224
FEDERAL REPORTER.
Bank, 100 U. S. 239, are cited in support of the contention 6f the defendants. Both of these cases were upon promissory notes,·· Thiete was no casion to oonsider the point whether bills of exchange undet the statutes of Alabamawete governed by commercial law or not, and the point was not considered, ditectly or inferentially. On the other hand, the case of Knott v. V8lierablll,42 Ala. 186, is cited in support ofthe positiOn of the plaip..:. tiff.' That was a suit on an inland bill of exchange whieh",as not payable at any particular place.. ' The questions litigated to presentation for acceptance, and to demand and protest. The that in· these regards the paper governed by the ordihary 'rules. of COUlmercialln:w. No reference was made in argument, so far a:saippears,or in the opinion of the court, to the Code provisions; but it is urged that it can hardly be supposed that section 1525 of the Codeof1852, whiqh had been in force for 13 years when that case was decided; would have been overlooked if the court had supposed that that section was intended to dej>rive bills of exchange of their ordinary attribl!teB. .,In' the 'absence of any decision of the courts of A1abama which' can be upon the present question, 'the"duty deemed upon this court aif deciding it by the aid of the best light of which it is possessed. The conclusion reached is not altogether satisfactory, but it is one which Seems most reasonable after a very full c.onsideration. 'The rules oftheooniIllon law are not lobe changed by doubtful iU1plication, and especially should the courts be slow to impute an intention toa atatute,not evidenced by clear, unambiguous, and peremptory language, to change th,e la.w of commercial paper which circulateslargely in, foreign liltates, among those who are not supposed to be familiar with restriotions peouliar to the local law of the state where it may be made, or may be payable. Tbe exceptions to the rulings of the referee are sustained, and the mC). Uon for a new· trial is granted. I
WILCOX 'IJ. BOOKWALTER
and others. April, 1887.)
SAME t. PATENTS FOR
'D. ANDERSON
and others.
(Oirouit (fourt, S.
n. o'hw, w: n.
INVEN.TIONS-REISSUE No. 8,B6B-VEHICLE HUBS. Oomplalnant's patent, (reissue No. 8,86B. August 26, IB79,) for an'improvement in vehicle hubs, held to be valid and infringed by defendants. ., 2. SAME-SKILL AND INVENTION-NoVELTY. The difficulty of drawing the line bet1Veen skill and invention considered. The standard ot skill is being constantly raised, and the standard of invention is, as a necessary consequence, clilrrespondingly raised. The standard of the :late of the alleged invention is that by which the test is to be made. "Novelty," when does it indicate skill, and when invention? _
Suit in Equity. Sltit for infringement of letters patent. upon bill, answer, and proof.
Hearing
wn.COX 'l1. 'BOOKWALTER.
22&
Wood&:}Joyd. for complainant. Arthur Stem, for defendants. SAGE,' J. The patent-reissue No. 8,868" August 1879-is for an improvement il:lv'ehicle hubs. The specifications set forth that the invention "relates to a wooden J;iub, having its waist or middle pol:tion compressed and solidified, and provided with surrounding bands of metal; and the invention consists in constructing the hub; in the first instance, with finished ends, an enlarged belt or zone at the middle, arid an1'lular grooves adjacent to said belt, and subsequently compressing said belt to ita finished size, at the same time compressing into the grooves bands, which engage over and hold the ends of the compre&sed.belt, as hereinafter described." The specifications proceed: "The in vention also further consists in compressi ng. with a grooved wooden hub, a metal strengthening band, seated in the groove, and provided with a continuous side lip or flange, arranged to engage over the outside surface of the, hub, and prevent the erids of the fiber from rising or working loose adjacent to the band j tne peculiarity of my invention in this regard consisting in the fact that the wood is not scarfed down adjacent to the grooves to receive the lip,' but, on the contrary, is left intact, and the lip passed over and forced down into the outer suI1ace, so that theeHdjJ of the fiber adjoining the grooves are confined and held firmly within or beneath the lip. The invention also con.., sists in a peculiar torm of the metal band." The hub is 'first made with its ends finished complete in theusual form, but with an enlarged central belt Of zone', and a groove arOUlid each end contiguous to the ep.larged belt. Two metal bands of iron (If other malleable metal are then provided. They are of a sectional form, corrll#lponding to that of the grooves, and each is provided on the inner side with an overhanging lip, adapted to fit upon and encircle the en.· larged belt of wood on the hub, and each has an internal vertical shoulder or fuce at the inner edge of the overhanging lip. After placing the bands upon the ends of the hub,-that is, over the grooves above described,-with their lips engaging over the ends of the enlarged belt, the patentee forces, by hydraulic pressure, the hub and bands, first one end of the hub, and afterwards the other end, into a tapering die of such size and form as to compress the wooden belt and the bands to the diameter required for the finished hub, thereby giving the hub the appearance shown in fig. 2 of the drawings; at the same time seating the bands in the grooves, with their lips pressed over and into the ends of the compressed- central belt, so as to prevent it from ing, and so as to confine the ends of its fibers. The claims are as follows: "(1) A wooden hub, having the wood leff; in its natural condition at its ends, and having at the middle a highly-condensed zone or belt, provided witb metal confining bands, substantially as described. .. (2) The herein described method of constructing a wooden hub, consisting in first constructing ,the hub with finished ends and&n enlarged central belt, and then applying metal bands to the ends of said belt, and SUbsequently , v.31F.no.4--15
226 reducing the belts and the bands by compression to a size with the previously finished ends.. ' .. "(3) A metal hub-band. having the overhanging lip at its inner side, and t,he .' yertical. or' substantiall>' vertical, shoulder at the inside of said lip, as shown anq.describedj the lip being adapted to confine the spoke-receiving portion of; the, ,hUb, a,nd the shoulder to abut squarely against the grain of said portion to prevent its displacement.. . The method of preparing banded wooden hubs,consiBting-in grooving the hub. and applying thereto a balld having a body adapted to fillllhe grooves, and a side lip adapted and arranged, to extend beyond the groove, and engage over the outside surface of the hub, and ftna,lly seatipg said band down firmly with,in with its lip overhanging, and covering. the ends of the fiber adJa.yentthereto.. . . .'., . "(5) :A 'grooved wooden in combination with a seamless metallic band, haVing a body seated in the groove, and a side lip' seated over and upon the outside surface of the hub, adjacent to the surface being left un· cut. or withollt,scarfing. to J,"eceiveaaid lip. so tl;J.at tlle lip may cover the ends of all t;he ',' .' . ' .. (6). gropved woo¢l;en h"b, 11;1. with the continuous metallic, band having:itsbody in the groove, and the sideJipseated flush within the hub, over: of th'EI sur;faoe, adjacent to .the groove, and confining beneath of,tb,e outeljmQs,t.fiber, as described and shown." The specifications contain follbwing disclaimers: am it is oldto wooden hubs by means of metallic bands compressed into grooves therein, and otherwise applied thereto. I am also aware that a machine has been hitherto patented for compressing and banding vm:ious ,wooden bodies in said patent. I am also aware it pas proposed U:l met3J.lic' bands upon wooden hubs, and at the sametimecotnpress the wood more or less adjacent to the band. lam also aware thAt bands have been heretofbre made with thin edges, and a oen· tral thickened portion of rounding form, and seated' by compression into a groove of likaJ1i0im, the lip being seated in the groove on an inclined or cbamfere4sUpf!¥le,)nsteadoi OVerhanging the groove, and engaging upon the exteriQr ,of the hub, as in ;my case." . . The complainant affirms that he was the first to make a wooden hub, with a,waist or: portion compressed throughout, and having a metallio'band so applied as to make the compression permanent, by preventing, the· woqd from! 'Qv.ercoming the compression. by its. stant tendency ,to expand .. '1'his is' accomplished by, ,the bands\ which are by-compression so fitted to their places that the overhanging lips, extending imtardlybeyond the, edges of the in which they are seated,oovel' and;hold firmly in, place the surface fibers of the hub at each end ofthe;w,aist orspoke..rtlceiving portion. The groove Jnwhich! the band, is 'seated serves also as an abutment, preventing the lateral displacement of the band by the pressure:of the central portion of the hub, or from any other cause. The internal vertical, shc;:mlder, at the inside of the lip of the band, confin:es., the waist or' of the hub; the shoulder abutting squarely against the grain of said portion to prevent displacemerit.' ,That the resulf$"clainied.are accomplished, is conceded. ' T/:1\{ll:dvantages are thaXthe the middle zone of the hub-wHich is greatest near' the tho pores of the
WQod, and 'renpers it to moistu·re'i thus ing expansion· and contraction by atmospheric influences. 1'he ued pressure produced by the constant tendencyofthe compressedwQod to expand serves to keep the bandtight,andto pl'eventits circular movement, and causes the wood t.Q bear on all aides. of the spoke tenon, thus assisting the glue in .holding it to its place. 1'here are other vantages claimed, which.itis not necessary to specify. 1'ne general result is a hub light, shapely, strong, sufficiently elastic, durable, and easily and cheaply manufactured. and 1'he defenses are anticipation, .lack of ment. Of the hubs introduced in evidence a.a.'anticipating the complaipant'$. invention, four are specially referJ;'ed to by defendants'. counsel.1'hey are the Bookwalter plain band hub,firstroade in 1872; the Shute hub,patent. No. 156,893, November, 17,1874, application October 6, 1874, date of invention spring of 1872; .the Ford hub, first made in September, 1873, for which a caveat was filed, but no patent applied for; and the Olds hub, patent applied for March 4, and granted March 24, 1874, for an invention made in. the fall and winter of 1873. None of these hubs had a compressed central ione. 1'hey were all banded, .but, for the reasOn that there was no compressed central zone, the expansion of which Was to be prevented, the .great object in view wasta prevent the splitting. of the hub, either by the driving of the spokes to their places. or by the llse of the completed wheel. Accordingly, in the Bookwalter hub,. the band was not seated in a groove, but upon a scarfed or chamfered surface,shaped by turning to receive the band, whlch was of malleable iron and bell-shaped. 1'he band was slipped oVer the end of the hUb, and then the, hub and band were placed in an iron cup or die, and subjected to a screw or, hydraulic press; whicb was used, not to compress the central portion of the hub, but to upset the band against and upon the scarfed or chamfered surface. This opemtion necessarily compressed the wood of the hub under the baud, and immediately adjoining its inner edges. It was unlike the complainant's hub, in that the band had no overhanging lip, nor vertical shoulder, tQ prevent la.teral displacement ofthtl fibers of the central zone of the hub, nor abutment at the outer. edge of the band to prevent its slipping off. It does not anticipate the complainant's invention. 1'he Shute bub-bands were provided with inwardly projecting spurs, which were pressed into an inclined or chamfered surface of the hub, where the central zone tapers down to the inner line of the ends of the hub. In pressing these lmnds to place, there was.some compression of the parts of the hub under andimmeqiately adjacent to them; but the bands were for a time cast with shoulders at their outer edges, which were pressed into the hub,and intended to prevent the bands slipping off; but also prevented them from being forced further on towards the center of the hub. The shoulder was subllequently omitted. As the recordis.llilent as to the dateQf the omission, the presumption is that it was after the oomplainant's.patent. The fordng of the inner rixn or edge of the band to close contact with the hub caused it to hold down the
228 fibers of the portion of the hub which it pressed upon, but it ·u.snot of such form, nor was it so applied, as to serve the purpose accomplished by the use of the complainant's bands. The Ford hub was first turned fu the required size with annular grooves to receive the bands, which were compressed into the grooves, and had their outer faces upon a line' with the· contiguous portions'of the periphery of the hub.··No hub of this description was manufactured for use; no wheel with such a hub wasevermltde. The hubs that were made, were made in the course of experimenting, when Ford thought of applying for a patent., ,That'idea was abandoned, and therefs,here no anticipationofthe complainant's hub. ' In the Olds patent, too, the bands were set by pressure in grooves,. ·whichthey filled so as to be flush with the surface of the wood. The 'wood of the hub adjacent to the bands was compressed during the settingproeess, but the drawings do' not show, nor do the specifications describe,an overhanging lip of the band,anticipating that feature of the complainant's hub. The next question is whether:there was,invention in the complainant's improvement. In support oHhair ClOntention that the skillofa mechanic, trained in the art of wheel-making and wood-working,was all that was required to produce the complaitlant's hub, they refer, in addition to the patents already cited, to the Woolsey patent, No. 149,623, dated April 14, 1874, for atl improvement in hubs, and the Gilman patent, No. 113,644, dated-March 22, 1871, forimprovementin the methods of banditlg con1pressedwood. The outer edge of the band ofthe Woolsey hub is curved downward, and, pressIng into the wood, (there being a groove in the hub to receive it,) formed a for the curved edge to rest against, and 'thereby prevent its coIning off or getting loose. The bands were, put on at each erid of the mortises cut to receive the spokes, atld the object sought to be obtained was topravent· the ends, of the mortises from giving <>wa.y or crowding up by the pressure of the tenon of the spoke while it was! being driven to its place. ,The Gilmarrin'l.provement consisted· of a sectional die, provided with recesses for th(l reception of the bands. This sectional die, with metallic bands in the recesses, was, placed' upon a platen or follower. A compressing conical die of the same interior diameter at its lower extremity as the sectional die, and recessed to receive the top of the sectional die, wasplaced in position immediately over the sectional die,and the platen or follower was provided with a corresponding recess, by which the sections of the 'die were held together. The block to be compressed was placed in position over and with one end within the larger diameter of the conical die, the other end being held by a transverse frame of the machine. The sectional die rested upon the movable pi:;ton of an hydraulic pump. The upward motion df the, piston forced the block of wood into the conical die'. ['he stroke of tne piston was then retracted, lowering the die so that a suitable follower could be placed above the partially compressed block. This done, another upward stroke forced the block of wood into the sectional die, and, the two dies and the block being of uniform lengths, the ends of the block were inclosed in the bands pre-
wiLCOX tl. BOOKWALTER.
229
viously placed in the recesses of the sectional die, their' interior diameters corresponding to the interior diameter of the sectional die, so that the bands fitted tightly about the block. The sectional die was then released from the machine, and th,e compressed, banded block taken out. Now, it is true that, looking back after complainant made his improvement, and after its utility and superiority found recognition in the market, we can find in the Gilman patent a method of compressing wood suggestive of the method employed by complainant. Complainant's method is simpler, and Gilman's method was impracticable for complainant'spurpose. We find also in the Woolsey band an exterior abutting shoulder, designed, and apparently effective, to prevent lateral displacement. We find in the drawings of the Ford band, as exhibited in defendants' evidence, an internal vertical shoulder; and it appears that, by pressing some of these bands to their places, their inner edges were made to bear upon, and to some extent compress, the adjacent wood of the central zone of the hub, and hold firmly the fibers of the wood. But not one of these bands, nor of any of the bands offered in evidence by the defendantS, will serve the purpose as the complainant's hub. Nothing but his band, or its equivalent, will answer. It is sometimes difficult to draw the line between skill and invention, and every year it becomes more difficult. The standard of skill in mechanics, as in the professions, is being constantly raised. The workman who employs the best skill of his craft of 30 or even 10 years ago, and only that, may be properly discharged as incompetent, as the physician who treats his patient with nothing better than the best methods and remedies known 30 or even 10 years ago may be guilty of malpractice. The standard of invention is, as a necessary consequence, correspondingly raised. As Justice MATTHEWS sa'id in HoUister v. Benedict Manufg Co.· 113 U. S. 73, 5 Sup. Ct. Rep. 717. there must be "something more than the expected skill of the calling;" but when we come to determine what that is, or rather what it was at the date of the alleged invention,-for the standard of that date is the test,-we must, if we proceed intelligently, consider what those engaged in that calling were seeking to accomplish, and what they were, by their skill, actually accomplishing: That is, after ail, a good prilCtical test of what skill can accomplish. It is not always a complete and certain test. Two or more persons, each acting independently and of his own knowledge alone, may arri ve at the same result-undoubtedly invention-at so nearly the same time as to make it as difficult to decide who is entitled to priority, as when two or more astronomers almost simultaneously discover a new comet; and yet if there were, under such circumstances, a score of rival applicants for letters patent, that fact would not negative invention, for it is clear that it is invention, and the only question is, who first made it? On the other hand, an improvement in any department of manufacture or of the . useful arts may be made, shortly after the necessity or occasion for it arises, by one person alone. It may be novel and ingenio1ls, and yet, to one familiar with the state of the art, and the handicraft of those enin it, it may be clear that skill only, and not invention, is dis-
230
Jr.I\1QERA,J, REPORTER.
the fact that no otller one had, at or about the same time, produced the same result, by substantially the saD;le or by any means, would.not make it invention. But when for years skill is unsuccessfully reachiIJ.g out in all directions forll. desired result, and, finally some one, by a new <;levice or new proceSR, no one else had thought of, accomplishes it,that fact is strongly indicative of invention, and it may be conclusive; for skill had, long sought it in vain, and therefore the law may recognize it as a discovery, oras the embodiment, novel and useful, of a conception; that is, as an invention. How is it in this case? Asea.rlyas 1851 it was to apply. metal bands to hubs. They on while hot, and then suddenly cooled with water, 110 that they shrank and compressed the adjacent fibers of the wood. Then followed hubs with shell bands. After 1870 ther.e was a considerable dernand for banded huhs. What everybody in the trade was striving for was a hub light, elastic, and strong. The complainant was the first to compress, and at the same time bund, the central zone of the hub. Thill was nearly five years after the revival of the demand for banded hubs, for the complainant fixes the date of his invention in the summer of 1875. The application for his original patent was November 19. 1875, and up to that date nothing embodying the features of his improvement was manufactured or on the market. The advantages r/lsulting have already been referred to. It was a greater improvement than had been made by any of his predecessors. If it was not invention, why had it not been wrought out by the skill of some one at least of tbe thousands of workmen in hubs and wheels throughout the United States constantly doing their best to make improvements in the very line of his improvement? The conclusion ofthe court is that it was invention, and that his patent is valid. Without referring to the claims in detail, it is sufficient to say that, excepting the second, which was upon the hearing withdrawn, they are sUFltailled, and that the objections to the reiscued letters are not well taken. Upon the question of infringement it is not necessary to enter upon details. The grooves of the hubs manufactured by defendants, and introduced in by the complainant, are not identical in shape with those in complainant's hubs, nor are the bands, but they are equivalents. The inner sides of the grooves are not vertical, but they are substantially so, within the fair construction of complainallt'9 patent, The bandsare not made with lips. but they are of such shape as, when compressed i11to the. grooves, to overlap and confine the outer fibers of the centrl¥ of the hub as do the bands ofthe complainant's hubs, and they .abutagainst the central portion of the hub, which is compressed by prElssure, so as to prevent its displacement; the outer edges of the bandf;J bearing against the outer sides of the grooves) substantially as in the complainant's hubs.' The decree .will be for complainant.
THE
GREENPOINT.
231
THE GREENPOTh"T. 1 MURPHY and others (Diltrict Oourt, 8. D. 1. t1.
THE GREENPOIN'1'. '}fl,
York. April
1887.)
COLLISION-STEAMERS-LEAVING PIER-UNJUSTIFIABLE START.
The steamer G. R. left her pier in theEQst riv.er on the ebb-tide, as the tug Greenpoint was coming up about themiddle of the stream, and nearly abreast of the pier. The G. R. blew two blasts to indicate that she would go ahead of the tug, to which the latter replied with two. In the strong tide the G. R. drifted a little down and, before she got headed up river, collided with the Greenpoint, which "backed, but was unable to avoid collision. Held, that the start of the G. R. was dangerous and unjustifiable, having reference to the, position of the, Greenpoint, unless she should proceed slowly, and go astern of the tug; Jhat the tug was' at first entitled to assume that the G. R. could keep out of her way by.going ahead, and when danger was apparent the tug did what she could to avoid collision. which was all that was required of her. notwithstanding her previous assenting' signals; and that this assent meant only that sbewould do nothing to embarrass the G. R. in keeping out of the way by going ahead of her. ' The inspectors rules as to whistles do not repeal or supersede the old rules of navigation enacted by congress, and still applicable' to harbors, and do not purport to do so. Two whistles, assented to, do not shift the burden of keep· mg outof the way. The duty to stop and ba.ck arises Wholly from the da.nger of c011lsion, and begins when that danger is obvious. It is the same whether the prior tJ!gnal was of one blast or two. RULES-RULES Oll' CONGREas-ASSENTING SIGNALS.
I.
8.
SAllE-INTERNATIONAL RULEs.....;ApPLIOABILITY TO HAJmOBS.
Thll new international rules are not applicable to harbors in merely local navigation.
In Admiralty.
Wilcox, Ada'TfUl &: Macklin, for' libelant. Jaa. K. Hill, Wing &: Shoudy, for the Greenpoint.
BRoWN, J. 1. The Grand Republic, in leaving the slip at pier 24, East river, hell-ding straight across the' river, and bound eastward, was required by the rules of to kl:lep out of the way of other vessels coming up from below, because' they were on her starboard hand. In: the strong ebb she could not avoid sagging down some, and the evidence showsshe did so. The Greenpoint was not over 200 feet below her, and was probably less, when the Graud Republic started. 'fhe Greenpoint was then in mid-river, where the law required her to be, and , was nearly abreast of pier 24. 2. The event shows that the start of the Grand Republic was dangerous and unjustifiable in the strong ebb, havihg reference to the position of the Greenpoint in mid·river, nearly abrea.<\t of pier 24, i. e., unless she should proceed slowly, and go astern of the Greenpoint. She was to blame for undertaking to go ahead of the Greenpoint; .under such circumstances. She s,tarted to go out of the slip upon her own responsibility, without any. previous Signal or assent from the Greenpoint. The Bd8ttYn, Olcott, 408,412; The Bellevil1.e, Newb. Adm. 500; The N(!1'e:aB, 23 Fed. Rep. 456; The Darcy, 29 Fed. 644· .3. The Greenpoint'B answer by two blasts to the Grand Republic's preI
Repol'ted by Edward G. Benedict, Esq., oftbe New York bar.