ANSONIA BRASS & COPPER CO. tJ. ELECTRICAL SUPPLY CO.
81
office. In Peck, etc., Co. v. Lindsay, 18 O. G. 63, 2 Fed. Rep. 688.. the interfering application was put in by one Webb; "patent to be issued to his assignees, Landers, Frary & Clark," who were defendants' vendors. In Celluloid Manuf'g Co. v. Chrolithian Co., 32 O. G. 383, 24 Fed. Rep. 275, the plaintiff was the assignee of Sanborn, to whom the patent was granted after an interference declared between him and one Kanouse, "al1aplicant for a patent for the same invention, for the benefit and at the expense of the defendants," who "were heard upon the questions involved in the interference case, and were privies to the judgment upon it.," No authority is shown for extending the principle invoked to cover litigants who do not o1anufacture the allegeu infringing article under the grant,assignment, or permit of the interferer, and who did not, either personally or through the interferer, have the opportunity to be heard in the patent-office. In the case at bar, the defendants use, as part of their apparatus, a particular piece of mechanism invented and patented by Bishop, but concededly it has, nothing to do with either patent 'sued . on, and is:no inti'ingement. Bishop is also in defendants' employ, capacity does not appear: certainly he is not an ofthough in ficer 9f theoompany, An affidavit sworn to by him has been read by defendants. on this motion. 'l'bose facts, however, do not make them his privies. They do not claim the right to manufacture under any grant or permission from him, nor is there anything to show such a community of interest as would warrant the inference that his interference in effect secured t6 defendants their opportunity to be heard inthe patent]{Otion denied.
ANSONIA BRASS
& CoPPER Co.
'11. ELEt.,'TRICAL SUPPLY
Co.
D. Oonneetieut. September 8, 1887.) 1. PATENTS.FOR INvENTIONS-ELECTRIC INSULATOR-PRIOR STATE OF THE
ART. In letters patent No. 272,660, granted to Alfred A. Cowles, February 20, 1888, for an improvement in insulated electric conductors, the alleged inven· tionwas a fire-proof inSUlator. The wire, having been covered with a layer of fibrou8 material, was passed through a vessel of metallic paint, and a second layer of fibrous material was ll.dded while the paint was fresh, thus forcing the saturation of both layers. The non-combustibility is the result of filling thellores and interstices of the fibrous layers with the metallic paint. In preV1QU8 English patents,paint had been applied to insulators in connection with inftammable materials, and solel, for the purpose of protecting the lnsulato.rs. It was not shown that, prevIOUS to the Cowles invention, paint had beeD knowingly used, except experimentally, to make a non-combustible insulator.; Held, that the defenses failed, so far as based upon the previous Engl.ish patents, and the known use of paint as a fire-proof covering for electric W1res.
2.
SAME-WANT OF INVENTION.
Butlt haVing been shown that, for the purpose of procuring perfect insu. insulators had been previously composed of iii double layer of fibrous material, each being separately painted, and the second layer being applied ,before the first was dry, 'tela, that the Cowles patent was void for want of invention. .
v.62F.no.1-6
82
Joshua Pusey and Oharles E. Mitchitl,' for plaintiff. M. W. SeyrruJUr and Benj. F. Thur8ton, for defendant. SHIPMAN; J. This is a bill inequity based upon the admitted in, ftingement of letters patent No. 272,660, granted to Alfred A. Cowles, ':li'ebruary 20, 1883, for an improvement in insulated electric conductors. · The patentee's view of the state 'of the art at the date of the invention, nndofthe character and scope of the patented improvement, is given in the:specification of the patent, which I quote at length, as·follows: "Before Ipy invention, copper wires had been covered with one or tWo bt'ltidiDgs of cords, and paralfine;tar,asphalt, and·· various .substances had , been employed for rendering the cOvering water-proof and furnishing a proper insulation. With conductors of this character several accidents occurred, in consequence of the conductor becoming heated and setting fire to the'iiisulation.. this reason objecHonfl were, made to insuring bUildings against loss by fire where electric Jainp wires were introduced; To rendel' the conductor fire-proof, without inteffering with the insulation; led me to invent and manufacture the insulated eleetric conductors to whichthe present invention reiates, wllich conductors have gone ext,elJsively into nseduring a\:>outa year and a halfbefore the . , ' . ,., . "1 PlanuJacture the said fl,re-proof insulation of the in the ingD:lapner, reference being ,had to the annexed drawing, which illustrates the devices employed: The, wire, d, ispassel;1 up through the head of a braidlng-machine, and a layer of other threads isplilced upon the wire in the ordinary. manner.· ThebraldIl'Ig .head, with Spools, is, -indicated ath. The covered wire now passes in at the ,bQttomof tll.e ves$el, c,througha suit.PR94iIlg, ,d.. This whi.te lea4 zinc, ground in oil, and mixed with 11 suitable drier., TllEl paint,sll.turates the braided and the surplus runs down the same back ibto 'the vessel, c, as the braiding progresses. I next apply a second braiding directly upon the paint. For this purpose li.sea'Oild braiding-maching head is employed, the same being shown at f. The threads libat are braided upon the paint force the into the first and at oozes through between the threads. Hence the paint IS incorporated throughout the braided cllv.ering and fills uptQe .pores. 'l'hebmided, covering is rendered even and consolidated by suitable means; such as one or two pairs of k, k. In practiclll useitis covering is/or the grooved most reliable character.. It 'is' compact and hard,the wir'e!is petf ctly, iusull)ted, is no possi'bi,Utt,Qf inflamipg With intense heat th(j, threads .may will not blu'n .. FottlIese,reasonll this insulated 'conductor is preferrep to,thOl'lebeforemade.'H· . : "I remark! that in the manUfactulle of, this conductor itl'is preferable to reel · the covered,: 'Wire as it passesftom 'the braiding andJ)ainting' machine, and reel hang room untl' It is thoroughly than two l;iyersofprmding'1p.ay be · emp16yed,Jhepaint the layers. ,WindIng with ttireads cords may take the place of If desire(1, ,a coat of p.aint may be ',' applied.ou.tside the outer layer of and this may be colored, 80 as to be used in distinguishing the wires. It is always preferable to braid the second or subsequent coats upon the 'butTdo not limit myself in thia plirthlUlar, as thepa1ilt'tnay be dried, or partially so, before the llextlayer of bx;aiding is Paintn'lay be apPlied to the wire1;Jefore :the first. brai41ng.. I am aware that wire has be.en covered with braided tllreads;' also'that India rubber; asphaltum, and similar materials. have been
ANSONIA BRASS & COPPER CO. t1. ELEcTRICAL SUPPLY CO.
83
applied covering eit.her bot or cold; but one coaLing of such material was allowed· to set or .harden before the next layer of braided material .was applied. Hence· the asphaltum or similar material was not forced into tbe interstiees;and, besides this,.aJl these substances ignite by the wire becoining heated, or fire will follow along upon such covering. I have discovered. that ordinary paint,c9mposed of lead or zinc with linseed oil, is tically non-combustible, and it prevents the covering being ignited by the wire becoming hot, if there is a resistance to the electric current. Besides this, fire will not burn along the conductor, as is the case where the fibrous covering Is saturated with asphaltum, India rubber, or similar material." The claims of the patent are as follows: "(1) The method herein specified of insulating electric conductors, and rendering the coating sUbstantially non-combustible, consisting in applying a layer of fibrous material, a layer of paint, and a second layer of fibrous ma.terial "POD the paint before it dries or sets, substantially as setforth; (2) an for electric conductors. composed of two or more layers of cotton or similar threads, with paint that intervenes between the layers and fills· the interstices of the covering, substantially as set forth." , .The patentee's statement that after one coating of heated material, like lridia rubber or asphaltum, ·had been applied upon. the first layer of braided .covering of the wire, such coating was allowed to set or harden 1;>efore the next layer ofbraided material was applied,is trtie, but it is not true that it. was always so allowed to harden. The second layer of ",as often added to the wire while the first coating of wfi.ter-proQf material was in a wet or plastic condition. Prior to the introduction ofelectrjc1amp lights into buildings, a priricipaloPJ69t hi the of electric wires was their thoroughpro'tection ·lIgainst the effect of water or wet air, and therefore such substances. as paraffine, gutta-percha,and India rubbet Were abundulltly saturate the fibrous coveting of the wire. The expert of the used plaintiff sums up the state of the art at this date by saying:" It was old to. make use of a fibrous covering to the metallic wire, and it was old to saturate that covering with water-proof materials,-such, for instance, as paraffine, pitch, tar, resin in a melted condition, and also gutta-percha and India rubber in a solution, and in some instances even paint has been madetise of. These substances had been used to insulate the conductor electrically, so that the current passing along the wire might not escape by contact of the covering with the support or with any conducting substances." He further tr.uly says, in relation to the numerous Englishpatents- which are in the record, that paint had been used "in oonnection· with electric conductors as a protection for an interior waterproofing ()oatingof combustible material, in which case the paint formed or became part of an armor for the electric insulating material. I do not find any instance where the electric conductor itself was insulated, and the coating -of fibrous material rendered substantially non-combustible, by· paint laid in between the two layers of fibrous material,. so that the particles of oxides or catbonatesare pressed and bound into the fibers so as to:fill the interstices thereof, as set forth in complainant'a,:patent. and secured by the claims thereof." .
to
FEDERAL REPORTER.
TheBe patents were generally for land or submarine telegra,ph cables. The wires which were generally introduced into dwellings or buildings were small wires for conducting an electric current of low tension, such as were necessary for annunciators, or for burglar alarms, and after the discovery of the useful properties of paraffine that article was almost universally used in this country to saturate the fibrous coverings of inside electric wires. When buildings began to be lighted by means of electric lamps, and it became necessary that wires for inside use should convey currents of high tension, the use of wires covered with 'inflammable non-conductors became dangerous. If, from any cause, the passage of the current was checked, and the wires became overheated, the inflammable covering melted or took fire. and endangered the safety of the building. The use of paraffine-covered wires inside buildings was forbidden by the board of fire underwriters in the city of New York. To guard against this danger, the patentee produced his patented conductor. The covering was not merely an insulator, but was anon-combustible insulator. It is a success, has superseded the use of paraffine-covered wire, and is universally used for inside wiring for electric lamps. The English patents, a large number of which were introduced, are not an anticipation. They are all simply for electrical insulation, and are expedients to guard' against the dangers from water, and not from fire. Where any of them use paint, such use is in connection with inflammable materials, and is simply ,as a protection for the water-proof covering. Neither was it shown that, before the date of the invention, which was in the spring of 1881, paint had been knowingly used, except experimentally, to make a non-combustible insulator. The defense based upon the English patents, and upon the known use of paint as a non-combustible material for covering electric wires, must fail. The most important testimony which was offered by the defendant was that of Edwin Holmes, the president of the Holmes Burglar Alarm Telegraph Company, who had been engaged in that business for 25 years, and had thereby become familiar with the methods of the manufacture of electric wires. He testified as follows: .. Inter1'ogato1"1J 2. In your business has it been necessary for you to use insulated electric conductors? and, if so, please describe the manner in which those conductors were insulated, beginning back as early as you can remember. Answe1'. It has. When I first commenced using them, the wire was itlsulated by winding a thread larger or smaller, as the case might be, around the wire. and that thread was covered with paint, All of my wire was insulated in that way until paraffine was substituted for the paint. ,Int. 3. How was the paint applied? A. I think· at first it was applied with a brush. I applied it by drawing it through a vessel containing paint, and then through a piece of thick rubber or gutta-perc,ha, which removed the surplus paint, and left a smooth surface on the thread which covered the wire. * * * 'Int. 9. In your business did it ever become necessary to secure 'as perfect insulation of wire as possible, and. if so, what method did yuu take of acoomplishing that result? In answering this question. please confine your an/:lwer to the use of fibrous material and paint. A. I did. I accomplished it sometimes by covering the wire with a thicker thread. and two coats or more of paint; sometimes bj" a thread covering, and 1. coat of paint on that, Int. 10,
ANSONIA BRASS & COPPER CO.
'I).
ELECTRICAL SUPPLY CO.
85
Was that second fibrous covering and second coat of paint placed upon the first covering and paint while it. the first covering of paint. was in an · undry' or · unset' condition? (Complainant's counsel objects because the question is leading and suggestive. Question withdrawn, and the :following inof terrogatory substituted therefor:) Int. 10. Please describe the the first coating of paint when the second coating of fibrous material and paint was put upon it. A. The first coat was partially dried, so as to keep its place. but would admit of an impression from the next covPring of thread. Int. 11. Please state a date anterior to which you are willing to swear positively you placed. as you have described in answer to Int. No.9, the second covering of thread and the second co,at of paint upon the wire. in order to perfect the insulation. A. I did it as early as 1860. to the best of my remembrance." I cannot doubt that Mr. Holmes used wire covered with a double coat ofthread; each layer being painted, and the second layer being applied before the first painted layer had become dry. It will be observed that the method of painting was not the method of the patent, and that the object was not to make the insulation fire-proof, because he ahandoned the painted wire for paraffine: wire. The object of the double coat was to produce perfect insulation. In the spring of 1881, when the necessity had arrived for a non-combustible insulator, Mr. Cowles used first a double Qoated, outside painted wire, but, finding that the insulation was not perfect, next employed the process of recoating a coated and. painted wire while the paint was still fresh. The question is whether the process was patentable; whether, when it was old to cover an electric wire with a double layer of thread, each layer paiuted, the second layer being placed upon an undried first layer, for the purpose of thoroughly insulating the wire, it was patentable to braid or wind the second layer upon a freshly painted layer, for the purpose of filling the interstices of the layers with. a mass of paint, and thereby making the covering a non-combustible insulator. . At the date of the invention, the public had had an electric wire insulated by means of a double covering of painted thread, but the public did not know that such a covering was also non-combustible. Althouj!;h it did not know it, it had had a non-combustible insulator; for I cannot doubt that Holmes'double covering was in the same sense in which Cowles used the term. The thread covering of the Holmes' wire was loaded with paint. It may be said that two facts are assumed, without adequate proof,-one, that Holmes used the double covered and painted wire at all; and, next, that it was non-combustible. In reply to such a suggestion, it is manifest that the Holmes wire, either single or double covered, was one that would naturally be used in a business which required single wires, and that, in the multiform methods of insulation, his method was an obvious and simple one, as shown by the manner in which covering composed of braided and saturated thread was subsequently made. A less amount of evidence is required to satisfy the mind of so probable a fact than would be required in regard to a fact in its nature quite improbable. It is also true that Mr. Holmes' means of knowledge in regard to the manner of constructing his wires
86
REPORTER.
good. Inregard to the of the H61plElsvvire, I have no idea thatthe Cowles process is the only one which,Gan make, by means of paint, a braided or wouD,d thrend covering non-combustible. The only requisite is to fill the interstices and pores of the thread with metallic paint. That the Holmes process upon the wires which he used was adequate for the purpose seems to me quite evident. , If Cowles had made his insulated covering in precisely the saule manner that Holmes'did, it could not have been successfully claimed ibat the fact that Oowles had discovered nor the public knew, viz., that the Holmes covering was non-combustible, made the Cowles covering; patentable. The public already had the article in use as a covering of an electric wire for purposes ofinsulatibn, and also had, in the article, the additional benefit of non-combustibility. The case is not that of Colgate v.Telegraph Co., 15 Blatchf. 365, in which the patentee first applied to practical use his discovery that gutta-percha was a. non-conductor of electricity. It was not shown that gutta-percha 'had ever been used to cover an electric wire; though metallic wires which were used for other purposes had been covered with it. The case rested upon the fact that the inventor an insulator of electric wire. The question then arises, was the· change in the method or process a patentable one?' Holmes wound the Wire, then painted, then wound, again, and repainted. Cowles wound, sUbjected the wound wire to a bath of paint, then wound upon the freshly painted coat.. Any, one of the various old methods by which the covering is compelled to absorb a quantity of paint could be selected. The one which Cowles adopted is one which had been known in the analogous process of insulating telegraphic cables and electric wires, and was familiar to the skilled mechanic in the art of'mam:tfacturingelectriccables. I ilee, in the adoption of this method, only a skillful selection of one ofa number of methods at the hand Of thepatentee,and lleitherthecreation of a new method, nor the exercise of any inventive genins in the selection. The conclusion is that Mr. Cowles met the need of the public by furnishing to it a safe and economical non-combustible covering for electric wires, but that· the history of the article is such that he cannot be called an inventor, within the meaning of the statutes upon thEl subject of patents. The billie· dismissed. '
NASHUA LOCK ,CO. V. NORWICH LOCK MANUF'G CO.
87
LOCK
Co.v.
NORWICH LOCK MANU:r'G
(Oircuit Oourt. D. Oonnecticut. September 2,1887.) PATENTS :lrOR INVENTIONS-INFRINGEMENT.
In letters patent No. 327.820, issued to Emery Parker, October 6, 1885, for an improved door-knob attachment, each knob had an independent sbaft. 'One sliaft. at its free end, had a shoulder. and was inse,rted in a hollow shank on the other shaft, confol'ming in shape to the. spindle, except that on one side,was an enlargement to allow the insertion of the spindle obliquely past a pin: projecting inwardly from the side of the Ilhank opposite the enlargement. .!J'he pin interlocked with the shoulder on. elevatmg the knob. In letter!lp8tent .No. granted to Charles H. Beebe. May 26, 1885, the spindle, which at one qr bOth ends was provided with a locking hook. was inserted in the knob-neck, one side of whICh was 'enlarged so as to allow the spindle to pass a locking-hook on the enlarged side of the neck. Elevation of theknoh interlocked the hooks. Held, in view of the state of the art, that the patent is limited to a device in which the enlargement is opposite the Jilin, and that the patent is no infringe!llent. , "
,
Wm. Edgar Simonds; for plaintiff. Oha:fleB E. MitcheU,for defendant.
J. This is a bill' in equity based upon the allEll?;ed infringe1;Dent of the, first, second, third, and fifth claims of letters patent No. 327!,820"isilued to Emery Parker, Octo,ber 6,: 1$85, for l1on, improved door-knob attachment. The defendant manufactures door-knobs under to Charles H. Beebe, May 26,1885. letters ;The oldform of Gonnectiqg door-knobs to each other was by fasten,ing :tb.etwo.knQh sbanksto,the.connecting spindle by side sci'ews.' Letters 'Were issued December 12, 1882. to Milton C. Niles, for door'knob; shanks, which were connected together upon a new principle. The shaft upon which the two knobs were mounted was divided into two ".An aperttirewas madeinthe side orona of the shanks, which was:a.tupular onei thein.n,er end of the opposite shank was made a lit·smaller than its fellow, so that it would enter the latter,and was , provided with a short pin .adapted to enter .the. aperture. Preferably, of the shank which contained the lugw:as oval shaped, so that the .it could be inserted, when held at an angle, into the other shank far '. ,Permit the pin to enter the aperture, and then could be brought , irito)ine·with its fetiow; 'n1e specification also says, and it drawing shows, that that side of the sbank which is .opposite the pin could also be cut down slightly, so as ,to present the appearance of ,a rabbet,leaving enough of the shank to enter and hold in the end of tM opposite shankwhen the pin engages in the aperture. This was the better method of uniting the two shanks. The specification also shows that, foradditionalsecririty, another lug could be made on the outside of one shank, which would enter intoae corresponding notch on the edge of the inner end of the other shank. The principle of the device was that each knob had an independent shaft or spindle, and thllt the two shafta were fast-, enedtogether by means ofa lug upon one,end.ofone shaft interl9cking
tle
j