FEDElt>tn '., BEPOI,.TEl\.
I
Bet;)Tand others v,' LAMB. I
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2.
'A claim shoiild be limited the specific ,improvementdestrribed, , :where the state of the art ddesnot admit of a great original discov-
to
OF THE ART.
ery
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a.LETTERS PATENT TUBES. Held. there/we, that a Patent for" the hnproved
deScribed, of making tubes by rolling the skelp with longitudinal ridges 'and furrows on its altern\1teedge-faces, and lapping t.he'same in a spiral direction. to'forma: lock thllmanllerspecified." was not applicable to the s,ubif;lquentpro,(luction of tubes with a ¢9ntinuou8 folded ontsideseam, made by a machine subsequently illvented and used for that purpose.-(ED.
In Equity. Samttel A. Duncan, Gawton l!1'owne, and Robt.H. Duncan, for complainants. John A. Loring and'W. H. Drury, for defendant. LOWE:L:L, C. J. ,J. B., Rapt,f.lissignor 'of the plaintiffs, ob. tained his patent, No. now in suit, October 13, 1869. He, pegins by saying that his invention consists in a spirallylapped metal formed with a lock following the direction (!If tpe spiral, by oonstrncting the skelp, of which the tube or tuhingis made, with a tongue and groove, or locking ridge and furrow, on reverse sideaof its oppo'site edges; so that, on spirally wrapping the skelp around the mandrel, its edges·not only lap one over the other, but also i;lstablish a lock by the fit of the two topgues in' the grooves of the skelp; after,which the tubing may. be welded, the spiral joint closed by soldering, Qpotherwiilie ., ,He thendeficribes and draws askelp with grooves andfu,rrQws on each side, which he.aa.ys:may.bemade by rolling the }le8(jed. sl\elp in one operation; and "that the sawe heat ,to, E;lffect t,he I;lpiral :twist of tlle skelp around a rotating in doing which the edges' of the
skelp;wiUJo:rm a. 'lock, letc'.'.; and ,he 'exp1aanllltsQadvantaigesi He- then:Eluggesta ,Ii modifioation: Of :farm,; *,wJi,ioli ' shonldhavewbolly,or'mainly j onlontiftc8 ia,ind,a furrow on ;the 'other. ,The pa him' lll' claim for a spirally-formed look following the'dir.eetioiJ ofAhespiml;"but :gave him "theiiniproved .method;: herein described. of;maJcingtubes 1·by rolling, with)lbbgi.i tudw.al·rid8E'sand furrows' alternate (edge.faeeS',i;-Mid lq,pping the 'lIaane in aspirablirei}tion, to! fll>tttl a lock' in tqe mainner, specified;" /1'r · · ,,' '. if! fit i,rrRitohie 'began to experimen"ll UpOnI the:machine.in <1870, which· was patented to I hiin· in ,187'2;' for .winding sheet; metal iIlt()ra spiraHllbewith,a ;continuous El,881m'on its outside, Resides-the:pli.tent for'the·maC'hine, he.reoeived.one lor the pille, asa new article of manhf.a:otiltei i '8ome1years later, Root inv:ented a for pipe!j<an;d both parties M'6Jnow' engagoo.in mak,ing *liatcma.!'be :calledtbe B,itphiepipe,which: has proved to! be ,ava:luable article<fo:r man1 :purposeB.Theonlyqdestiorii is-pwlilirinvenood it? .The plaintiff i1l8ists that lie a spiral,ly;..woondtqbe, with"a locking seam, as a new and originalidea,'iwith' onepl'actical application/andean cove)) allitribes,whica'J'eolile withintliat descriptiQU. .the :patent of Root gives no -inatruetion in. the art ,of'ma.king pipes' of sheet metal with' folded seams, in marking whichno,nre and none of theparrticular; procesi3es' described Or referred to' by. RoQt areem.ployed;,' and that Buch;lll pipe :or tube not only.heyond but,entirely,.a.part.from the procass pf Rook :Thepatent-officeappears to have Been of this-Opinioi:t; A; very large partiof ,the record 'consists·of JargumeritidIi the form [otdepositioJis.upon tlil,e constrilction of Roa1l's speci;': · fication sufficiency. ('They are able feiW linesjof :spel>ijiQation, would have been:wbrth ,them:o,u., :; Mr. Boottestiftedthatafter;,pe hadmade:his invention fof applic:ati()n.- to. weldfl.<Ltubes,[ it'ooourl'en'to him that the mode df"uperalttion might· bet<applied:to fu.:bes 9f,sheet.metal,and tliat:he then ."n1odificationclause,Hjund caused. it to be inserted in l'his he repeate4'severaUimes
in,the'Qorirserof
Hac and his expertslurther liubecould not be ma.de by follow-
inglhis Dlodifi:ed;kiesomption,:amd therefore it must have been intended: for. some,t,hingelse,'and.' ths,t there iELnothing else but sheet metal Ito 'whiohwe'can: reasQ:llablyrefer it. , :Hearne out,'at the.eDid,Qf of Mr. Root, that-helhad the i00g1:J::draft of some earlier forms of pa:par being put into case ,·shows upon'.its face thllit, the ,modifiCation clause' was not aD.; Lait'ellthought, but the original form of the specification; and,that it: Wfl/S nbt:intended:ta lJefe;rrtO: sheet-metal, but distinctiy,and solely tb, pIa nietilJ,. The;'res ponderit' s counsel commented WlUh:grea.tseve:rity 'upoJitMr; Boofs ,eatHer ,evidence, thus oontlladictw,:asbeingintenitrienally false; but'it isnot sary to itlllpute any:thirig hut :f.orgetfulness to the , Iris rSlldin!'lss:, in: puodl1''riqg ,a iwhich he might ha.v.esup. very much in hisfavO'l',upon:the1I1oral issue,if!there:were suca in 'the case. The fact iSldltwagiIlg enough without: epithets, fOl'iit,destroys'the froin: a ,supposed intent;, and vltlue {)f'Mr.:Root', memory,on other'points.:. , : , , - ' 'f'" The a'tateof .theam,l,as. shown by the' IDnglishrpatentSi' of BUl1r & Qhilds, is that, spitaUweIlladtubes had, Qeen made by Burr With !aeairrt,andby ChililsiWith Rscarfea'SElatn, besiqes:the' very (J)ld -and butted seam,; by spirally..wound gun balrrels bad, heen, made. Towards the olose of' ChHOOlf' ,are: found these : words·:, ,I have oJ1ly rlesOlribl!d the, ribbons, for strips;. as ha .,evetl' or plaini e(i.ges; If do not oOlltfine 8s'iicwill be mayoo:of any such irr,egtilar Wnn"tJaa!i,wlo.en two edges are ,brought,·:togeiherihey :wilUoek inio:eQiChr other!' :,HwaS':up'GU tbis patent, I :suppose, that the iOffieerefnsad the very broad 'cillim originally asked, fOr by Root. 'Almostas much argumentative e"V"idence lias been given to! prove iliaJtChildssayswhathe: does not mMIl, when he speaks of the edges of s.' pieoe 9f metaldocking,8.s is addboed to show that Root meaius'what he dOe8'Dot say, whetihe speaks' of s. ofa lap-welded tube;
'ROO-r V. LAMB. '
22lS
',' The state of the art of making tubes, or pipes of sheet metal, :Was somewhat different.' 'They were not made in a spiral'form, though straight pipes were joined by a folded seam like that of Ritchie. " In this state the two arts, the specification of Root appears to be addressed to, persons who are acquainted with spiral tubes. He does not teU how to make them, but how to make the skelp from which they are to be nrade. I understand that the difficulty in making the Ritchie pipe is 'ndHn making the strip, but in wirtding it up spirally at the same time to'nrake a folded seam. There are many reasons for saying tha,t Root's does not, Up011 its face,appear to refer to that sort' of' metal used by tinsmiths. The fact that it was not intended to r!=lfer to them would not have been admissible, but for certaln inadmissible statements of the plaintiff. The words, as construed in view of the art, are the important things. The word "skelp" is never used in the art of the tinsmith, and Ritchie's strip of sheet metal is not a skelp. To be sure, a patentee may misuse a word, but when we are seeking for his meaning, the ordinary signification of the words which he uses must skelp and the have its weight. He speaks of the . saving of fuel, and of other things applicable to tubes of a certain class, and not applicable to the Ritchie tube. It is said that some of these words and phrases are not found in the modification. This is true; but no new process is referred to or hinted at in that clause. It is merely to save repetition that the phrases are left out. The skelp referred to is the same sort of skelp, excepting in the form of the ridges' and furrows, a.nd they are intended to be rolled upon the heated skelp. The brevity of the. clause is strong evidence that it does not refer to a different subject. If the patentee had suggested' that a pipe or tube of sheet metal might be made by winding it spirally wit4 a folded seam, it is very doubtful whether he could have patented that pipe Without showing the world how to make it. I do'not understand it to be seriously contended on his behalf that the Ritchie pipe could be made by following his specification. He v.7,no.2-15
"
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226
FEDERAL
to invents. machine he could man· .If, then, he had attempted to monopolize sl:\eh pi'pe, he ought to have been permitted to do so; for he had not made it. His contention, as I have said, is that the invention is so great: and new that it covers later inventions, and monopolizes the fqt1,lre. But inview of, the state of the art, spiral welded tubes being' old" an:d the. folded seam in . straigl1t tubes or pipes of sheet Dl,etal being old, there was no PPpOl:tunity for a great disoovery. claim, therefore, should,' have beel} limited, precisely improved method which as it is limited in the patent, to ;He says he has described spirally-wound he of kind, if they are made by locking the .\'leam continuoqsly in the course of making the pipe. But I ftudthat he has.not described pipe, nor anything from which a skilled mechanic could make one, and that the Ritchie pipe does not infringe his patent. Bill dismissed.
himseU wile
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, ,TJIE LIBERTl' No. 4.(District Court, 8. D. Oluo. May, 1881.) 1. TORT-SUIT IN ADMIRALTY BY INSURANCE CoMPL'iY AGAINST VESSEL CAUSING LOSS-SUBROGATION-PARTIES,
Certain insurance companies, under a contract with the owner of a cargo, issued to him a, policy of insUl'ance upon the same. The owner ,of a barge contrallted with the owner of the cargo to receive and deliver the cargo at a port of destination, and, having received the cargo, the barge owner contracted with a tow-boat to haV'e the barge towed. By the negligence and fault of the tow-boat the cargo was lost. The insurance companies paid the loss and took an assignment of the claims, , Held: (1) Under such circumstances, the owner of the cargo could maintain an action the tow-boat for the loss. (2) That the insurance companies, by the payment of the loss and assig"'lI)lent of the rights of the insured, became subrogated to such . . rights. *Reporled by Messro, Florien Giauque andJ, C. Harper, of the Cincinnatl bar.