« AnteriorContinuar »
Opinion of the Court.
he produced the testimony of the shipping clerk of that firm, who swore that as early as 1876 the firm shipped to Gandy belting canvas having the warp threads stouter than the weft; there being six plies in the warp and only four in the weft. Mr. Gandy also swears that since 1875 all the canvas ordered by him was made with the warp stouter than the weft. As there is no testimony to contradict this it must be accepted as a fact in the case.
(2) The court below, however, found that, conceding that his invention was made as early as 1876, antedating the filing of Jones' specification by some two years, the same testimony also proved that it had been in public use more than two years before filing his application, and that under Rev. Stat. section 4886, the patent was therefore void. All that the evidence upon this point shows is that Gandy ordered all his canvas made by the Mt. Vernon Company and shipped to him at Liverpool. There is no direct testimony to show whether this canvas was made up into belting, or when the belts were first publicly used or sold abroad. Indeed, nothing to show that it was in public use or on sale before the application for the patent in this suit was filed. Even if we were authorized to presume that such canvas was manufactured into belting and sold or used in England, there is not a particle of testimony tending to show that it was publicly used or put on sale in this country. Conceding that there was sufficient evidence of the use of such belting in England, we think that this does not vitiate the patent. Section 4886 declares that "any person who has invented or discovered any new and useful art, machine, manufacture or composition of matter, or any new and useful improvement thereof, not known or used by others in this country, and not patented or described in any printed publication in this or any foreign country before his invention. or discovery thereof, and not in public use or on sale for more than two years prior to his application, unless the same is proved to have been abandoned, may, upon payment of the fees required by law, and other due proceedings had, obtain a patent therefor." It is true that the language of this section contains no restriction as to the place or country wherein the public use
Opinion of the Court.
is made of the invention; but taken in connection with section 4887, providing that no person shall be debarred from receiv ing a patent, by reason of the invention being first patented abroad, "unless the same has been introduced into public use in the United States for more than two years prior to the application," we think that the public use or sale contemplated by section 4886 must be limited to a use or sale in this country. That this was the intent of Congress is also manifest from section 4923, providing that whenever it appears the patentee believed himself to be the original and first inventor of the thing patented, his patent shall not be held void "on account of the invention or discovery, or any part thereof, having been known or used in a foreign country before his invention or discovery thereof, if it had not been patented or described in a printed publication." So also in section 4920, providing what the defendant may plead under the general issue in actions for infringement, there is included the defence "that it had been in public use or on sale in this country for more than two years before his application for a patent, or had been abandoned to the public."
Taking all these provisions of the patent law together, we think it was manifestly the intention of Congress that the right of the patentee to his invention should not be denied by reason of the fact that he had made use of it, or put it on sale abroad, more than two years before the application, provided it were not so used or sold in this country.
(3) The questions of novelty and utility may properly be considered together. There is much testimony tending to show that Gandy believed himself to be the inventor of a belting made of hard woven canvas stitched and saturated with oil, and that the importance of having the warp stouter than the weft was not fully appreciated by him, and hence was not made an element of the claim of his original British patent. The testimony, however, shows that the canvas or duck ordinarily used for sails is made with the weft as stout, if not stouter, than the warp, and that such canvas was found to be impracticable for belting on account of its liability to stretch or to crack in passing around the smaller pulleys. His first
Opinion of the Court.
belts made of ordinary soft canvas proved to be wholly impracticable owing to their apparently endless capacity for stretching. He next experimented with hard-spun and tightwoven canvas, specially manufactured for this purpose. This did not stretch, but developed another fault, of wrinkling and cracking when running around pulleys. This he obviated by saturating it with linseed oil; but found another objection in the unequal strain on the several thicknesses when passing around the pulleys, which tended to break the stitching and permitted the plies to separate. He then conceived the idea that by decreasing the thickness of the belt, without diminishing its tensile strength, he would bring the diameter of the exterior plies more nearly level with the inner plies next the pulley, and thus more nearly equalize the strain on all parts of the belt, increasing its effective strength and diminishing the tendency of the plies to separate or wrinkle. It is obvious even to a non-expert that, if the belting be made very thick, there is a much greater strain upon the exterior plies, when passing around a small pulley, than upon the inner plies, and that the effect must be both to unduly strain the exterior plies, rendering them liable to break, and to wrinkle the inner ones, subjecting them to the danger of cracking; and that the ideal belting would be made as thin as would be consistent with the requisite strength and inflexibility. In view of the fact that previous attempts, of which there appear to have been several, to make a practical canvas belt had been failures, and that Gandy had been experimenting with the subject for several years before he discovered that a change was necessary in the structure of the canvas itself, we do not think his improvement is a change in degree only, or such an one as would have occurred to an ordinary mechanic, and our opinion is that it does involve an exercise of the inventive faculty. The change is such as would only have occurred to one familiar, not alone with the impossibility of making a practical belt out of the ordinary canvas, but to one who had bestowed considerable thought upon the method of overcoming the difficulty. While some of the testimony would seem to indicate that there is no great advantage in this method of
Opinion of the Court.
construction, we think the fact that it has been largely adopted by manufacturers and that all the modern improved belting ordered or made by Gandy and in general use both in this country and in Europe, is made in this way, is, for the purposes of this case, sufficient evidence of its utility. Magowan v. New York Belting Co., 141 U. S. 332.
(4) We have no doubt upon the subject of infringement. While, as claimed by the defendant Plummer, there may be as many plies or individual threads in the weft of his canvas as in the warp, the most casual observer of the relative strength of the warp and the weft cannot fail to notice that the former is much thicker and stouter than the latter in fact, that the Gandy belting and the defendants' in this particular are identical. The defendant Plummer having adopted Gandy's idea of making warp stouter than his weft, is not in a favorable position to claim that it is useless. Indeed, Plummer appears to have been formerly in business with Gandy, and was sent by him to America in 1879 to confer with his solicitor in reference to his pending application for a patent. Gandy subsequently decided to start the manufacture of belting in America, and to give Plummer employment, and for that purpose took him into his factory in Liverpool, so as to give him an insight into the business. In 1880 he came to America, was met by Plummer, leased a building for a factory, and took him into his employ. Plummer seems, however, to have failed to give satisfaction, and Gandy subsequently dismissed him from his service, whereupon Plummer proceeded to organize a company upon his own account for the manufacture of the infringing belting. In pursuance of this intention he states himself that he came to Washington, examined the Gandy patents, and took legal advice with regard to making a belt which would not infringe them. He also suggested to plaintiff the danger of his marking an unpatented article with words importing that it is patented, and called his attention to Rev. Stat. sec 4901, making this a penal offence.
The language of Mr. Justice Woods, in delivering the opinion of this court in Lehnbeuter v. Holthaus, 105 U. S. 94, 96, is equally pertinent to this branch of the case: "The patent is
prima facie evidence both of novelty and utility, and neither of these presumptions has been rebutted by the evidence. On the contrary, they are strengthened. No anticipation of the design is shown, although the attempt has been made to prove anticipation. The fact that it has been infringed by defendants, is sufficient to establish its utility, at least as against them."
The decree of the Circuit Court is, therefore,
Reversed, and the case remanded with directions to enter an interlocutory decree for the plaintiff, and for further proceedings in conformity with this opinion.
CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY v. DENVER AND RIO GRANDE RAILROAD COMPANY.
DENVER AND RIO GRANDE RAILROAD COMPANY v. CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY.
APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO.
Nos. 1095, 1109. Submitted January 7, 1892.- Decided March 7, 1892.
In the interpretation of any particular clause of a contract, the court is required to examine the entire contract, and may also consider the relations of the parties, their connection with the subject matter of the contract, and the circumstances under which it was made. The Chicago, Rock Island and Colorado Railway Company contracted with the Denver and Rio Grande Railroad Company for the use by the former of the tracks, stations, sidings, switches, etc. of the latter company between Colorado Springs and Denver, (except its shops at Burnham), and also for its terminal facilities at Denver, and, having so contracted made its connections and entered on the enjoyment of its rights under the contract. Shortly afterwards the Chicago, Rock Island and Pacific Railway Company was organized and acquired the property and rights of the Chicago, Rock Island and Colorado Railway and entered into the enjoyment of them, and its rights were recognized by the Denver and Rio Grande Railroad Company. The Rock Island and Pacific Company then acquired a right to connect with the Union Pacific Railroad