ties to make the license local and personal. The stipulation at the end of the agreement looks to a further license from Lilienthal in case the Moseses should sell out or move. But be that as it may, the Swan patent set forth in the bill is not referred to in the document. The decree is that Lilienthal is the owner of the Lambert process; that. Washburn l13,s infringed upon his rights, and must account for the profits which have accrued to him thereby; and that an injunction issue restraining the further use of the patent in controversy.
April 28, 188L)
(Uirouit Uourt, 8. D. New York.
LETTERS PATENT"";PLUMBERS' TRAPs-NoVELTY.
Where old and new plumbers' traps differ only in the particular that the former are cast and the latter are drawn through a die, a patent issued on such new traps is void for want of novelty.
The court will not take judicial notice of nny suhstantial difference between lead, or other soft metal suitable for the pUl'pOile of making such traps, when cast and when drawn.
In Equity. James A. Whitney, for plaintiff. Peter Van Antwerp and Rodney Mason, for defendants. WHEELER, D. J. This case rests upon letters patent No. 220,767, issued to the orator and purporting to be for an improvement in softmetal traps. Several questions arise upon the defences made, and among them one upon the patent itself, as to whether it covers any pat. entable invention, or any invention at all. The specification states:
"The object of this invention is to provide what are commonly termed ·plumbers' traps' (which are ordinarily made of lead) of a quality superior to those made before the date of my invention, and at much less expense. The said invention comprises, as a new article of mauufacture, a die-drawn seamless soft-metal trap, the same being the trap resulting from the practice of the means and methods herein specified as embraced in my invention-the practice of the process of causing soft metal to issuc with variable velocities, or in variable quantities, at opposite sides of an annular die."
Then, what the figures accompanying are, one being a sectional and another a side view of the traps, and the rest views of apparatus to make them; and then that.
M'HLOSKEY V. DU BOIS.
"My said invention may be manufactured by' any suitable 'process; means, or
apparatus whereby soft metal may be cau8ed to pass invarill.ble qUlmtities or· at variabJevelocities through or from an annular die." .
And then describes the apparatus whi,ch the trap may be produced, and the mode of produbtion, stating further that"The walls of the trap thlis formed will be of thickness !it the inner and outer. sides of the bends or curves," and that' it frotu "in the form of a pipe of greater or less curvature, and with: solid otseamleBB walls, the outer surfaces of which are more or less markedwith'}ongitudinal from end to end of the trap, which latter isithus distinguished. from other traps py its peculiar appearance."
The claim is for !'a die-drawn seamless trap of soft metal as a new article of manufacture, substantially as herein deScribed." There is nothing further· in the patent showing what traps of this in use or known before, or any other advantages of this trap ; neither is there anything in the evidence or case in the record showing anything wherein a trap is any different from or better than other traps. 'l'hese traps are simply bends of water pipes, downwards; and then upwards, far enough to hold sufficient water in the bends to fill the bore of the pipes at the lowest point, and prevent' the passage of air or gas. It is a part of common knowledge that such traps were made prior to this patent, or invention, of lead, and perhaps of other soft metal, by moulding or casting. Traps so made were in very common use in the drainage of houses in cities. This cornmonknowledge and use courts take judicial notice of in cases of this kind. Brown v. Piper, 91 U.S. 37; Terhune v. Phillips, 99 U. S. 592; Quirolo v. Ardito, 17 BIatch£. 400. It was the duty of the orator to point out in his specification the improvement which he claimed to be his invention. Rev. St. § 4888. He had the right to assume, the same as others had, that notice would be taken of this common knowledge; but he was bound to show what there was beyond that which he claimed to be his. With this bunlen upon him he cannot justly claim that there are differences or advantages in favor of his which should be presumed to exist beyond what he has specified. The patent must be taken as it reads, in the light of common knowledge, until it is shown to cover more by those who claim it doel:! cover more. Looking at the old and well-known structure and the patent at the same time, there is nothing difIerent between the old and the new, except that the old is cast or moulded, and the new is drawn through a. die. They are to be made of the same material, and are to oper-
ate fO.r the same purpose in precisely the same way. The new are said to be of uniform thickness about the bends, but so are the old; the new are said to be seamless, but the old are solid at the . juncture of the moulds; the new are said to be marked with "longitudinal straitions," but these have nothing whatever to do with the quality or operation of the trap. They are merely the inevitable marks of the die. They are said to distinguish in appearance the new from the old. but that would only be the subject of a design patent, if any. The only difference there can be, in reality, is that one is cast and the other is drawn. If there is any substantial difference be· tween lead or other suitable soft metal, when cast, and when wrought or drawn, well enough known to be the subject of judicial notice, the court should doubtless regard that difference. There is a well-known difference between cast iron and wrought iron; but this is not because castipg makes the difference. Only iron of the quality of cast iron can be cast. It is not so, or is not commonly known to be so, of lead, or other suitable soft metals. They may be either moulded or wrought or drawn of the same quality, and are apparently of the same quality when done. These old and new traps are therefore alike, in the, sense of the patent law. They are of the same material, and acc9mplish the same result in the same way. The sale difference is that in appearance between the bark·like surface of one and the straited surface of ,the other. There is nothing between the two to be invented and the patent covers no invention. Wood Paper Patent, 23 Wall. 562. However meritorious an invention of the means for making a drawn trap might be, this patent, which, while it describes means, is for the product only, has nothing to rest upon. The bill is dismissed, with costs.
THE J. S. NEIL.
(O$1'cuit Oourt, E. D. Mi88ouri. April.28,18Si.)
1. COLLlBION-RULE IN ADMIRALTY.
Where there is a collision b"etween two vessels, and one of them is sunk and its cargo lost, and the fault is all on one side, the party owning the vessel in fault must bear all the loss. If both are in fault, the loss and costs of suit are . equally divided between the owners of the two vessels. 2. How VESSELS SHOULD STEER IN PASSING EAOH OTHER. Where a steam-boat, in ascending a stream, has to pass 8. descen'ding boat, it should keep within the larhoard half of the naVigable channel, and the :descend. ing boat should keep within the other half.
Appeal from the District Court of the Eastern District of Missouri. This is an action in 'rem. The Chester Harris MantifMtuting Company, or corporation, filed its libel in the-district conrtagainBt the J. S. Neil, a tug-boat owned by the Anchor Transportation Com· pany, of Middleport, Ohio, and alleged that on the thirtietif'day of April, 1880, it was the owner of a barge called the Collier No; 1,a.nd a tug-boat called the Hickory; that the barge ;was being towed up the Mississippi on said day by the Hickory, and was, without any-fault on the part of the libellant, or its employes or boats, run into and sunk by the J. S. Neil; and that the cargo of the barge was a total loss; and that the collision occurred through the negligence and unskilfulness of the crew of the J. S. Neil. The damages wElre hiid in the sum of $3,400. The respondent and claimant, the Anchor Transportation Company, set up in its answer that the accident occurred through the negligence of the crew of the Hickory. There was an award in favor of libellant in the sum of $2,355 and costs of suit, from which the respondent and claimant took an appea,l to the circuit court. The other facts are sufficiently set forth in the opinion. Broadhead, Stayback It Haensler, for libellant. ' Given, Campbell, and R. H. Kern, for libellee. MCCRARY, C. J. This is a case of collision, and the question is as to which party was in 'fault. It is a question mainly of fact, and:E have neither the time nor the disposition to discuss at length the evidence. The steamer Hickory was, at the time of collision, proceeding up the Mississippi river, while the J. S. Neil was descending. They collided in the channel nearly opposite the foot of Goose island, about 30 miles above Cairo. It is conceded that, in due time, the pilotof the Hickory gave the usual signal to the Neil to keep to the larboard, whic'h was answered by a signal denoting assent. It was, therefore, the