BRAINARD V. CBAlIIME.
621
As before shown, Blake's machine patent exhibited both the shoe of his product patent and mode of construction of his process patent, to which he was no more lawfully entitled than Norton was to his second patent for what was exhibited in the first. It is conceded in defendants' brief that there should be a decree for an account of license fees against Jackman. Let decree be entered for an account of license fees in the case against Jackman, and dismissing the bill as to the residue, and dismissing the bills, with costs, in the other cases.
BRAINARD
v. CRAMME. 1882.)
((Jlrouit Cowrt, N. D. New York.
1.
P,\TENTB FOR lNvENTIONS-REISIlUE.
Where a process patent was claimed in the reissue, and everything essential to the process was pointed out in the original patent nine years before the reissue. and in the mean time other inventlJrs have occupied the ground covered by the general subject-matter of the invention, what was therein pointed out and not claimed is to be deemed abandoned to the public. 2. CLAIMS IN REISBUJ!I-CONSTRUCTION-RULE OF. Where claims in the reissue relatmg to the apparatus, conSidered literally, are
broader than the claims in the original, describing the functions rather than the mechanism, they are tobe construed with reference to the specification, and so, if consistent with the language used, as to secure to the patentee the invention which is described, but not sO as to embr.ace any invention broa<Jer in its scope than that in the original invention.
3.
WRINGING PATENT.
The patent of defendant may be valid, and possibly bis mechanism is an improvement on complainant's; but this will not protect him from lihe charge of :'" infringement;
622
FEDERAL
rectangular supported on legs. The cylinder is made with open staves, or perforated sides, and is suspended horizontally in the frame in So hollow shaft. The shaft extends through the cylinder, and is perforated with a series of holes on all sides. One end of the hollow shaft is fitted to run in a thimble, on which is screwed a pipe for conveying water into the shaft; the other end of the shaft is closed, and carries a crank. The cylinder has a removable cover. In operation, the shavings to be washed are put into the cylinder, the coveds fastened, and the shaft is revolved by turning the crank; the cylinder rotates upon the shaft, and the current of water introduced into the perforated shaft is discharged in jets upon the shavings as their surfaces are presented by the revolution of the cylinder. The dirty water escapes through the openings of the cylinder at its lower side. The patentee states in his description that cylindrical washing-machines are in use, and he disclaims tl,ie same as his invention. The first claim is "a hollow perforated shaft, in combination with the cylinder, and the frame arranged and operating substantially in the manner and for the purpose The reissued letters beat date February 26, 1878, and herein the patentee attempts to secure to himself both a process and the apparatus for carrying out the process for washing breweries. The apparatus is described substantially as in the original patent, except that in the original the cylinder is described as suspended horizontally upon the hollow shaft andl:l.s rotating by the revolution of the shaft, is not stated to be suspended horwhile in the reissue the izontally, but so constructed as to admit of a rotating or reciprocating action. Considerable new matter, however, descriptive of the process is introduced. Two of the claims relate to the process. The third and fourth'relate to"the apparatus, and are as follows: "Third.. of a vessel capable of rotation on its axis with jets of water within it, substantially as described. . .sel capable of rotation on its axis in combination with a '. 'prodtieing jets of water within such vessel, sub-
4e80nOO<1." & It,t " the reissue is an;atteInpt to secUre to the patentee th& treatment of brewe:ts' shavings, it is entirely inoperatiYeL'.Jfbe process as described and claimed therein is merely for of the shaving&by the employment of the described the 8pPMl'tus. !tis difficult to!d.ppreciate any practical benefit which is obtained by the pattintee by caliing his patent a process patent instead of one for the ma<lhine; and it is conceded that aseverything essen-
BRAINARD V. CRAMME .
623
. tial to the process was pointed out in the original patent nine years before the reissue, and in the mean time otherinventors have occupied the ground covered by the general subject-matter of the invention, what was therein pointed out and not claimed is to be deemed abandoned to the public, within the recent decisions relative to reissues. As to the claims for the process the complainant proposes to file a disclaimer. The claims in the reissue relating to the apparatus, considered lit. .erally, are broader than the claim in the original. Indeed, they describe the functions rather than the mechanism of the apparatns. But they are to be construed with reference to the specification, and so, if con· sistent with the language used, as to secure the patentee the inven· tion which is described. They are not to be construed, if the Ian· guage will reasonably bear snch an interpretation, so as to embrace any invention broader in its scope than that in the original patent. In view of the state of the art, and of the apparatus described in the original patent and shown in the drawings, the patent was for a new combination of old parts, which consisted in locating the hollow perforated shaft within a hollow cylinder having openings in its sides and suspended horizontally in a frame, so that cylinder and shaft ,rotate together by turning the crank of the shaft. The gist of the invention was in the adaptation of the several parts for the specific purpose described. The peculiar materials to be washed required special instrumentalities. A machine for cleaning rags, containing a revolving horizontal cylinder mounted on hollow axles, through which water can be conveyed to the contents of the cylinder .and can escape through perforated plates at the end, is shown in the English patent to Fondriner of1834. Bntin this patent theta is not shown a hollow shaft running into the cylinder to discharge jets of water upon the contents of the cylinder. A machine for forcing liquids into the contents of a vessel capable 'of rotation on its axis through a perforated vertical shaft, is shown in the English patent to Givine in 1851. But the contents are plitoed in cages of wire gauze, and the vessel itself is tight. Theaetwo English patents present the nearest approximation in the prior <{)f the art to the present. They are not anticipations; neither-col them would do the work satisfactorily required of a machine for wash. ing br..ewers' shavings. There can be no doubt that it required thought and inventive faculty to organize the distinctive features of these prior inventions into the present mechanism so as to adopt them to ;the special work to be done.
624
rEDERAL REPORTER.
Reverting now to the claims of the reissue relating to the appara· ' tus, the doubt which they suggest is whether they are not to be con· strued as so broad as to embrace a cylinder which is not horizontally suspended, and which is not rotated by means of the hollow shaft. The vessel capable of rotation on its axis and the perforated pipe for producing jets of water within such vessel are clearly referable to the cylinder and the shaft described in the specification, but the doubt is whether the 'specification in the reissue does not describe a cylinder which need not be horizontally suspended, and which will admit of a reciprocating as well as a rotating action upon the shaft. Considered in its entirety, it would seem from the specification thali the llorizontal cylinder is indispensable to the efficiency of the mechanism, and there is nothing in the description which refers to any means for conveying reciprocating Mtion to the cylinder. In the absence of anything in the proofs to indicate any reason for an expansion of the claim, and in view of the apparent necessity of employing a oylinder which is suspended horizontally and is rotated by the shaft,the conclusion is reached that the fourth claim of the reissue can be sustained as substantially identical with the first claim of the original patent. The defendant has appropriated the invention thus secured to the complainant, and it may be that the desire to protect the complain. ant against the piracy of his invention has led to undue liberality in the construction of the reissue. Precedents are not wanting, however, to justify such a broad construction. Swan 1'urbine Manuf'g Co. v. Ladd, 2 Banning & Arden, Pat. Cas. 488, is in point, where a more nebulous claim than the present was sustained by limiting it to the particular mechanism described. This case was affirmed by the ' supreme court. 102 U. 8.408. It is not intended to intimate that the defendant's patent is not a valid one. Very possibly his mechanism'is an improvement upon the complainant's, but this will not protect him from the charge of infringement. The complainant will have a decree for an injunction and account. ing, but without costs, upon making due proof or notice to the adverse party of the filing of a disclaimer as to the claim for the process according to law.
SEARLS V. BOUTON.
626
SEARLS
v.
BOUTON
and others.
((Jircuit Court,8. D. New York. February Term, 1881.) PATENTS FOR INVENTIONS-IMPROVEMENT IN WHIP-SoCKETS.
Letters patent No. 231,510, for an improvement in whip-sockets, adjudged valid and infringed, and that reissued letters patent No. 9,297 are null and void, having been granted by the commissioner without authority.
In Equity. J. P. Fitch, for complainant. N. Davenport, for defendant. WHEELER, D. J. This cause having been heretofore heard and a decision thereupon herein rendered to the effect that, the two said letters patent on wliich this suit is brought to-wit, letters patent No. 231,510, dated August 24, 1880, and reissued letters patent No. 9,297,dated July 13, 1880, were valid; that complainant was the owner thereof, and that defendants had infringed them and each of them; and the case having been opened upon motion of defendants for the purpose of putting in evidence the original letters patent No. 150,195, dated April 28, 1874, of which letters patent 9,297 iS8 reissue, and the cause having been further brought on for hearing on the said new evidence so introduced as aforesaid under the order granting defendants' motion: Now, after hearing 1. P. Fitch, Esq., of counsel for complainant, and N. Davenport, Esq., of counsel for defendants, it is adjudged that one John M. Underwood was the original and first inventor of the improvement in whip-sockets described and claimed in letters patent No. 231,510, dated August 24, 1880, and issued to Anson Searls as assignee; that the complainant, Anson Searls, is now the exclusive owner thereof; and that the same are valid and effective in law. n is further adjudged that the defendants have infringed the said letters patent No. 231,510 by selling whip-sockets which contained the invention described and claimed therein. And it is ordered that a perpetual injunction issue out of and under the seal of this court, enjoining and restraining the said defendants and each of them, their and each of their agents, clerks, carriers, servants, and workmen, from making, using, selling, or in any manner disposing of, or parting with, during the unexpired term of said letters patent No. 231,510, any whip-socket containing,embodying, or in any manner counterfeiting or imitating the invention dev.12,no.7-40
'6.26
scribed in said last-mentioned letters patent, or any whip-socket like, or substantially like, those heretofore sold by the said defendants, as proved by the testimony herein. It is further ordered and decreed that the defendants account to the complainant for all the whip-sockets made, sold, or used by them, or either of them, or their agents, attorneys, clerks, carriers, servants, ·or workmen, or either of them, between the twenty-fourth day of August, 1880, and the date of said accounting, which are made substantially like those described and claimed in said letters patent No. 231,510, or that contain the invention therein set forth, and for all moneys and profits received or derived by them, or either of them, from the manufacture, use, or sale thereof, and for all damages that the complainant has suffered in consequence thereof. It is further ordered that it be referred to S.Nelson White, Esq., of the city of New York, a master of this court, to take proof, report, and state such account with all convenient dispatch, and that on the coming in and confirmation of such report the said defendants pay to the ..complainant all the moneys made. or profits received and damages suffered, as may be so reported, with costs from and after the date of :this decree. It is further adjudged that the aforesaid reissued letters patent No. i),297, dated July 13, 1880, are not for the same invention as that -described and claimed in the original letters patent No. 150,195, dated April 28,1874, of which they purport t() be a reissue; that the 'Said original was not inoperative or invalid by reason of a defective or insufficient specification, and that the commissioner of patents had no jurisdiction or power to accept the surre,nder of said original letters patent No. 150,195, and to grant said reiss,ue No. 9,297. It is therefore decreed that the said reissued letters partent 9,297, dated July 13, 1880, are therefore null and void, and that the complainant's biU of complaint, so far as the same relates to the said reissued letters patent, be and the same hereby is dismissed. NOTE. This case was improperly reported. Ante, 140. The case was 'Opened before entry of decree, and the original letters patent, No. 150,195, introduced in evidence, and the case reargued and reSUbmitted, when the abOve decree was entered declaring reissued letters patent No. 9,297 void. N.D.
THE MARIA AND ELIZABETH.
BONELESS FISH CO. CROWELL
ROBERTS
BEARDSLEY
«(h.rlJuit Oourt, 8. D. New York. June 17,1882.) PATENT FOR INVENTIONS-PROCESS FOR CURING FISH.
A patent construed as limited to a process for curing fish is not infriuged bY' a similar process employed after the fish are cured.
R. W. Townsend and A. R. Dyett, for complainants. Betts, Atterbury et Betts, for defendants. WALLACE, C.J. In view of what was well known at the time of Atwood's invention, his patent is to be construed as limited to a process of curing fish in which the membrane or tissue between the flesh and the skin is removed during the process, and before the article is in a condition to be packed and boxed for the market. The defendants buy the article fully cured, and even if they remove the membrane with the outer skin, they only do what anyone has a right to do in preparing the article for cooking. The circumstance that this is done in order to make the article more marketable, does not alter the character of the act. The bill is dismissed.
THE 1.
'MAltIA. AND ELIZABETH.
(DiBtrict Oourt, D. New 'Jer86y· . June 16, 1882.) VE8l!ELS-LnnTED LIABILlTY OJ' OWNERS-DAlIAGEB-REs ADJUDICATA.
In proceedings by petition brought by the owners of the vessel under the limited liability act, (Rev. St. § 4283,) where the vessel has been decreed liable for damages sustained by a collision, the question of liability is reB adjudicata, and in no way involved, and the losing party cannot revive and retry the case upon its merits. 2. SAME-DISTRIBUTION Oil'
Fum>
IN REGISTRY.
The pro rata distribution of the fund, when the amounts are not sufficient to pay all claimants in full, provided for by Rev. St. f 4284, relates to a distribution among those whose losses arise from the collision, and has no reference to other liens of an inferior grade and quality upon the wrong-doer. 3. SAME-PRIORITY Oil' LIEN 1l'0R DAMAGES.
A decree for damages in a case of collision overrules all prior liens, including that for seamen's wages.
On Petition of Owners, etc.