840
FEDERAL REPORTER,
vol. 38.
claImed. If it was new, and had not been claimed ·in the original patent, it might be proper to intE\rpret the law liberally in favor of the inventor to enable him to realize the full benefit of his invention. The fact is; however, that an injectoris. an old device, and that BoyIe merely adopted it, and applied it to a new use, and should be limited to that in which,8s it appears, he deliberately placed it, and claimed it. Prouty v. Ruggles, 16 Pet. 341; Eamr,s v. Godfrey, 1 Wall. 79. . I am fm'ced to the conclusion that the reissued letters, granted under the circumstances and for'the purposes heretofore stated,-that is, merely to enlarge the claims,-cannot be sustained as a valid grant. Burr v. Duryee, 1 Wall. 531; Gill v. Wells, 22 Wall. 1; ana cases heretofore In theftrst place, although the original patent was inoperative to protect a particular combination not claimed therein, to which the inventor now conceives himself to be entitled, yet the failure to claim it was not due to any such inadvertence Or mistake as will now entitle him to claim it, the inevitable result being to expand the old claims; and 8econdly, the failure to claim such combination originally-even if it was one that' ought to have been allowed if claimed-oc<,urred under such circumstances, and was accompanied with such full knowledge of all material facts, as amounted to an abandonment of that particular combinaifon to the publio. The bill il3 accordingly dismissed.
NATIONAL CABLll:
Ry. Co.
tI.
l\1T.
ADAMS
& E.P. I. Ry. Co.
(Oircuzt (Jourt, B. D. Ohio, W. D. May 24, 1889.)
1.
PATENTS-ENDLESS' ROPE RAILWAyS-ANTICIPATION.
The first claim of letters patent No. 195,872, for "improvement in endlessrORe traction railways." granted to Asa E.Hovey, September Hl, 1877, which is the construction andaz:rangement togetber of the brackets * * * and rails * * * forming the frame or skeleton for a rope tunnel for endlesstope traction railways. said brackets forming a support for the w,roove rails, and {or the planking forming the sides or shell of the tunnel, ' is void for want of inVention, having been. anticipated by.the Gardner patent No. 19,786, of March 23, 1858, the Thompson patent No. 131,918, of October 1, 1872, and the structure used in 1878 by the OlayStreet Hill Road of San Francisco, Cal. Any differences in construction and material between the structure described by the first claim of the Hovey patent, and the devices covered by the prior patents and nsed by the Clay-Street Hill Road, do not constitute invention, but merely involve ordinary mechanical skill, and are not patentable.
..
8.
SAME-INFRINGEMENT.
If such first claim could be sustained by limiting its scope. so as to make it cover all of the elements described in the specifications, it is not infringed by the structure used by defendant, the Mt. Adams & Eden Park Inclined Railway Company.
"
SAME-ANTICIPATION.
The first branch of the sixth claim of said letters patent, in reference to the combination,. "with the rope tunnel or chamber, of pulleys journaled in the same, upon which the rope runs, " Wall anticipated boY the Gardner patent, and Is not patentable. . .
NATIONAL CABLE BY. CO. fl. MT. ADAMS & E. P. I. BY. CO.
841
6.
SAME.
The second branch of the sixth claim, relating to the "means for lubricating the bearings of said pulleys from the outside of the tunnel, II lacks invention, and is not patentable, in view of the well-known use of tubes to carry oil to inaccessible journals. Even if such sixth claim were patentable, it is not infringed by defendant, who does not use any oil reservoirs or tubes leading from the outside of the tunnel to the shaft bearings, such as are covered by said sixth claim.
In Equity. Bill for infringement of patent, filed by the National Cable Railway Company against the Mt. Adams & Eden Park Inclined Railway Company. The first claim of complainants patent is as follows: "The construction and arrangement together of the brackets, A A, and rails, B B,' forming the frame or skeleton for a rope tunnel for endlessrope. traction railways, said brackets forming a support for the groove rails, and for the planking forming the.sides or shell of the tunnel, substantiallyas described and specified." George Harding, for complainant. Parkinson &- ParkinaO'n and Ramsey, Maxwell &- Ramsey, for defendant. JACKSON, J. As the assignee and present owner of letters patent ,No. 195,372. in endless-rope traction (or cable) railways," granted to Asa E. Hovey, September 18, 1877, the cOIIlplainant brings this suit. to restrain the defendant from infringing the same,. and for an accoup.t()f profits. The complainants insist that the defendant infringes the first and sixth claims of said letters patent. The defendant sets up various'defenses: Anticipation by prior public use of like structures and by prior,patents; want of patentable novelty; and denial of infringement. The issues thus raised and presented have been carefully examined and considered in connection with the evidence in the cause, and without going into details or a full review of the facts established by the evidence, and of the law applicable thereto, the conclusions of the court are the following, viz.: 1. That, con!lidered in the light of the prior art, as shown, more particularly, in the Gardner patent No. 19,736, of March 23,1858, and in the Thompson patent No. 131,913, of October 1,1872, and in the structure actually used and employed in 1873 by the Clay-Street Hill Road of San Francisco, CaL, the device or combination covered by the first claim of said Hovey patent No. 195,372 is wanting in novelty and pat-- ' entable invention, the same been anticipated by said prior patents, and the structure used by said Clay-Street Road. 2. That whatever differences in construction and material exist between the structure described in and by the first claim of ./laid Hovey patent No. 195,372 and the devices covered by the foregoing priOl' patents, together with that actually used and employed in 1873 by the ClayStreet Hill Road of San Francisco, such differences do not constitute invention, but merely involve the exercise of ordinary mechanical skill, lind were not, therefore, patentable. 3. rhat if the first claim of said letters patent No. 195,372 could be
842
\
Bll:POll.'rER,
vol. 88.
by lix:piting ,its scope and operation, so as to it cover and embrace all tbe' elenients oftbe ,combination describell in" the specifications, including the sill, C, and theplankingresti,ng thereon, ,which forms the sides or shell of the tunnel, then, as thus limited and confined to the specific!ltructure described in. the patent, it infringed by the defendant's s t r u c t u r e . , . 4. That the first clause or branch of the sixth Clainrof said letters patent, in reference to the arrangement or oombination ,"'lVith the rope tunnel or chamber of pillleys'jourmiled' in'the same, upon which the rope runs,"w8sitntidpated by the Gardner 'patent No. 19,736: and is wantnoveIty;that, in respect to the second ofsaid Claim ing 'relating to the "means for lubricanng the 'bearings onlaidpulleys from the outside ofthe tunnel, substantially as described andshoWll," no patentable invention is shown.,'inviewdf the general and well-known use of tubes for carryirig oil to inaccessible journals. ' . 5. But, if said sixth claimcontaiiled any patentable'device, the same is infringed by the defendant, who' employs a different means for 'biling its journal boxes.') Defendant does nqt use 'or employ any oil reser.voirs or oil tubes leading from the outl:side of the tunnel to the shaft such as those described. in the specifications and drawings of said Jetters complainant, certainly, cannot properly insist upon such a broad constrUotion of the latter clause of said sixth claim',astocOv,erany liridall openings or holes made'in the cover'ing of the tunnel for the, 'purpose of reaching the: journals' with oil, di,rectly app1ied.. ." .' , . " ,. . ., . , '6; It folIowsfromtne/oregdingcGnClusions' that the complainant's :biU must be dismissed, which is 'I,lccordingly ordered and 'adjudged, with
costs.
."
".'
I
LEGGE'J;'T
v.
OIL 00.
(Oi1'euit (JO!urt,:S· .D. New York. May 15, 1889.) BARRELS WITH GLUE.. " .' . Letters patent. issued March 10, 1874, tQ Edwarcl W. Leggett. for an Im· ': proved mQde of lining tbe'inside of oil·barrels with glue, the c}aitp,s for which , were a prQcess"wherein the glutinQus IDIIMrial,. ipstead ,of being produc!!.d by reductiQD frOID a previous]ysolid state, is permitted tQ attain only aeertain . , ; liquid consistency,audis then app,lied to the package and permitted to harden thereon for the til'st time, "and 'a barrel. cask, eoated or sized by the lllaterial, and by the ID94e or process whereby it is absQrbed intQ and strengthened by.the wo()d for want of inventi0Il'
" In Equity; On bill injunction.':-" , . :·P1dwinM. Felt and EdU;ardWe&n01'e,for plaintiff. :, C!Jharle8 a. Beaman and EdwinN. Dickerson, for defendant. :.
t··,
l
r'
SHIPMAN,
J .. This is a bill in equity to restrain the defendant ftom for January 24,1874,