CALIFORNIA. ARTIFICIAL STONE PAVnW CO. V. PERINE.
823
both cases theta ",lis cutting at the joints bymeansXlf a trowel during the process of formation. "The testimony of Molitor in his case, it is true, is directly to the cdntrary, yet his testimony is somewhat impea{jhed, and lam disposed to think that it should be taken with some grains of allowance."I think,by a careful study of the testimony of Schalike alona,'who is Molitor's foreman and one of his principal witnesses, it is apparent that they did do cutting with the trowel. He superintended the construction of the pavement whicb was laid.in alleged infringement of the complainant's patent; and he admits .that tbere was cutting. Although he once or twice. states tbatthere was no useof the trowel for cutting, yet, under cross-examination, by complainant'.s counsel,be s8lYs be cannot tell whe,ther.it i\Vascut through or'not; eannot tell how deep be cut; is at a loss. to.tell was dona Hdhat regard. Still, taking his whole testimoIl-ytogether, itis manifest ·therefrom that he did cut with a trowel. . ,7;' 'l". . There are some other witnesses, it is true, whose ,testimony gQes t08upport that of Molitor; but, on the other hand,th-e complainant's witnesses positively and distinctly contradict them." Several of these witnesses of oomplainant appear to be men of. capable of observing, some of them having :had experience in the same business; a::nd ,they all visited the place where the respondent's pavement was being laid, expressly to observe the manner ill which the work was done, and examined it under auch ci,rcumstances as would be likely to impress upon their minds the .respondent's ,IDod,e of operation and construction." They would not be likelyt9,be mis,taken, and if they misstate the facts they must be wilfully.at fau}t; and they all testify there was cutting in the joints during the process of formation. the testimony of th,ese witnesses and of Schalike, and from an examination of the stones which were afterwards taken up from respondent's'pavements, referred to sented in evidence, lam satisfied there was' such cutting in ,the Molitor pavement, as well as in that laid. by Perine. ,,' , The process of laying the pavements in question is One section having.been formed, a scantling ,or moqld, is laid down parallel with the edge of the, completed section, and, at distance of the desired width of the blocks; and the bottom course material is put in, to the depth of about three inches, tamped, do.yn solid, its thickness' being reduced by the tamping about half 'an :ine).l. That being allowed to partially set, a trowel is afterwards; used, to -cut out the blocks into the proper lengths,the ,the trowel "being toa or ;lessdepth, according
824:
FEDERAL REPORTER.
material along the .line of the cut, in some portions the cut being, doubtless, through the concrete; while in nther portions, where stones are encountered in the gravel so large as to interfere with the trowel, the incision may be of less or even little depth. This makes a joint so tamped solid, and into the open joint in the partially set thus made, when the concrete. is partially set, is floated or rubbed in some of the same material of which .the block is composed. Then the top layer or surface, composed of finer material and containing more cement, is laid on, pressed down, and smoothed over. The trowel is then run through on the same line of the joints, directly over the ciltting 'below, and probably, asa general proposition, passes through the top layer, although I am not c3rtain whether or not that is ;always the case. Parting strips are used, by Molitor, but their purpose i8simply to keep the different colors on adjoining blooks from blending. After the top or surface layer is cut with the trowel, the cuts or joints are again smoothed or floated over, and a joint marker (the tongue of which is testified by some of the witnesses to be onesixteenth: of an inch in depth, and, by others to be one-eighth of an inoh in depth) is run over the line of the joints, marking off the block. The block is thus finished. Now, this Schillinger patent is evidently a valuable patent. Schillinger was the first man who ever made pavements of this character. Immediately after its discovery it went rapidly into very general use, and other parties began to infringe. The first infringers, as Judge Blatchford states, cut joints and filled them in with pitch or asphaltum. In the specification of the Schillinger patent the inventor sets forth: "With the joints of this sectional concrete pavement are combined strips of tar paper or equivalent material, arranged hetween the several blocks or sections in such a manner as to produce a suitable tight joint, and allow the blocks to .a.e raised separately without affecting the blocks adjacent thereto."
By Judge Blatchford it was held that the pitch or asphaltum, which was filled into the cuts along the joints, effected the same purpose as, and was 'the equivalent of, the tar paper. Infringers then tried various ingenious methods of evading the patent. The next course adopted was the filling -of the cuts or joints by pouring in cement, which is one of the component parts of the material of which the pavement is formed, in the same way that the pitch or asphaltum had been used This was held to be an equivalent of the tar paper, and an infringement. Then it was held that it was not necessary that there should be any material permanently interposed in the cuts or joints, but that if
CALIFORNIA ARTIFICIAL STONE PAVING CO. V. PERINE.
825
the joints wel'e made during the process of formation by in,serting the trowel or other instrument, cutting a joint substantially as was done in this case, then the complainant's patent was infringed. It is something very like the infringements just described that the respondents in these cases have been doing-filling in the cuts with concrete composed of cement and fine gravel in equal parts, instead of with pitch, asphaltum, or cement. In the laying of this pavement by these respondents, the first course of coarser material, being tamped down solid and allowed to partially set, is then in a solid condition j is compact; and when the trowel is run through it makes an open joint to the ,extent to which it cuts. Now, instead of pouring pitch, tar, asphaltum, or cement into the open joint thus'made, the respondent, in each of these cases, simply takes an instrument called a float, and smooths over and into the cut the material on the top which has partially set, and which is composed partly of cement and partly of gravel j that is to say, the same material of which the layer of the block is composed. This material does not connect the adjoining blocks so perfectly as cement would, because the cement would bind them together more strongly; and this composite material is not tamped in, but goes in loosely, and the material in the joint is therefore in a very different condition from the like material which is tamped down in' the body of the blocks. It is floated loosely into the joint when the material of the block has partially set, so that it is in a different state of consistency, not likely to attach itself firmly to, and be solid with, the adjoining material in the blocks, The material in the joint, therefore, is not homogeneous with the material composing the blocks; its structure is different; it is less compact j looser in its texture; it is less adhesive; it is less permanent; it has "'ntered the opening in a different state of consistency; it is different in its chemical structure, the material having partially set j it is matter interposed in the joint made in the process of formation j and I do not see why it does not answer the purpose of cement, 'or asphaltum, or pitch, or of the tar paper. Th'lro is an open joint made by the trowel in the process of formation, and it is filled by the substance interposed, which does not adhere so firmly but that the pavement is much weaker along the line of the joint than in any other place. Although this interposed substance may, in some degree, adhere to the edges of the adjoining blocks, the respondents get, to some extent, at least, the benefit referred to, and the further benefit of controlling the cracking frOID thu -concrete composing the pavement.
82G
One of the great objections to:,the solid concrete pavements made before Schillinger's invention was, that it cracked irregularly, and one of the chief advantages of his,invention, as shown by the testimonyin these cases, is that the openings resulting from shrinkage come along the line of the joints,and the blocks themselves do not crack, although that advantage, is not set forth in the patent. In the pavements constructed by the respondents this result has been ittt9;ined; and it has been admitted .bythe respondents in one case in this court, in which the Schillinger patent has been ih question, th6ttheobject of running the trowelthrough at the j,Dints was to sO' weaken the pavement along these lines as to control the cracking, and leave'the blocks; as marked off, unbroken. This is clearly an infringement,for the patentee, is entitled to all the benefits which result from his invention, whether: he has specified all the benefits or not. So, in: heaving from frost, and in taking UI> the pavement" the breakage w:ould be likely to be slong the same line. The conclusion at which I have arrived, from an examination of all, the evidence in these cases, iil, then, that, in the pavements ,by the respondents in each of these cases there are open joints made between the blocks during the process of formation, into which is· interposed material which remains there permanently; and the view that I take of it is that that material is, in some degree, the equivalent of the tar paper,and gives; to some considerable extent, at least, the advantages olthe Schillinger invention. In my judgment, based upon the testimony and my own observation of the specimens of blocks exhibited in the case, the respondent's pavements thus made are not equal to the Schillinger pavement; but then the respondents make pavements which are practical pavements, in which the cracking resulting from shrinkage is controlled by the joints made in the process of formation, and in which, to some extent, the blocks can be removed without injury to the adjoining blocks, although not so completely as in the case of the Schillinger pavement. The respondents construct practical pavements, which can be made cheaper than that made under,the Schillinger patent, having, to some extent, the same advantages, obtained by substantially the same means, and therefore come in competition with the complainant, and to a considerable extent supersed,e his patented pavement. Therefore, even under the construction which I haveheretofore given to this patent, although narrower than that which has been given by the eminent judges whom I have named, I think o 0 0
CALIFORNIA
1>AVING CO. V. PERINE.
S21
these pavements, laid by both Perine and Molitor, are intrlllgements upon the Schillinger patent. There may be some advantage in the beveled joints claimed to be used by Molitor; but, if so, his pavement still embrac.es the Schil" linger invention, if my view is correct, and he is, therefore, an infringer. In the Molitor pavement, a. portion of which was taken up and some of the blocks introduced as exhibits, tlie thickness ·ofthe upper course of, fine.material is not more than half an inch, and that contains nearly all the strength of the block, for the lower course of material in these is of suchan inferior character .that it can be cnlmbled to pieces by rubbing with the fingers. Yet even this is weakened by the cutting of the joints with a trowel, as before described. If, then,the lower Murse is of such. a crumbling character, Jeither on account of not contltininga sufficient quantity of cement, or because of not being properly tamped, and there is no cutting of the joints in that upper course with the trowel, the mere marking of that top layer to the extent which the marker goes in would probably control the crll,cking. If the tongue of the marker will cut the upper layer to a depth of one-eighth or even one-sixteenth of an inch, then the entire thickness of that upper layer being but half an inch, it is probable that that incisiOn would be sufficient to control the cracking of that upper layer; and, as that layer is the most substantial part of the block, that marking might, and probably would, be sufficient to control the cracking of the entire block. In my view, therefore, the respondents in these two cases, Perine and Molitor, have both so constructed their pavements as to gain the advantages secured to the complainant by the Schillinger patent, and bysubstsntially the same means; and they are, therefore, infringers of that patent. In both these cases· the preliminary injunctions heretofore issued will be continued in force, and a decree entered for complainant in accordance with the views expressed.
828
DDE1U.LBEPOBTEB.
RoBINSON 11. SUTTER.-
(C'irlJUie Court, N. D. IUinois.
1881.)
1.
PATENT No. 216,293-APPARATUS FOR RESWEATlNa TOBAcco-NoVELTV-VA-
Letters patent No. 216,293, granted June 10, 1879, to Abraham Robinson, for apparatus for resweating tobacco, held, not 'loid fl7l' want of nofJ8lty by reason of letters patent No. 152,004, granted June 16, 1874, to Edmund J. Oppelt, for apparatus for coloring tobacco leaves, and letters patent No. 206,156, granted .Tuly 16, 1878, to Ernst Wenderotb,for process andappartitus for coloring tobacco leaves, held, also, to be valid, and infringed. 2. TIGHT"
The term "tight," used in complainant's claim to qualify the construction of the;inner chamber or tbbacco holder, construed to mean sufficiently tiglit to Ilubserve the purposes of the invention. Slight crevices or openings, arising from defective mechanical construction, if not large ellJ)ugh to admit steam in such quantity or volume as to wet the tobacco and defeat the operation of the apparatus, will not violate such rule of construction, nor relieve such apparatus from the charge of infringement. .
8.
SAME-SAME-OPPELT AND WENDEROTH DEVICES-NoVELTY-lNFRINGEMENT.
Complainant's invention, consisting of an apparatus for resweating tobacco by packing the leaves closely in a wooden box or tub, made substantially tight, except so far as the pores of the wood permit vapor or moisture to slOWly percolate through the wood and diffuse itself with the mass of leaves, from a body of warm water and expanded steam contained in an outer tank or chamber surrounding such box, the heat being suppliC(! by an external generatol" held, not in'lalidated,fl7l' want of novelty, by the pi'ii>rOppelt and Wenderoth devices, consisting of metallic tanks and metallic tobacco holders within them, into which steam is directly admitted, by which the tobacco becomes wet, and, to a limited extent, cooked j and infringed by.defendant's device, having 8 similar outer tank, supplied with water heated by a similar external generator, but no specifie, permanent inner chamber or tobacco holder, sufficien tly tight to exclude moisture except through its pores; but using instead thereof the Ol'iginal case in which the leaf tobacco comes
}rlunday, Ev.arts tt Adcock, for com.plainant. Banning tt Banning and Adolph kloses, for defendant. BLODGETT, D. J. This is a suit for infringement of letters patent granted by the United States to complainant, Abraham Robinson, on the tenth of June, 1879, for an improved apparatuB for resweating tobacco. The defence set up is-First, that defendant. does not infringe complainant's patent; second, that complainant's patent is void for want of novelty. It seems from the proof that, in the manipulation of tobacco, it is deemed very desirable to obtain a dark uniform color in the leaf, especially of that to be used for cigar wrappers; that in the natural sweating which the leaf undergoes in the ordinary process of curing, it is left spotted, or some letne,:; will bli
eRev"l'oed. See 7 Sup. Cl.
3.6.