, A creditor's claim, duly proved according to the provisions of the bankrupt act, is, pr'ima facie, good. The burden of showing that the claim is founded in mistake or fraud, lies upon the aS8ignee or the creditor attacking the proof. r think he has failed in this respect, in the present instance, except in the amount of the Chase & Locke note, as before stated. Under the circumstances, the proper order to be entered is that the register's decision be reversed; that the proof of claim be expunged; and that the creditor have leave to put in new proof, after deducting the amount of the Chase & Locke note, and that no costs be allowed to either party
'V. HAISH. 'V. SAME.
& MOEN MANUF'G Co. and another
(Circuit Court, N. D. Illinois.
February 21, 1881,)
WASHBURN &lrIOEN MANUll"a
HE ISSUE No. 6,902-PATENT No. 74,369-VALIDITY.
Re-issued letters patent No. 6,902, granted Michael Kellr,Febmary 8, 1876, which claims two methods of keeping the barbs or thorns of a wire fence rigid upon the wire, viz.: (1) By lateral compression after the barbs are strung upon :the wire ; and (2) by laying another wire of the same or, different size along-side the thorn wire and twisting the twotogether,-held fJalid, though the first only was claimed in, the original patent, No. 74,369, granted Febmary 11,1868, to Michael Kelly, the latter method, however, being shown in its drawings.
5. BAME-DIAMOND-SHAPED BARBS-KELLY'S DEVICE.
Kelly's invention consists of diamond-shaped barbs, or thorns cut out of metal, and strung on fence wire at a certain distance from each other, and kept rigid upon the wire by lateral compression, or by twisting a single wire with one containing the barbs or thorns upon 6. HE-IssUE No. BARBS-GLIDDEN'S DEVICE. The invention secured by re-issued letters patent No. 6,913, granted Febmary 8, 1876, to Joseph ,F. Glidden, in suit, consists of a fence wire having a,barb formed of a short piece of pointed wire secured in place upon the wire by coiling between its ends, forming two project.ing points. '
Motion for Rehearing. Coburn <t Thatcher, f.or complamant. Manday, Evarts <t Adcock, for, defendant. , Before, DRUMMOND and BLODGETT, JJ. DRUMMOND, C. J. This is a. motion fora. rehearing forthe alleged real$On that the threere.issued patents considered in the former opinion·-the Hunt, No. 6,976, Kelly, No. 6,902, and Glidden, No. 6,913-are invalid as not being for the saQl6 inventions as their respective origina.ls. In order to give a proper construction to these patents and their re-issues we must consider the state of the art, a.nd the object which the inventors proposed to accomplish. Wires had been used for fencing for many years before the date of these patents, and they were, made singie or double, of single wires or of single wires twisted together. These did not fully answer the purpose, as it was not difficult for cattle to push through them. These inventors desired to pla.ce Borne· thing on the wires which would deter stock from attempting to break through, and that was a.ccomplished by arming them with barbs or sharp points which would prick the cat·
--1 FED. RElP. 900.
, FEDERAL UPOBTE-B.
tIe. It would seem to follow from this statement of the case, and in view of the further fact that it hr,d been common to arm various fences other than wire with points or prickers, that it was not competent for any inventor to do more than to claim his own special method of forming and affixing the barb which he had devised. Applying these principles to the Runt original and re-issued patent, we can give to them a proper construction. Hunt invented a particular kind of spur-wheel, which he strung upon the wires of a fence, a description of which he gives in his originalspecifications. They were s'mall-spur wheels, the spnrs being sharpened; the wheels, were provided with openings at their centers for the, wire .to pass through. Comparing the text -of the origin:al and re-issue together, it will be seen that the original Hunt'patent was for a "new and usefuliinprovement in fences. " The same is stated in the re-issue. The material differences between the specifications of the original and re-issue seem to he these: In the reissue it is said, referring to the drawing: COD represents single spurs secured toth:e wires." That is not in the original specifications. In the original specifications it is said: !IThespuis fit 'the wire loosely, so as to revolve easily upon it." .\ In the re.issue "the spur-wheels may fit the wire loosely, so as to revolve easily upon it." In the original it says: 'fTheapurs may be kept in their places, or at suitable distances apart, by means of flanges." In the le-issue referis made at the end of the word "flanges" to a letter A, contaiIl'ed in the drawings. In the original the claim is: "Providing the wires of a wire fence with a series of spur-wheels, substantially as and .for the purposes set forth." In the reo issue the claim is: "A fence wire provided with spurs for the purpose specified." While it is true that in the re-issue it is said D represents single spurs secured to the wire, and they are contained in the drawings of the re-issue, yet the drawings of the original patent contain single spurs, represented on the wire. The same is in the re-issue, although no reference is made to them in the specifications. Considering the drawings, the specifications, and the
WASHBURN & MOENMANUF'GOO. V. HAISH.
elaims of Runt's original and re-issne patent, COI1·' strne the claim in the re-issue IIiS inclnding anything more than the special spur or barb which he: had described iIi the first instance? I think nat; althongh the claims are soniewhat differently worded in: the two cases,-':"'in the dne instance, " providing the wires of a wire fence with a series of spur wheels;" and in the other, "a fence wire provided with spurs for the purpose specified." We think we shaH not constrne this last claim independent of tht' description of' the spurs set forth in the specifications, and they are substantially the same as described in the original patent. In comparing the daim of the re-iasue'with, that of the original, we assume they mean substantially the same thing, and that the claim in the re-issue camiotfairly be enlarged. to include elvery kind of barb that may ,be attached to afen'ce wire,'but'that " the fence wire "ptovidM with spurs" means the 'kind "of fence wire and of sputs that 'he had in hi8speciftand drawings. The claim in the re;.i'S8lle 6ught;in this Case, to lie construed wfth'reference to'the limitation of the itl"en:tion in the original patent. ":" " The "difference of the ,phra.'seology In' the original : and: re-issue"d specificationl!l, where in the: tormer it 'says, H tM spurs fit the wire loosely, sb'as to revolve easilyupotl 'it; .. · .. the spurs may be kept in their places and at suitable distances apart by means of flaIiges or otherwise;" and in the latter, ,/ the spur-wheels may fit the wire loosely" so aHo Tevolve easily upon it, or they may be ke"pt in their places and at suitable distances apart by means of flanges,A, or Qtherwise,"-cannot change the nature of theiIivention described. I do not understand that this language in the reissue necessarily implies that the spur-wheels are fastened to the wire, so as to prevent them from revolving, nor am I prepared to admit, if that were the fact, it would change the essential character of the device. The object of the Kelly patent was also to describe and elaim a particular mode of constJ:ucting the barb, and attaching it to the wire of the fence. And the drawings of the original patent clearly indicate that this was done upon a singl6
or, ,a dou1;}lewire. patenteeinte.nded that these barbs should .be stationarYl1ponthe wire., need be said of anything described or.olaimed in the patent exoept what refers ito the wire. and bar.b, partqf the fence. The peeuliarity of the barbs of this· fenoe is that they are cut in a diamond .form from a plate, or otheWise, and eac.h provided wit4 :8.. 401e, so as .to be strung on the wire at properdistanees apart, and then they are compressed laterally upon the wire, by a blow of a haIJ:1.meror .otherwise, 80 as to fasten them uP9n the wire. The following are the material differenc,es between the original and the re-issueof the Kelly patent: In speaking of figure 1 0f the ,drawing the re-il/sue refers to the use of wiJ:es,.andof figure 2 as a double wire. The drawings in both 're-issue and original are the same, and these words, single and double wire, are additiOn!'! in the specifications of the re"isBue. In the re-issue, iJ1. :l!peaking of the desirableness of increasing the strength of the wire, the word "can," used in the original, is left out in the re-issue; and of saying, "I can lay another wire," the re-issue says, "I lay another wire." In !'Peaking of the representation in figure 2, in the it says, "it looks the thorn;" the words being, "it tends to insure a regularity in in the the distribution of the points in many different directions;" and in ·the re-il!sue, "it locks the thorn, and also tends to insure a regularity in the distribution of the points in many different' directiops." In the original there are three claims. The third claim is identical in the origina.l and in the ra-issue. In the original the first andsecon4 claims read,:
"Fi'r8t. Thetho,ns, E, produced by otherwu.e in the form suband adapted to be secured in place upon a wire stantially as by compression, latterly, both of the thorn and wire, as and for the p'Urposes herein set forth. "Second. The thorns, E, and wi,re, D, combined in the manner represeIl,ted, and adapted for use in a fence as herein set forth."
wlre,·n;' imd a
ra-issue the first, second, and fourth claims read: ·'j',mr8t. 1 claim the combInation ,substantially as described of the fence
series :of thorns, E, rigidly fixed thereto, for the purpose hel'ein, set forth.
"Serond. I claim a wire, D, and aseries coin:bination supporting posts, 0, substantially as and for the purposes set forth.'; . .. ,,' ..' :' , ,:::., ' "Fourth. the combination substantially as described of two wires, D, D, twisted together, and a series of thl>rns;'E,strung upohone of said wires and held in position by them,as"andfot the purpose set fort,h, "
With this statement of the differences between the original and the re-issue, it cannot be said tha,t there is anything claimed in the first three claims of the re.issue essentially fourth claim in the different from those in the original. re-issue is not a claim in the original, but 'the. two ferred to in that claim as twisted with a of', thorns or barbs attached to one of the wires, is cle'arly set forth in the drawing of the original patent; and, if that stituted a part of his invention, and i(it was not claimed through mistake or inadvertence, I kIlow of no' good reason' why the claim in the re-issue should not be corrected by the drawings of the original patent. 'The words in the tions of the re-issue that "it locks the thorn/' are only 'a . descript,ion of the effect produced by this mode of his' ' peculiar barb on one of the wires 'twisted together. Glidden, in, his original patent, described the' uS60f two' wires 'coming together at various points, at, which spu'rs. are coiled around them, and which are spread apart between the coils so as ,to prevent the latter from ,moving' longitudinally on' the wires. Equidistant,betwe'en ltb,e posts is a slotted tube containing coiled spring, the, object'ot'which keep the wires at a pr0i>er tension as or cold.' This original patent was re-issued, in 'divisions. Division A describes and claims a barb, consisting of lJ. short at both. ends, .coiled around and compressed abC?ut ,one or Dlore strands of fence The number of' coils is not material. He says by this method he can put already placed in the feilee, or before}hey' there phtced. The claim in this re-issue is""':' " ,
wire,a barb for!p.ed'of piece or , its pointed wil'e, secured in ,place upon the feneew,lre by ends, forming two,projecting points, substantiallyas,specified."
..'lri combination with a
· nD;EBAL .BEPORTJilP
:'In the original he says:
"I do not claim to have originated the devices known as· spurs of prongs on the wires, they hl;Lving been used before, and contine myself. to the means for holding the spurs at proper intervals upon. the wires, and to for obtaining uniform tension of the wires as claimed."
And the claim in the original is"The combination of two wires, B, C, slotted tube, G, coiled spring, I, and post, K, for ke'eping the'wires at a proper tension in various temperatures, 88 deSCribed and shown."
In the original patent he does not describe in the specificathe pecuiiar manner in which the barb is formed and coiled around the two wires, further than by a reference to his the drawings. In division A of the re-issue he barb as consisting of a short wire, pointed at each end, and wrapped or coiled arourld the fence or wires at proper intervals; leaving proj'ecting ends as shown. These barbs, which he claims in the re-issue as his own special mode of construction and attachment, 'are described in' the drawings of the original, the only difference being that in the re-issue C, at figure 3, sets forth a barb with one more twist than in the original; but obviously the mode of constructing and attaching the barbs to the wire are substantially the same. We have assumed that it is entirely competent for a patentee to correct in a re-issue by the drawings any mistake made in the original, and we think, therefore, that if Glidden was the inventor of. the peculiar mode 'of constructing and attaching the barb which is described in the drawing of the original, and in division A of the re-issue, he had the right to it in his re-issue and to claim it. We admit there is not a very great distinction between this mode of constructing and attaching the barbs and others which existed before. If this were an entirely new and original question, without the action so long continued of the patent-office-without such a business havin.g grown up in relation to it as now exists,-for it must not. be forgotten that the inventors of these barbs have created a new branch of industry,bavebeen the instruments by which barhed wire fencing has come into such general use,-we
WASHBURN &HOENHANUp'G'ao. tI. HAlSH.
might be inclined to take a different view of this claim of Glidden for this mode of constructing and attaching barbs. But it will be recollected that the view which we have taken of these inventions, connected with the wire fence, is confined to the mode of constructing and attaching the barbs; and if a person who has invented and describes a particular form of barb, and a particular mode of attaching it to the wire, is entitled to a patent, we do not know why Glidden cannot be to this form of barb and mode of attachment, for the same reason that Kelly and Hunt were entitled to a patent. We cannot overlook what has been done. Theimmense number of patents that have been granted for peculiar modes of constructing barbs and attaching them to wire fences, considering the success which has followed this barb of Glidden's,-aIthough it may be, as was stated in the former opinion, near "the border line" between mechanical skill and invention,-yet we feel inclined to sustain it. We have carefully examined the case cited, and decided at the present term by the supreme court of the United StatesThe Swain Turbine Manuf'g 00. v. La,dd. The principle frequently decided by that court, that the re-issue m:nst be for the same invention as that shown in the original, is emphasized with special force in that case; but we do not fiud it lays down any new rule, and especially comparing it with one decided at the same term-Ball v. Langles, 18 O. G. 1405. In relation to the power of the commissioner of patents to determine whether there has been an accident, mistake, or inadvertence in the original patent, we are not disposed to change the rulings we have made upon the various claims and re-issues in this case. We hold, therefore, as we construe the originals and reissues, there, is nothing contained in the claims of the re-issues which is not set forth in the specifications or drawings of the original patents. So far as there may be anything in the original opinion which may be construed to mean or imply that Hunt patented and had a claim to any and every form of barb upon a fence wire, this opinion is intended as a modification of the same. v.7,no.11-58
a.nd others v.
(Oircuit Court, E. D. Ne'tD York. March 17, 1881.)
No. 47,135-RE-IBBUES No. 8,106 4ND 8,123-PoCKET-BoOK ("'LASPB-MOTION,FOR PRELIMINARY INJUNCTION-VALIDITY. Upon a motion for a preliminary injunction, letters patent No. 47,135, granted April 4, 1865, to Charles Beaver; re-issued letters patent No. 8,106, granted February 26,1878, to Zinn and Messer; and re-issued letters patent No. 8,128, granted March 12, 1878, to Zinn and Messer,--all for improvements in, pocket-book clasps,I Md MUd. 2. PATENT-COHBINATION-MACHINE-NEW USE-!NFRJlIlGEHENT. A patent may secure a combination or machine without regard to the purposes for which it is intended, and will be infringed by the employment of such device for a purpose not mentioned in the patent. Thus a patent for an improved clothes-fastening attachment or clasp, will be infringed by a. device substantially llimilar to it, used on a pocket-book, though the use of such fastener upon pocket·books was not mentioned or claimed in the patent. 3. PATENT No. 47,185-:-CLOTHEB FASTENER-CORBET FASTENER-ANTICIPATION. , Letters patent N'o.47,135, for an improved clothes fastener"consisting of a metallic plate,provided with a projecting stud applied to the under lap of the article to be fastened, and a, hinged button or cap toshllt down on the top of the stud, and enclose the upper lap of the article, when it'is slipped over the stud, by recess in it, held, Mt anticipated by a corset fastening in which the cap are not hinged together, but are attached one to either side of the corset, aI).d operate by slipping an eyelet placed in the cap over a stud placed in the plate. ' -4. RE-IsBuEB No. 8,106 AND 8,123-POCKET-Boox CLABP8-KOnLMAN CLASP-ANTICIPATION-!NFRINGEMENT. Be-issued letters patent No. 8,106, for a,n improved clasp, consisting of a base plate with a stud attached thereto, over which an eyelet in the lap to be clasped passes, a cap whose t,ailpiece presses against a spring attached' to the base plate and engages with it by arms working in flanges in the base plate, holding the cap and stUd in conoeotion, and permitting the cap to ;move back and allow the eyelet to' bll withdrawn; and re-issued patent.No. 8,123, for an iinprbved pocket-book clasp, consisting of a base plate and cap a sloUherein,with its tan.pieqe pressiilg upon the free end of a spring attached thereto, holding ,the cap anq base and forih, so' in connection,and permitting'the cap to as to clasp,between it and the base, the lap desired to be held thereby,-held, not anticipated by the Kohlman clasp, having a base plate and box extcndiT!3', over a large part thereof, a cap extending L