74
FEDERAL REPORTER.
decitles that the clerk is not entitled to commISSIOns "for receiving, keeping, and paying out money," unless the money has actually passed through his hands, or into the custody of the court, or has been agreed to be so considered. In re Goodrich, 4: Dill. 230, it was held that the statute implies the money shall be actually received, kept, and paid out by the clerk, and that, generally at least, even where a fund is ordered to be paid through the clerk, the parties may disregard the order and pay directly, and deprive the clerk of his commissions. And see Upton v. Triblecock, 4: Dill. 232, note. I doubt if I should go so far as was done in Goodrich's Case, if it appeared that there was a combina. tion between the parties to make the payments so as to defeat the clerk's commissions. However, this case clearly falls within the rule that the clerk is not entitled to commissions unless the money passes through his hands, either actually or constructively. It was not the duty of the assignee, under any statute or other law, to pay the fund he held into this court, nor was he even ordered to do so. The item of $90, charged by the clerk, must be, therefore, disallowed.
HOLLY V. VERGENNES MAOHINE
Co.
(Oircuit Court, D. Vermont.
October 5, 1880.)
L RE-rssUE No. 5,132-FmsT CLAIM.-The first claim of re-issued let. tel's patent No. 5,132, dated November 5, 1872, for a new system of water-works for supplying cities and towns with water, lteld valid. Holly v. Union City, 14 O. G. IS. 2. PATENT No. 94,747, dated September 14,1869, for a new safety valve for street water pipes, held valid. 3. OL.A.IMS-CONSTHUCTION-SPECIFICATION.-The specification of a patent may be referred to for the purpose of ascertaining the meaning of the claims. Bates v. Coe, 15 O. G. 337. Brooks v. Fiske 15 How. 215. 4. MACHINES-SUBSTANTIAL IDENTITY.-Machines are substantially the same, in the sense of the law of patents, when they perform the same function in substantially the same way to accomplish the same
HOLLY t1. VERGENNES IfAOIIINlIl CO.
.
'is
5. BAME--SAME-FORM.-In such casefonn should not be regarded except where it is of the essence of the invention. 6. INVENTION-COMBINATION-LESSER COMBINATION.-Ifa patented inven. tion consists of a combination of numerous parts, including in it other new and useful combinations of less of those parts, it 'Wo11ld seem that the patentee was entitled to the exclusive use of thOle lesser combinations, as well as to the exclusive use of the whole. Sharp v. Tifft, 12 O. G. 1282. Prouty v. Ruggles, 16 Pet. 336, distinguished. 7. PATENTABLE DEVICES-INFRINGEMENT.-Patentable devices cannot be used for the purpose of infringing an existing patent. S. 1NFnINGEMENT-COMBINATION-VENDOR.-The sale of a J:n8chine to be used for the purpose of infringing a patented combination renders the vendor liable. Bowker v. Dow" 15 O. G. 510.
In Equity. Hatch Stein and W. L. Burnap, for orator. Roberts Roberts and L. L. Laurence, for defendants. WHEELER, D. J. This suit is brought upon re-issued letters patent No. 5,132, dated November 5,1872, for anew system of water-works for supplying cities and towns with water, and original letters patent No. 94,747, dated September 14, 1869, for a new safety-valve for street water-pipes, .both granted to the plaintiff. The defences are that the plaintiff is not the original and first inventor of the inventions described in the patents, and that the defendants do not infrinlge. The cause was heard at last term on pleadings, and arguments of counsel. Before the plaintiff's invention, water to supply cities and towns was, when the supply was located high enough, drawn into a reservoir and from thence into a main pipe, from which others ramified through all parts of the city or town, and into dwellings and other places, to spigots, from which it could be drawn as wanted for use. In IeTel places, where there was still an elevation for a reservoir, it was forced by pumps into a reservoir; and when there was no such elevation it was forced into a stand-pipe of the necessary size and height, or into mains connecting with such a stand-pipe, and the pressure of the water in the reservoirs or stand-
"
16 .
FEDERAL REPORTER·. : .
pipes, would regulate the flow to the spigots . and hydrants. Where it had to be supplied by pumps the irregularity in the amount drawn at the spigots and hydrants would not admit of a uniform supply to the mains, and if pumps were employed furnishing such a supply the incompressibility of water is such that when the drawing ceased the pipes would burst, or the pumps or machinery be broken. The plaintiff's inventions obviated these difficulties by providing pumping machinery which increasing pressure of water in-the mains would slacken and decreasing pressure would hasten, and guarding against sudden shocks from the quick closing of hydrants by the use of an air chamber connecting with the mains and preventing the danger of continued pressure from that source, while the machinery was sla·ck. ening by a peculiarly-arranged relief valve, 'applied to the Le water could be pumped directly into the mains mains, and drawn therefrom by the spigots and hydrants at pleasure, with safety to the works, without any stand-pipe or reservoir. None of the syste{l1s set u'p as anticipations had The London these 'contrivances combined in this 'constructed' by Peter Maurice in 1582, as. descrioedby Thomas Ewbank in Hydraulics and Mechanics; the system of water-works described in the English patent to Joseph Bramah, dated October 31, 1812; and the London bridge water-works, described by William Mathewfl in JIydraulia, 1835, -had pumps forcing water directly into mains to be carried to inhabitants, but neither of them had any for slackening the quantity forced as any pres· sure increased from diminishing the quantity drawn as de. scribed; neither does it appear from the descriptions given, but that the water flowed through by a constant flow, and was canght as wanted for nse. Birkinbine's system, at the state lunatic hospital at Har" l"lsburg, Pennsylvania, haa connection with a reservoir at the top of the building. Linsley's system, at Burlington, Vermont, had connection with a reservoir above the city. Bir· kinbine had no means for regulating the quantity pumped by
the 'severity 'of the in' the' mains, and none' for lessening the quantity as the pressure inete(l,sed. His system was nearer like the plaintiff's than any other was; but his lacked some of the essential features of the plaintiff'8. His had means for slac'king the pumping machinery, when the pressure in the mains decreased, to prevent the machinery from running away if the pressur should be removed by burstl ing or other casualty; but this is quite different from regulating the supply according to the pressure. He had pipes leading each way from the main, carrying the water np to the reservoir, and as to those pipes the water was pumped direetly into them without going to the' reservoir; but, as they were connected by the main with the reservoir, the pressure'in them would be regulated by the' pressure from the reservoir, and would not in any manner regulate the qttantitypumped'ac. cording to their requirements. Birkinbine had· a safety-valve on' the main' for the same purposes as the plaintiff's relid waIve, but his valve. was held by dead-weights, while the plaintiff's is ste;;tdied by a Nl\)ne .oLthesething!3show :that the plaintiff was ;nQtthe original, and; first inventor of th.e ,inventions described, in, both patents. is inaccon:lf\rlce with the decision .of Dnm!-mond and, Gresham,JJ;, inH ally v. Union City, 14 O. ,q.5,. so far as that decision goes, which only involved the 're-issued patent. This suit rests UPOIl the first claim to th,at which is for "the of supplying a city with water,-tbat is to ,say, by pumping directly into the water mains w:he.n.the apparatus for. that purpose is supplied with contrivances .by the pressure within those mains may be preserved in a great degree uniform, sufficiently so for practical pnrposes, or increased or diminished at pleasure,substantially as and for the purpose above shown>' It is objected that this claim does not specify any devices constituting the system mentioned, and that it is too indefinite to furnish a foundation for a claim for infringement; but this objection cannot prevail. The patent is to be read all together, for the purpose of ascertaining the meaning of the whole and of every part; consequently the specification may
78 be referred to for ascertaining the meaning of the claims. Bate8 v. Coe, 15 O. G. g37; Brook8 v. Fiske, 15 How. 215. The specification describes pumping apparatus which the increase of pressure in the mains will slacken, and df"l'eaSe will hasten; it describes mains connected with an air-chamber, and a relief-valve for easing the shock of sudden and continued pressure, and mains from which the water is drawn as wanted, or closed mains, operating by pumping the water directly into the mains without a reservoir or stand-pipe. The claim of the system as and for the purposes above shown is a claim for this combination of these various contrivances, operating together in tbis manner, for this purpose. It is for these devices so combined and arranged, and not for any abstl'act principle OF method apart from the devices themselves. 'l'he olaim appears to be valid when so construed. Holly v.Uniolf, City, 14 O. G. 5. The plaintiff's pumping apparatl1s is arranged so that the increase of pressure in the mains will lessen the amount of water being pumped into them by forcing the water against a piston, the motion of which, operating through complicated devices, shuts off the motive power and slackens the pumps. Thilil is the pumping apparatus supplied with contrivances by which the pressure within the mains may be preserved, in a great decree, uniform, which is mentioned in this first claim, and that part of the patented invention covered by this claim is the combination of this apparatus with the mains, the air-chamber, the relief-valve, the pipes, and the spigots. The answer and the evidence show that the defendants have put in water-works for cities and towns, 01' participated in putting them in, which have the pumping apparatus described in letters patent No. 154,468, dated August 25, 1864, issued to John P. Flanders, one of the defendants, for an improvement in pumps, stated in the specification to relate more particularly to pumping engines adapted to the delivery of large volumes of water, as in town or city supply where r;o stand-pipe or reservoir is employed, and in the description referrin.g only to such engines as pump directly into the mains. In this pumping apparatus the increasing pressure
HOLLY V. VERGllJNNES MACHINE CO.
79
of the water in the mains decreases the amount of water pumped in by acting upon a valve which opens and oloses a duct leading from one end of the pumpoylinder to the other, around past the piston, so that when the pressure opens the valve the water is pumped from one side of the piston to the other, and not forced along; and when the pressure is diminished by the opening of the spigots and drawing water, the valve closes, and the water is foroed along' again to take the place of that drawn off. This IS a pumping apparatus supplied with contrivances by which the pressure within the mains may be preserved, ina great degree, uniform, as mentioned in this claim of this original patent of the plaintiff. The combination and arrangement are the Bame in the defendant's works as in the plaintiff's, unless there is a substantia,J. difference in these pumping engines, and the rest of the combination is the same whether there is a dif- . ference here or not. Two questions arise here. One is whether these pumping engines are substantially the same in this arrangement; and the other is whether the rest of the arrangement is a part of the plaintiff's patented invention if they are not. If they are, the defendants have taken the whole of the invention covered by this claim. If they are not, and the rest of the combination without them is covered by the patent, then the defendants have taken so much of the patented invention. In this matter of regulating the flow of water in such pipes according to 'the wants of consumers, without the aid of the force of gravitation furnished by reservoirs and stand-pipes, the plaintiff precedes Flanders, and has produced something which nnderlies all that Flanders has produced, and, if it includes what Flanders has produced, he has a monopoly of it. .Railway Co. v. Sayles, 97 U. S. 554. And these pumping machines are substantially the Same in the sense of the law of patents, when they perforrn the same function in substantially the same way to accomplish the same result; and, except where form is of the essence of the invention, it should not be regarded in questions of this kind, and it is not of· the essence of this invention. Attention should be paid to such
8(\
portions as really do the work, 80 as not to give undue importance ,to parts used only as a convenient mode of construction. Machine Co. v. MU1'Phy, 97 U. S. 120. Here the pressure in the mains does the work of lessening the flow. In the plaintiff's machine it does it by pl'essing against a valve and slackening the machinery propelling the water; in the defendant's machine it does it by pressing against a valve and lessening the effect of the machinery upon the water. The means are the same, the result is the same, and the mode is different only in form. Foster v. Moore, 1 Curtis, 279. If this was not so the arrangement of the mains, airchamber, relief-valve, and pipes was new, and a material part of the invention, which would be covered and included in this claim of the patent, and which the defendants would have no right to take and use in connection with l[landers' invention. Sellers v. Dickinson, 6 E. L. & Eq. 544, 5 Exch. 312; Lister v. Leather, 8 Ell. & Blackb. 1004. Flanders' pumping apparatus is the equivalent of the plaintiff's, in making up a system of wa.ter-works with these other parts, although it may not be the same thing for other purposes. The question now is not whether they are the equivalents of each other for all purposes, but is whether they are for this purpose. In Sellers v. the patent was for machinery, consisting, among other things, of a clutch-box, operating automatically, to cut off the power from a loom whenever the ehuttle became, entangled, combined with other mechanical contrivances through which the momentum of the sley was made to move a brake against the fly-wheel to take up the momentum of the parts and prevent sudden shock from the stoppage. The clutch-box was old, but its combination with the brake was new. The defendants' contrivance for accomplishing the same object, and for which he had obtained a. patent, dispensed with the clutch-box, and had different con- . trivances from the plaintiff's for applying the momentum of the sleyto the brake. It was argued that the patent was for a combination, and that there could be no infringement unless the whole combination of the same elements was nsed. This argument was over:, __ "u, Pollock, C. 13., saying that if a por-