CLEAVELAND FENCE CO. t'.. INDIANAPOLIS FENCE CO.
911
fectively i and safely extend so far. as to disengage or guidethe uprights. Assuming this to there sti.ll doesnot aPMrtt to ,be. any why on device. may not descend to a pOlnt where Its upper surface yery shghtly hIgher than the lower end .of the uprights, ,and thus provide for drivinj:/; the pile ·to a.pointsubstantially lowel' than the lower endofthoseuprights; and, ifitbe:urged that even thus thehiimmer mechanisIIi' cannot, as in the respondents' device; descend to a, distance below of the uprights nearly equal to its whole length, still it appears .!t. 'Qf _. these patents that the method of carrying the weight below the uprIghts by forming part of the weightmeehanism is fUlly described lin the. Loomis· patent, and shown in that patenii,and also. in .the Skinner patent. The, same .method was, suggested by the .practice, in the use of the old fo.rm 'of pile-driver; to allow to descenq,hy, part of its length below the ends or the .uprights, although it ief peI'haps, true ·that the construction and operatili>n of the flanges or not such as to make them a practicaHyoperative device '£<ilr tlais.purpose. The claim patent of the complainant cannot tberefoliebe construed to coveI' such a device; and the bill must, thel'lr fOI'e, be dismissed, with costs. , .'. J
(Oircuit OOUrt, D.
Ju).y 21, 1890.)
FOB INVENTIONS-PATENTABltxTy.,.-FENCES. . ,.e: 'Patent'No. 397,110, granted February 5, 1889,toJohnB.'Cleavelanci;clatmil"tna , , .d of a cornel' or end post, or iI\termediate, and a rod to slUd J,>0sts at 01' near their summits, with,a guy secured. to said inj, 'terrirelhate posts at 01' neardist.ance rod at its end, and anchored to the ground 1 ·i atU., bottom end. " BeW, that ,the clSlJIl embodieS no llatentable Dovel...,.. .
,In Equity.
. O. P · .Jacob8, for complainant. , .C·. &- E.iW. Bradford, for defendants.
WOODS, J. Suit for injunction against infringement of the sixth claim of patent: No. 397,11 0,i88uOO>on the 5th day of February, 1889, to John R Cleaveland, which claim reads as follows: ., In' a fence the combination of ll'corner or end post, an intermediate post, aDd a distance rodseeured to said ]?os.ts at or near their summitS, With a guy secured to said intermediate .post: at or near distance rod. at its top end, and ·anchf)rel1.tothe gr()und at its bot.tom end. substantially as And ·for the PIJrpose described." .. ' . ·:, this claim Js. ,well .stated by COIl). plainant's .expert, Mr. ,Uoo<!, ip lj,ljls:w:erto question fifthj>f his examina.tion in chief: · , ",
FEDERAL REPORTER,
vol. 42·
.. Meqhanically speaking, what substantial elements are involved ina Jence which would emb04y the invention described in the sixth claim,ot that patent? ,An8Wt;r. A pair of postfl connected near their tops by a,rod, which holds them 'at a fixed distance apart. an anchor imbedded in the ground. and a brace rod or cai'Jle extending from one of the posts to the anchor; the arrangement being such that a strain exerted in the direction to pull one of the posts from uvertical position wouid be transmitted to the other post by meanS of a connecting rod. on which there would then be exerted a crushing strain. and,the strain being then, transmitted by means of the, brace. rod or cable to the anohor,in such a direction as to exert a tensile strain on the rod or cable." '
In view of the prior art, 8$ Shown in the record, and of other structuresin common and familiar.. use from time immemorial, it is impossi'ble, I think, to find patentable novelty in this combination. 'l'he same relation of parts,serving thesarpe use, is shown in the drawings of the ;Kelly,patent No. :344,660. Tbesill there shown is an addition, which need$icmJy to be removed oreut 'off between the foot of the posts, each, and the"guy rod, to show iheexactmechanical'construction claimed ,by ,Cleaveland; but, 'as it is,tlie>sill only strengthens the anchorage in the ,ground,;of.tbe pbstsandguy,,,and the,same result would be accomplished by the use of a bed of grouting or a foundation in solid stone. rt is claimed, however, that Cleaveland completed his discovery befllre Kelly applied for hie patent; and, on the other hand, that if this be so, that Cleaveland lost and abandoned 'his right to a patent by failure to make his application therefor within two years after public use. I ,do ,not" fi?d it pecessary to ?etermine. The 3; (18'58'.'{N6. '21';-073,) unquestionably antedates Cleaveland's first attempts,and, little less clearly than the Kelly, is a substantial anticipation. to the contrary is that in the Heikes design the guy rods.b,are represented in the PQwts. (If. the posts to the ground at !IlQt in,' the ,line of the fence; If this be sO,it is certainly not clll1nge:tgElPointofan anchorage from a place outside to a point ,ia/;tneline, of ;the, fence.' If such a difference can be material, then complainant's patent, if conceded to be good, could be evaded by using a guy anchored a little to the side of the fence line,or two guys, one on either of that line. But, aSide from the 'proof of thepl'ior art, this combination is to be fouortd.in nuillerous well-known structures which have been in common use as long as men have lived in houses, ,·,lrPl' ple,- ;tbe: batten,ed, door, orswin,dog gatJ'l, if fastened instead of ooe, affords a complete illustration. The frame alone of the ordinary farm gate,if sunk into the ground a few incht*l, JivjU . &ame construction as that in quesliaYce theus6: oLwood instead, of 'inlll,:whichof course does not aifect,tbe , 'E:xaniples and illustrations are also to he" [ft!tlud:'in" ,the consfruction 'Of Imme houses,or mill/!< or other like structures, with cC?rner posts, tied at and bottom with ,platesaqd siils;:and with bl!l1t'es' org-uys in the corners; atidall anchored (or not) by'l'MS ,tnto the foundation ill the ground; 'And simpler yet,
THE CITY OJ' WOBCESTEIL
918
but equally complete, is the illustration found in the 'scaffolding which builders use, consisting of upright posts, with horizontal bars and diagonal braces, all bound together and resting upon or anchored in the ground according to the emergencies of the case. The court finds that the claim in question embodies no patentable novelty, and that for this reason the bill should be dismissed. So ordered.
THE CITY OJ' WbRCESTEB.
SCOTT v. THE CITy SAMIll t1. NORWICH
OF
WOBCESTEB. TBANSP.
& N. Y.
Co.
(District CO'Utrt, D. Connecticut. July 17, 1890.) 8.u.VAGL
A steamer valued at $237,500 was stranded on a dangerous reef on a Her cargo, worth"100,OOO, and on' which the freight was 1001, was removed during the day without danger; the day being pleasant and the water smooth. The , next, dq.y was rough, and, holes '\Vere worn in the steamer in addition to the cracks prElViotisly made. - The prospect of getting her off depended on the weather; but theceather for ,the following week wasllne, and temporary repairs weremadej apd a); $llle end of seven days slle was taken into a ,port fo:l' further repairs, and aftTwo wrecking companies; with a large outfit, consisterwards" to 8 ing of several steamers, barges, divers,'ete., were in use about two weeks. Held, that the sum of,ll,218 should be allowed the cargo, and $81,758.52 for sav-' iDg the steamer.' :
In Admiralty.
Libels for salvage.
&mMl Park and Walter C. Noyes, for libelants. ' A.lien Tenney and W. L. Putnam, for respondents. Sffi:pMAN, J. ' These are two libels for'salvage. The first named is ltn rem, nitainstthe steam-boat City of Worcester, for salvage for saving the vessel, and the second iEl in personam, against the owner of the vessel,
for salvage for saving the cargo, the service having been rendered atthe request and for tlie'benefit of the respondent. ' , /fhefacts:inthe cases are as follows: The City of Worcester; a Long Island Sound iron passenger and freight steamer, of the value of $237,500,ha:'ving 5'0 passengers on board, and a cargo worth $100,000, upon 'which the freight money $601, struck upi:\nthe south and' west parts of Bartlett's reef, near the entrance to New London harbor, about lo'dock on Sunday morning, January 12, 1890. The night was very foggy. ,No lightsbould be seen. The vessel waS g<ling very 'slowly under one bell. The tide was flood. She was a fine steamer, was built in 1881 at a cost' of8420,OOO, was and is owned by,the Norwich & New York Transportation Company, and was regularly running between Norwich, New and New York.,' She lay upon the reef from-her bow She was drawing about 13 feeftorwardtll.nd v.42F.no.15-58