libel alleges that the steam barge Hebe was proceeding up Westport river laden with coal, about noon on October 26th, and, when about three quarters of a mile from a certain drawbridge in the town of "iestport, she commenced to give signals from her steam whistle that she was approaching and desired to pass through said draw, and repeated said signals until she had nearly reached said bridge, but that no attention was to Said signals, and that, after being compelled to wait about an hour, the Hebe was caught by the ebb tide, struck the bottom, and sank. The libel further alleges that said drawbridge "is a part of a public highway crossing public navigable waters of the United States; and that