FEDERAL REFORTER.
In re 1. IN Blll LIBSBURGlilR,
LIBSBURGER.
(Oircuit Court, 8. D. New York. April 11, 1881.) 2 FED. RlllP.
1113,
AFFIRMJ!lD.
In Bankruptcy. John F. Dillon and M. H. Regensburger, for the reVIew. R. D. Benedict, and J. F. Malcolm, opposed. BLATCHFORD,C. J. I have carefully considered the questions in this case, and am of opinion that the order made herein by the district court, bearing date April 3, 1880, and spoken of in the petition of review as having been made and entered on or about April 6, 1880, was a proper order, and that the prayer of said petition must be denied, with costs.
HAMMERSCHLAG
v.
SOAMONI.
(Circuit Court. 8. D. New York. April 16. 1881.) 1. RE-IBBUlll No. 8,460-PATENT No. 209.393-IMPROVlllMENTB IN WAXING PAPER MOTION FOR PRELIMINARY INJUNCTION INFRINGlll-
:MENT.
2: INVlllNTION-LAWS OF NATURE.
Re-issued letters patent No. 8,460, granted to Siegfried.Hammerschlag, October 22, 1878, and letters patent No. 209,393, granted to Siegfried Hammerschlag, October 29, 1878, for" improvements in waxing paper," to render it water-proof, held, infringed as to the first, second, third, and fifth claims of the former, and as to the first and second claims of the latter, upon a motion for preliminary injunction. The arrangement of machinery is designed to secure the operation of laws whose operation is certain to follow such arrangement of it, and those certain laws are the Jaws of nature; and it is because those known laws are certain to follow such an arrangement that the arrangement is made. The arrangement is none the less an invention because it brings into operation the laws of nature. A patent being a pioneer and foundation patent, both as to process and machine, is not to be construed as confined to specific details, if it fairly admits of the liberal construction to which such a patent is entitled.
3. PIONEER PATENT-CONSTRUCTION.
HAMMERSOHLAG V. SOAMONI.
585
4. PATENT-UTILITy-CONSTRUCTION.
Where, previous to the invention, the article was not capable of being made by a machine or mechanical process then known, and being- made by hand was too expensive for general use; anll, where, by reason of the invention, the article is made of superior quality and greatly cheapened in price, and on these accounts has created a new branch of industry,-the patent securing such invention iB :entitled to a liberal construction.
In Equity. Frost If Coe, for plaintiff. Kitchen If Brown, for defendant.
, '.
BLATCHFORD, C. J. This is a motion for preliminary injunction on two patents. One is a re-issue granted· to the plaintiff October 22, 1878, No. 8,460, for' an "improvement in waxing paper;" the original patent, No. 193,867, ha"ing been granted to him August 7, 1877. The specification of the re-issue says:
.. The object of this invention is to apply paraffine or other wax to paper, to render the same water-proof. This paper is adapted to confectionery, to prevent the adhesion of articles, one to another, or to the paper, and the paper may also be used in wrapping butter, cheese, cutlery, and other articles requiring a water-proof protection. My improyement relates to a means for heating the wax, applying it to the paper, spreading or diffusing the wax into the paper, removing surplus wax, and then polishing the surfar.e prior to winding the paper upon a reel. In the drawing, figure 1 is a plan view, and figure 2 is a longitudinal section of the apparatus employed by me. The cylinders, a, h, c, are hollow, ** '' Each cylinder is supplied with steam to heat the same to the desired temperature, as in a calendering machine. '' .. ot Thete is a trough, n, beneath the cylinder, a, into which paraffine or other wax is introduced, and the proximity of the rollers, a, h, to this trough insures the melting of such wax, and the surface of the cylinder, a, takes up a layer of wax and applies it to the web of paper, 8, that is drawn off the reel t and wound upon the reel w. The scraper, x, is applied to the cylinder, a, between the wax trough and the place of contact with the paper, to r(lmove surplus wax, and only allow a uniform layer of wax to adhere to the heated cylinder, a. The paper passes beneath the heated cylinder, h, with the plain surface of the paper next to the heated cylinller. This serves to heat the paper, and melt and diffuse the wax throughout the fabric of the paper, so as to render it thoroughly water-proof. The paper now is drawn over the stationary scraper, l, to remove any surplus paraffine, and then it is brought over the heated cylinder, c, with the waxed surface i,n contact therewith. By this cylinder, c, the paraffine is again fused and spread into and upon the surface of the paper. t.hereby ironing and
586
FEDERAL REPORTER.
smoothing the wax, and giving to the same a polished and uniform appearance, and the surface of the heated cylinder, c, by preference, travels in the opposite direction to the paper with which it comes into contact. The paper prepared in this manner is saturated and rendered transparent; or nearly so, by the action of the wax, and it is a new "article of manufacture adapted to various uses in the arts as aforesaid."
The claims are as follows: "(I) In a machine for applying wax to the surface of paper, a heated cylinder revolved within the trough containing the wax, and acting to heat· the wax and apply a layer to a web of paper, substantially as set forth. (2) The method herein specified of applying wax to the sur· face of paper, consisting in transferring the melted wax from a trough . to the. paper by a roller, moving the paper in contact with such roller, and removing the surplus wax by a scraper, substantially as set forth. (3' In'a machine for applying wax to the surface of paper, the heated cylinders, a and h, in combination with the trough, n, alid scraper, l, and; means for supplying paper, Whereby the heated wax is applied to one surface of the web of paper by the roller, a, and afterwards the paper is heated at the other surface, to draw the wax into the paper, substantially as set forth. (4) The heated cylinders, a, h, c, in combination with the trough, n, the scraper, l, and mechanism for revolving the cylinder, c, in the opposite direction to the movement of the paper with which it is in contact, substantially as set forth. (5) The method herein Bet forth of waxing'paper, consisting in spreading the wax upon the surface, heating the paper from the opposite side, to spread and fuse the wax into the fabric of the .paper, removing the surplus wax, and remelting and polishing the wax upon the paper, substantially as set forth."
There js no dispute as to the manner of the construction of the defendant's machine, in so far as it is alleged to infringe the said re-issue. A lettered drawing of it is furnished, with reference to which the description of it. as given by the plaintiff's expert, is as follows: A indicates a reel containing a web of paper, P, to be coated with wax or paraffine. B', B, are guides, being small wooden rollers, over and under which the paper passes on its way to the machine. 0 is a steamheated cylinder, about 10 inches in diameter, revolving in a trough containing melted wax or paraffine. At one side of said cylinder, extending the whole length thereof, is a wooden bar, Jil, padded with felt, and forcibly held against the cylinder, a, with a constant pressure, and serving to prevent more than a given quantity of wax or paraffine from being carried up to the' paper. Close by, say about six inches therefrom, is a horizontal plate; F, somewhat wider than the paper and about 18 inches long, heated by auumber of steam-pipes, fl, peneath it. This plate, F, has a groove, h, h', in its upper surface; all around its margin, about one and Jue-half or two inches from the edge thereof. One cnd, I, of the plate is
HAMMERSCHLAG V. SCAMONI.
587
set lower than the other, and iii the groove, 11" at that end, are a number of holes (see dotted lines) which allow wax taken oJr the under side of the paper, passing over the platll, to pass through. Upon this heated: plate, F, and receiving heat there;frOll1, are two diffusers, J, J.These ar,e bars of wood covered with thick: felt.'and with cloth over all. They are long enough to reach entirely across the web of paper, and are about four and a half inches wide and two inches thick. Immediately beyond these diffusers is a brush, K, having at each end a trunnion playing in a slot in astandard, there being one standard on each side, and the trunnions permitting the brush to rock or incline. The diffusers, J, are weighted, and they and the brush, E, rest on the paper, and occupy about one-half of the surface of the plate, and serve to hold the paper in close contact witb. the plate. Beyond the further edge of the plate, but not far from it, is a steam-pipe, M, one and one-fourth inches in diameter, reaching entirely across the machine from side to side, the upper surface of which is fiat and dressed smooth for half an inch in width. The 0p!lration of the machine, as given by the plaintiff's expert, is as follows:. The steam is first turned on, and the entire apparatus is properly heated, before commencing to run the paper through. The web of paper OD the reel, .A, passes first over the guide, B 1, and then under the guide, B, and thence, in a slightly upward direction, to, over, and in close con.tact with the surface of the upper side of the steam-heated revolving cylinder, 0, from which the surplus wax has been removed by the bar, E, serving as a scraper. The cylinder, a, which acts to heat the wax in the trough, also takes up. wax and applies it to the under side of the web of paper. The paper then passes to and over the iron plate, F, with the under or waxed surface in contact with said plate. The wax now begins to come through the tIssue of the paper to the upper side thereof, which upper side is next brought in contact with the heated diffusers, J, J, Which, by means of the of their heated· surfaces on that side of the paper on which the wax is not applied, thoroughly incorporate the wax into the substance of the paper. As the paper passes on under the brush, E, that device operates to finish the spreading and equalization of the wax. The paper from under the diffusers, J, J, and the brush, E, and still in close contact with the heated plate, F, is drawn across the marginal groove, h, in the plate, which groove acts as a scraper, and removes any extra wax still remaining and which can be spared, and the paper then passes over so much of the heated plate as is outside of tlie groove. Finally the paper passes over and in contact with the top surface of the heated pipe, M.
It is contended that the defendant's machine infringes claims 1, 2, 3, and 5 of said re-issue. The infringement of claim 5 will be first considered. The theory of the defendant is that the melted paraffine, being very fluid under heat and having great penetrating power, when in contact with the thin, raw, or unsized paper is absorbed almost instantly into its pores by capillary attraction; that the
FEDERAL RErORTER.
inCOl'pOl'ation of the wax into the tissues of the paper is completed at and on the surface of the waxing cylinder, and during the contact of tho paper thel'ewith; that the process of waxing is there finished, and all that remains to be done is to polish the paper and make it merchantable; that the chief expense is the wax, and the use of as little of that as . is possible is secured by means of the pressure of the felted , bar against the waxing cylinder; that the purpose and result of the remaining steps in the defendant's apparatus, after the paper leaves the waxing cylinder, are merely to keep the wax fused so long that the laws of nature shall have time to diffuse the wax throughout the breadth of the paper j. that the passage of the paper. over and in contact with the heated plate, F, serves only to iron the paper ·and give it a smooth Rurface; that the liquid surface cannot be polished in any true sense" while the paper is passIDgover the plate, F j and that the polishing, after the ironing, is due to friction,· In support tpeory the defendant,'a machine was stopped while being operated, and a length"of paper extending throughout the elements of· the process was out out and marked with showing the succe$sive parts of·it corresponding with successsive parts of the This length of paper isproduc.ed. It is claimed that this exhibit shows that' the wax came through the papei and appeared on the opposite surface of it while it was on' the waxing cylinder. In connection with the foregoing views, it is contended for the defendant that the· blocks of wood, J, J, are placed on the paper solely to keep it in contact with the heated plate, F; that they are not heated and do not become hot, but simply warm, and can be handled with perfect comfort; that a small piece of solid paraffine allowed to remain on the side of the weights exposed to the plate did not melt, while a small piece of it placed on the plate melted atmost instantaneously; that, as far as concerns the blocks, J, J, the plate is the source of heat; and that the blocks do not and cannot diffuse heat towards the paper and the plate. In .regard to claim 5 of the re-issue, the defendant contends that he does not heat his paper from the opposite side, and
HAl'dMBRSCHLA'OV.
sonioNI. .
589'
thereby fuse the wax into the fabric of the paper; thatthere is nothing to depress the web of paper below the level of the edge of the groove, h, while it is passing over that edge, and so make a scraping action to remove the surplus wax; that the wax is maintained in a melted state throughout, and so is not remelted; and that the ironing is produced by the friction of the waxed surface against the plate. It is admitted by the defendant, that, while the paper is passing across the heated plate, F, its previously waxed surface is maintained in close contact -with the sutface of the plate by the action of· the weighted bars, J, J, coated with felt, and of the brush. It is plain that the paper, while passing over the waxing cylinder, not only receives wax, but absorbs a given quantity of it. The wax may even Itppear on the opposite surface· of the paper while the paper is still in contact with the cylinder. But it is impossible to believe that the subsequent use of the heated plate, the weighted bars, the brush, the groove in the plate, and ·theheated steampipe, is not because thereby the wax isthoroughlyincorporated into and diffused throughout the body of the the fabric made Even if it be necessary that the wax should be maintained in a melted state to be ironed.' or smoothed, yet, in this very operation, by the heat which is maintained as the paper passes under the weighted blocks. and the brush, in close contact with the plate, .the- therough diffusion or incorporation of the melted wax into the fabric of the paper is secured. This heat is thus maintained so as to secure the thorough heating of the unwaxed surface of the paper, and so allow the wax to follow the pores to and throughout that surface, from the waxed surface and through the body, and become a uniform body of wax in all the paper. To say that the heated plate keeps the wax fused only 80 as to allow the laws of nature to diffnse the wax thronghout the breadth of the paper, is only to concede the infringe. mente In all machinery, the arrangement of it is designed to secure the operation of laws whose operation is certain to follow such arrangement of it,and those certain laws are the laws of nature; and it is because those known laws are cer.
I
'I
,
590,
REPORTER.
tain to follow such arrangement, that the arrangement is made. The arrangement is none the less au invention because it brings into operation the laws of.nature. It is true that claim 5 speaks of heating the paper from the opposite side, to spread and fuse the wax into the fabric of the paper; and that., in the plaintiff's patent, the unwaxed surface of the paper is next to the heated cylinder, b, while in the defendant's apparatus the waxed surface is next to the heated plate. But the plaintiff's specification shows, and the fact is plain, that the object of the maintaining of the heat is to maintain it at the unwaxed surface of the paper, so I1S to lu-aw the wax from the .waxed surface through the body to the unwaxed suritce, by reason of its melted condition and of the absorbing character of the paper. This is expressed in claim 3, where it is said, that, after the heated wax is Itpplied to one surface of the paper, the paper is heated at the other surface, to draw the wax into the paper. That is the operation, and the defendant's machine performs it by Bubstantially the same means, although in that machine the waxed surface of the paper is placed next the heated plate, because theall'angement of plate, paper, weighted bars, and brush is such as to heat the paper at its unwaxed surface, and thus keep the wax melted and secure its incor. poration and diffusion in the same way and to the same extent secured by the plaintiff. Claim {) is for a process, not for machinery. It is a claim to an art, consisting of successive steps, which result in waxing the paper. The steps specified in claim 5 are four in nl1mber. All those four steps are practiced by the ,defendant in Bubstantially the same way and the same order as by the plaintiff. The raw paper is moved over and in contact with asteam·heated cylinder which acts to spread the wax on the surface of the paper. This is step one of the plaintiff. In the passage of the paper over the plate and under the bars, J, J, the action is such as to heat the llnwaxed surface of the paper where it is closely pressed by the bars at the place of contact between the bars and such unwaxed surface, and keep the wax melted and thua draw and spread and fnse it into the fabric of the paper
591
between the waxed surface and the unwaxed surface, and on . the latter. This is step two of the plaintiff. The dra.wing of the paper, after it leaves the brush, across the groove in the plate, allows any surplus wax to drop into the groove from the waxed surface. This is step three of the plaintiff. The drawing of the waxed surface in contact with the heated plate beyond the groove and then in contact with the pipe, M, keeps the wax in such a melted state that the waxed surface of the paper is polished. This is step four of the plaintiff. As to claim 3, that also is infringed. The heated cylinder, 0, corresponds to the plaintiff's heated cylinder, a. The troughs in the two correspond. The bars, J, J, acting with the heated plate, F, correspond to the plaintiff's cylinder, b. The groove corresponds to the plaintiff's scraper, l. There are means for supplying paper. The heated wax is applied to one surface of the web of paper by the heated cylinder, 0, and afterwards the paper is heated at the other surface, to draw the wax into the paper, by the action of the' bars, J, J, in conjunction with the heated plate, F. Claim 2 is infringed. The melted wax 'is transferred from a trough to the paper by a roller, which is a hollow, heated cylinder. The paper is moved in contact with suchroiler, and the surplus wax is removed by a scrap·er. The' scraper intended by the claim is the scraper x, the office of which is stated to be to remove the 'surplus wax andio allow only a uniform layer of wax to adhere to the cylinder, with a view to having the cylinder apply such layer to the paper. The scraper spokeno! in the claim isa scraper used to perform part of the process of applying the waX. to the paper, in its initial application. It is, therefore, the scraper x; but even if it were the scraped, the groove in the plate, F, corresponds to that scraper. Claim 1 is infringed, because there is a heated cylinder revolved within a trough containingwax,and acting to heat the wax and apply a layer of it to the we'b of paper. The defendant's expert refers to the folloWing prior pat' ,
599
English patent No. 10,774, to Thomas R. WillIams, dated July 21, 1845, specification enrolled January 20, 1846; what he calls" British letters patent No. 55, of 1862, to John Stenhouse," a copy of which is not furnished; United States patent No. 97,893, granted December 14, 1869, to Oheney and Milliken, assignees of John Stenhouse, and patented in January' 8, 1862; English patent No. 5,849, to Thomas Oobb, ti'ated September 15, 1829, specification enrolled March 15, 1830; and l,Tnited States patent No. 157,068, granted November 24, 1874, to Richard J. Edwards.
But the only statement made in reference to those patents as affecting claims 2, 3, and 5, of re-issue No. 8,460, is that the plaintiff's scraper, x, is old and is shown in those patents. In regard to claim 1, the statement is that "the device" is old anti is shown in those patents. No reasons are given. What it is in those patents that is referred to is not pointed out. The scraper,,x, is not claimed by the plaintiff by itself. It is not asserted that' either claim 2 or claim 3 or claim 5 is shown or described in any of those patents. The burden is on the defendant to make out anticipation. The plaintiff's expert states that he does not find claim 1 or 2 or 3 or 5 in the Williams' patent, No. 10,774, and he gives his reasons. He examines an English patent, No. 1,379, granted to one Edwards in 1812, (which is understood to show what is shown in the United States Edwards' patent, No. 157,068,) and says that it does not anticip!!,te claim 1 or 2 or 3 or 5, and he gives his reasons. He also alludes to the Cobb patent, and says that it is for making roofing, and to the Stenhouse patent, No. 97,893, and says that it shows no machine at all. He also says that neither Stenhouse, nor Cobb, nor Edwards, shows a heated cylinder acting to heat wax and to apply the wax to paper preparatory to the subsequent drawing of the wax into the paper. Certain it is that no patent referred to by the defendant's expert affects claims 2, 3, or 5, and claim 1 must stand, so far as this motion is con· cerned. It is quite clear, from the history of the article made by the plaintiff's machine and process, that that article was not capable of being made by any machine or mechllonical process before ,made' known. The article existed before and was a.. very desirable article, but it was made by hand and was too
598
expensive for general use. The plaintiff, being in the business of making paraffine or wax candles, had his attention di· rected to waxed paper, then made by hand. It was the first time he had seen it. He was told that it was made by hand, and was too expensive for general use, and that it would be a good thing to get up a cheaper method of making it. He immediately began experiments which resulted in the machine and the process which he patented by his original patent No. 193,867. He was the first person who ever made waxed paper by machinery, or in a continuous web. The total amount beforemade by hand was less than 100 reams a year, aUd it sold for four dollars a ream, and was of inferior quality to that made by the machine. M'aking it cheaper and of better quality has caused it to be applied to many new uses, and in fact created a new branch of industry. The sale now is 100,. 000 reams a year, the plaintiff has reduced the price to one dollar a ream, and infringers have sold it at 60 cents a ream. The plaintiff's rights have been generally respected, but he has sued infringers and stopped some by suit and otherwise. Under all these circumstances, his patent being a pioneer and a foundation patent, both as to process and to machine, is not to be construed as confined to specific details, if fairly admitting of the liberal construction which such a patent is entitled to. It does admit of the construction which has been given to it, and it is entitled to that construction. The other patent sued on is No. 209,393, granted to the plaintiff October 29, 1878, for an "improvement in waxing paper." The specification says that the invention is an improvement on No. 193,867, and that "a reference is hereby made to the same for a description of the construction and operation of the parts, except so far as the present features of improvement." The cylinders, a and b, and the trough, n, are the same in the drawings of No. 209,393, as in the draw.. ings of re-issue No. 8,460. The specification says: "The roller or cylinder, a, revolving in the trough, n, is heated by steam introduced into the interior or otherwise, and the cylinder a is located in relation to the cylinder b, and roll of paper, in such a manner that the roll of paper is in contact with its periphery for a space of two or three inches (more or less) in width, aDd the speed of the paper is different to that
v.7,no.5-38
594:
FEDERAL:REPORTER.
of the surface oiroller, a, in order that, where the paper moves faster than the· surface of the roller, a, the roller, a, will spread the paraffine wax in a thin layer upon the paper, because the heated wax is maintained in a fiuidcondition by the heat of the roller, and the thickness of the layer of wax On the paper to that on the cylinder will be in proportion to the relative speed of the paper and the roller, a, and, if the wax is to be applied in greater quantities, the surface speed of the roller, a, is increased so as to be greater than that of the roll of paper, and a thicker layer of wax is applied to the sheet of paper."
Claims 1 and 2, which are those here concerned, are as follows: "(1) The method herein specified, of waxing paper, consisting in drawing the paper over the surface of a cylinder coated with melted wax at a speed different to the movement of the surface of the cylinder, so as to regulate the thickness of the layer of wax by the relative speed of the paper to that of the surface of the waxed cylinder, substantially as set forth. (2) The combination, in a machine for waxing paper, of a trough for the wax, a heated cylinder for transferring the wax to the paper, and mechanism for moving the waxing cylinder at a different speed of surface from that of the paper with which it is in contact, substantially as specified." .
The plaintiff's expert, in an affidavit made by him Janumachine before deary 3, 1881, states that the scribed, and which the expert says he inspected in operation, in the presence of the defendant, on November 27, 1880, "l3ontains mechanism for so moving the paper with reference to the cylinder,"-that is, as described in No. 209,393,"and moves it at a faster speed than the cylinder;" and that, therefore, it contains the subject-matter of claims 1 and 2 of No. 209,393. In another affidavit made by the same expert, on the same day, he says: "The machine of defendant I saw in operation at his factory making waxed paper, contains the differentiation of speed claimed by complainant as aforesaid, and contains mechanism therefor, and for producing waxed paper thereby, including the scraper for removing surplus wax from the cylinder:"
. The defendant, in an affidavit made January 14:, 1881, quotes what the plaintiff's expert says, as above, in his first affidavit, and states that that part of said affidavit in which said expert so states "is not true," and that, "as a' matter of fact, in the defendant's machine both the webof paper and the waxing cylinder are rnn at the same rate of speed." This
HAMMERSCHLAG V. SCAMONr.
595
is hardly a denial that, on November 27, 1880, the machine contained the mechanism stated, or that the expert, on that day, saw the paper moving in the machine at a faster speed than the cylinder, as claimed plaintiff's patent. The defendant's expert states that the mechanism referred to is shown in the Williams patent, before mentioned, No. 10,774; and in the English provisional specification of Alexander Robertson, No. 2,315, filed October 16, 1858; and in English letters patent to Stanislas T. M. Sorel, No. 1,440, of 1855; and in English letters patent to John Dickinson, No. 4,152, of 1817. No copy of the Sorel patent or of the Dickinson patent has been furnished to me. The expert does not state what it is he· refers to in anyone of the four patents. The plaintiff's expert says that Williams does not refer to the subject. He does not allude to Robertson or Sorel. He examines the Dickinson specification at length, and says that it shows that the differentiation of speed was known to Dickinson in the operation of sizing paper, but that the plaintiff's scraper, :c, is wanting in Dickinson; that without that scraper it is not possible to utilize the variation of speed in waxing paper; that the scraper removes from the cylinder the greater proportion of the wax taken up by it from the trough; that the method of reducing, by the differentiation of speed, the amount of wax to be deposited on the paper, is a method added to the method of reducing such amount by means of the scraper; that the scraper, though not referred to by name in the text of No. 209,393, is clearly shown in the drawing; that the language of the text in regard to No. 193,867, and the reference thereto "for a description of the construction and operation of the parts, except so far as the present features of improvement," is a substantial incorporation of the new improvement upon the former one; that the specification of No. 193,867 fully describes the scraper, X; that, taking the two patents together, the one as an improvement bn the other, the scraper is an essential part of the mechanism, and its operation is part of the method named in claim 1 of No. 209,393; and that, therefore, Dickinson does not contain plaintiff's invention, as se-
596
cured by claims 1 and .2 of No. 209,398. Claim 1 is to a method, and claim 2 is to a combination of machinery. The plaintiff's expert says that Dickinson does not, in his drawings, show any machinery for effecting the differentiation of speed, but simply says that it might be done; yet that, if the machinery he does show was adapted to waxing paper by merely substituting wax for size, the description in Dickinson would be sufficient without drawings. The specification of No. 198,867 is not furnished to me, but I assume that it states what is found in the specification of re-issue No. 8,460, which is that "the scraper, x, is applied to the cylinder, a, between the wax trough and the place of contact with the paper to remove surplus wax and only allow a uniform layer of wax to adhere to the heated cylinder, a." Taking the description in No. 209,393 as if the description in No. 193,867 were incorporated in it, as it. must be, and assuming that the latter describes the scraper, x,in the above terms, "the cylinder coated with melted wax," in claim 1 of No. 209,393, must be understood as meaning a cylinder coated "substantially as set· forth;" that is, with wax of the thickness and uniformity left after applying the scraper, x. In the view, the expressions in claim 2, "a heated cylinderior transferring the wax to the paper" and "the waxing cylinder," must be understood as meaning a cylinder "substantiallyas specified;" that is,not only a cylinder .coated with melted wax, but a cylinder coated with wax of the thickness and uniformity of the coat of wax with whioh the oylinder in the description would be ooated, namely, the coat left after using the desoribed scraper, x. This is the proper construction of the two claims, and under it neither the Dickinson patent nor any other patent, so far as it appears, antioipates the claims; and, as the defendant used the soraper, x, in oonnection with the differentiation of speed, he must be held to have infringed the olaims. An injunction is granted on olaims 1, 2, 3, and 5 of re-issue No. 8,460, and on olaims 1 and 2 of No. 209,398.
JOHNSON V. BLANOHARD.
6111
JOHNSON
BLANCHARD
and others. February 18,1881.)
(DutNa C011rt, S.D. New York.
Where the libellant overstayed his leave of absence on shore in a foreign port, and the ship left him and returned to New York, after waiting for him, at an increased expense, beyond the time when the libellant knew she was to sail, and six years after wages were claimed for the whole voyage back to New York, and $145 for personal effects left on board, the libellant alleging that he did not exceed his leave of absence, and that the vessel sailed without notice to him: Held, on the evidence, that the libellant went ashore on leave of a1.Jsencefor one hour only, a.nd so understood it j that he was left by the vessel his own fault, and is not entitled to wages for the rest of the voyage; that his lac·hes in not sooner making his claim known creates a strong presumotion that he knew he was not entitled to such wages; FurtMr held, that not having been treated as a deserter he could recover $11.09 for unpaid wages up to the time when he left, and t4 proceeds received by the vessel for his clothing j that having, hi addi. tion to a small claim for wages, claimed a large sum to which he was. not entitled, costs would be refused to the libellant. The Loui8iana, . 4 FED. REP. 751, and cases cited.
In Admiralty. J. J. Maclin, for libellant. J. A. Deady, for defendant. CHOATE, D. J. This is a suit in personam for wages against the owners of the bark American Lloyd's. '.
The libellant shipped in New York in July, 1874, on a voyage to Stet. tin and back to New York, as second mate. The libel alleges that while the vessel was in the port of Stettin, with the permission of the master, he went ashore at about 6 o'clock in the evening, to return the next morn. ing, and that while he was so absent on leave, and without notice to him, the vessel left the port, taking all his clothing and personal effects, ar. riving in New York about November 15,1874 j that the libellant, being left entirely destitute, was obliged to seek other employment, and only arrived in New York within a few days before filing his libel, which was on the seventh day of June, 1880. The libellant claims four months' wages up to the return of the vessel to New York, amounting to $150; and also, for his clothing and personal effects, $145. The defence is that the libellant was allowed to go ashore for an hour; that he knew the vessel was expected to sail the next morning at 4 o'clock; that the vessel was ready to sail at that time, but the master waited for the libellant, who had