however, shows that the patent is a step backward; that the complainant itself has abandoned the construction described therein, and has ceased paying the agreed royalties to the Roulstone representatives; that it is no longer making school furniture under the Roulstone patent, but is making it under the Feely patent; and that the Roulstone patent is so defective that, to use the language of the treasurer of the complainant company concerning the Roulstone standards in his affidavit in support of the application for the Feely patent:

"I consider them efficient for their intended purpose, when applied singly to chairs; but when they are applied in pairs to desks they are open to the objection that the screws whereby they are secured to the desk and floor are soon wrenched loose, owing to the fact that the faces on the upper and lower portions of the standards, on which the said portions slide, are slanted, and hence separate slightly when the desk is raised, and have to be drawn together again laterally in order to clamp the desk in its adjusted position. The defect just stated has been known to me and to the company generally ever since the Roulstone standards were put upon the market, by reason of numerous complaints from the purchasers thereof; but, although the company would at all times have been glad to discover a practical means of obviating the said defect, yet no one in its employ, so far as I am aware, has ever been able to propose any way of doing so."

Prior patents showed every element of the patented combination in this art. The patent to Thompson granted December 3, 1872 (No. 133,551), shows every element of the first claim, except the notch, which the defendant does not use. The only material difference between this claim and the second and third claims is in the addition of a wedge device which is shown in the Fisher and Alliger patents. This construction is used by the defendant. All that the complainant did was to shift the wedge of the Fisher patent so that there should be double-wedged surfaces bearing against each other, instead of a single-wedged surface as shown therein, without securing any new function or result. The complainant is therefore in this dilemma, on either horn of which he must be impaled: Either the change of location of the two slanting wedges from Fisher or Alliger does not involve invention, for the foregoing reason, or, if it does involve invention, then it does not embrace the Alliger and Fisher construction used by the defendant. Furthermore the file wrappers of the Roulstone and Feely patents show that the patent in any case is a very narrow one; that the claims are very limited, and that the patentee, as a condition of securing said claims, admitted that the essential features thereof were mere details of construction. Defendant further shows that the first claim is limited to a notch, which it does not use. For the purpose of supporting the patent, complainant's counsel have insisted upon a protection against lateral motion by reason of certain transverse wedging afforded by the action of the bolt and washer upon the sides of the slotted shank. This characteristic of the patent is not referred to in the specification or claims, except as it may be inferred from the use of the word "spanning." That it was not thought of or claimed in the patent in suit is evident from the fact that it is specifically claimed in the fourth claim of the Feely patent taken out by complainant as assignee, and from the statement of its counsel in the Feely application that the

Roulstone patent does not cover this transverse-wedging construc tion. In view of the necessarily limited construction to be given to the patent by reason of the foregoing facts, it must be held that the defendant does not infringe any of said claims, and a decree may therefore be entered dismissing the bill.

YALE & TOWNE MFG. CO. v. SARGENT & CO.

(Circuit Court, D. Connecticut. September 5, 1899.)

PATENTS-INVENTION-IMPROVEMENT IN LOCKS.

The Taylor patent, No. 373,107, for an improved lock, the improvement consisting in the use, in an ordinary mortise door lock, of a guard plate, or extra face plate, to cover the head of a set screw for greater security, does not disclose patentable invention, and is void.

This was a suit in equity by the Yale & Towne Manufacturing Company against Sargent & Co. for infringement of a patent. On final hearing.

Wetmore & Jenner, for complainant.

John Kimberly Beach and Samuel H. Fisher, for defendant.

TOWNSEND, District Judge. At final hearing herein defendant contests the validity, and denies its infringement, of complainant's patent No. 373,107, granted November 15, 1887, to Warren H. Taylor, for an improved lock. The improvement relates to the old ordinary mortise door lock where the cylindrical tumbler case or escutcheon is screwed into the bolt case. Such escutcheons are generally grooved on the side, and a set screw, screwed through the face plate, fits with the groove, and prevents the escutcheon from being turned. When the door was unlocked, it was possible to turn this set screw far enough back to disengage it from the escutcheon, and, when the door was again locked, to unscrew the escutcheon, and thus get access to the bolt, and unlock the door. The patentee herein proposed to provide greater security against such tampering with the lock by screwing to the regular face plate of the lock an extra face plate, which he called a "guard plate," and which covered the head of said set screw. The claim is as follows:

"In a lock, the combination, with an escutcheon-securing set screw, of a guard plate covering the head of the set screw, and secured to the face plate of the lock, substantially as set forth."

It is difficult to conceive on what theory a patent could be granted for such a mere cover, or aggregation of two duplicate face plates. It is conceded that the construction involved nothing more than mere mechanical skill. The prior art in various patents showed face plates, set screws, and guard plates covering the heads of set screws and secured to the face plates, substantially identical in construction with that of the patent in suit.

The position of counsel for complainant is as follows:

"The matter, therefore, comes to this: That invention may be involved in the claim if the conception is novel, and the practical embodiment of it is useful, notwithstanding that the mere execution of it may involve merely me

chanical skill. The question, then, is, was there inventive genius in Taylor's conception as embodied in the claim? And ⚫ the defendant's argument * is that invention was not involved in transferring from the lock of the Pitt, Biggs, or Hart patent the supplemental plates shown in those constructions, in view of the fact that plates of various forms had been used in articles of household hardware to cover up screws; and it is asserted that the guard plate of the Taylor lock performs its function of covering up the set screw in the same manner that these older plates performed their respective functions. When we consider that Taylor's invention involved the projection of the inventive faculty much further into the unknown, and that he gave birth to an idea which involved the retention, without impairment of all the advantages of the existing lock, and giving to it, in addition, greatly increased security, then we see that the proposition that the peculiar means employed by him did its work in the same way that prior plates did their work is irrelevant. The important matter is that the work which the Taylor guard plate does is not the same work which the prior plates did, and this difference in work proves a difference in function. The manner of doing the work is nothing; the work done is everything."

It is established by various decisions that a novel conception of the application of old means to produce a new and unusual or unexpected result is not a double use, and may be patented. The question in such cases is whether the conception involves invention. In Newark Watch-Case Material Co. v. Wilmot & Hobbs Mfg. Co., 60 Fed. 614, the patent was for an external removable sheet-iron watch protector to prevent it from being affected by magnetic currents. The prior art showed similar boxes, designed for protection against robbery. The circuit court of appeals (13 C. C. A. 27, 65 Fed. 507) held, affirming the decision of the court below, that, although no anticipatory watch protector was shown, yet the question was one of patentability, and that, as the idea was a natural and obvious one, it was not patentable. So, in the case at bar, the use of such duplicate face plate being old, the mere idea that it might here be used as an additional protection, but in exactly the same form, is so obvious as not to be patentable. In Watson v. Railway Co., 132 U. S. 161, 10 Sup. Ct. 45, the patentee claimed that he was the first person who conceived the idea of combining in one freight car an inside flexible and outside rigid door, and that various advantages were the result of such combination. The supreme court cited, approved, and affirmed the opinion of the circuit court that such a construction was a mere aggregation, and did not involve invention. The reasoning in said case is directly applicable to the case at bar. As was said by Mr. Justice Matthews in Heald v. Rice, 104 U. S. 754: "It is only the occasion which is new; the use itself is merely analogous." Let the bill be dismissed.

CITY OF CHICAGO v. WISCONSIN S. S. CO.

(Circuit Court of Appeals, Seventh Circuit. October 3, 1899.)

No. 550.

1. NAVIGABLE WATERS-Bridges-NegliGENCE IN CONSTRUCTION OF Draw. Where the draw of a bridge maintained by a city over a navigable stream is provided with a lock at one end, sufficient to hold it in position when open, under ordinary circumstances, the city is not chargeable with negligence because such lock is not sufficiently strong to withstand the

Impact of a vessel striking against the side of the draw at the opposite end, or because the draw is not locked at both ends.

2 SAME-SUIT FOR INJURY OF VESSEL-BURDEN OF PROOF.

In a suit against a city to recover for an injury caused by the draw of a bridge swinging out and striking a passing vessel, where there was evident fault on the part of the vessel or the bridge tender, but it is not satisfactorily located by the evidence, the libel will be dismissed.

Appeal from the District Court of the United States for the Northern District of Illinois.

This was a libel in personam by the Wisconsin Steamship Company against the city of Chicago to recover damages for injuries to libelant's steamer, the Thomas Davidson, then in tow of the tug William Dickinson, by collision with the Indiana Street Bridge, which occurred May 13, 1895, through the alleged negligence of the bridge tender.

The undisputed facts of the case were as follows: The bridge crosses the north branch of the Chicago river from east to west, and rests upon a turntable built upon piles in the middle of the river. The bridge swings north and south, and, when open, is supported upon what is known as the "center protection," which extends the whole length of the draw up and down the river, north and south. It is constructed upon piles driven into the bottom of the river, bound together and planked over with a stringer around it, and forms a sort of a platform upon which the bridge, when open, rests. The bridge was 321⁄2 feet in width; the platform 35%1⁄2 feet, projecting beyond the bridge a distance of nearly 2 feet upon either side. The bridge proper hung about 9 feet above the water. The main channel of the river was on the west or starboard side of descending vessels. The draw of the bridge was swung upon the center, but was locked at the north end only. This lock was formed by the dropping of a bar attached to the bridge into a socket standing up from the protection.

The steamer was 312 feet long, 42 feet beam, and, had she been kept in the center of the channel, would have had 21⁄2 feet clear upon either side.

The collision occurred a little while after dark, as the steamer came down the north branch of the river, and passed through the westerly channel of the draw. As she was passing through, from some cause, the north end of the bridge swung into the channel, and over the port quarter of the steamer, carrying away some of her upper works, including her after-cabin. The allegation of the libel in this connection is that "the steamer had almost got through the draw of said bridge, when the bridge tender carelessly and negligently swung said bridge in and over the side of said vessel near the stern and at her quarter, and caught the forward end of said steamer's boller house, crushing it in, and knocking down her smokestack, breaking her steam pipes, and blowing off the steam," etc.; and further, "that the said bridge tender caused said bridge to swing so unexpectedly and suddenly that there was nothing the master of said steamer could do to avoid the accident, and that said accident occurred solely through the negligence and unskillfulness of said bridge tender in causing said bridge to run foul of and against said steamer as aforesaid."

This allegation of fault was practically abandoned upon the hearing, and the cause tried upon the theory, not that the bridge tender negligently swung the bridge as the steamer was passing through, but that the bridge had not been swung over in line with the center protection and locked, as it should have been, but was left so far out of line that the bow of the propeller struck it at the southerly end, and thereby caused the north end to swing over the propeller.

Upon a full hearing upon pleadings and proofs, the district court was of opinlon that the collision occurred either by reason of the fact that the bridge was not exactly parallel with the protection, and that the south end projected into the river, or because the bridge was not locked at both ends, as, in its judgment, it should have been. A decree was accordingly awarded against the city for $3,006.87, from which respondent appealed to this court.

Charles E. Kremer, for appellant.

Robert Rae, for appellee.

Before BROWN, Circuit Justice, and WOODS and JENKINS, Circuit Judges.

BROWN, Circuit Justice (after stating the facts as above). The material question in this case is whether the bridge, as the tow approached the draw, was in line with the center protection or pier, and was properly locked at its north end. If it were not exactly in line, then the south end probably projected into the draw, and, as there was only a margin of 2 feet on each side of the steamer, a blow against the south end of the bridge would thrust it to the eastward, with a corresponding movement of the north end to the westward, which would carry it directly over the port quarter of the steamer. Upon the other hand, if the bridge were directly in line with the center protection, and properly locked, it is difficult to see why the whole duty of the city to the steamer was not discharged, as the protection projected beyond the bridge on either side a distance of 1 to 2 feet, and the steamer would encounter and be warded off by the protection before it touched the bridge.

The presumption and the probabilities are that the bridge tender performed his whole duty in this particular. The direct testimony is all to the same effect. Not only does the tender swear that the bridge was locked, but the master of the steamer, who was standing on the pilot house, in full view of the bridge, says there was nothing in the situation to apprise him of any danger of collision, and that the bridge seemed to be perfectly parallel with the abutment, so that it could not have projected over any; and that, after he had passed the lower end of the center protection, he suddenly heard a crash, which he at first thought was an explosion. There is no testimony to contradict this.

The only allegation of negligence in the libel is that "the bridge tender carelessly and negligently swung the bridge over the vessel." There is absolutely no testimony to support this theory, and it may well be doubted whether such evidence as there is of negligence is not a material departure from the allegations of the libel, though it is probably too late to raise a question of variance in the appellate court. The bridge tender, in this connection, swears that, as the vessel passed, he was standing against the lever by which the bridge. is swung, and that as he was standing there, watching, he received a sharp blow in the back, which knocked him over, and rendered him nearly unconscious. When he got up, the lever had gone around three or four times, and the bridge was over the boat. If this testimony be true,-and it seems by no means improbable,-it indicates almost conclusively that some great force was suddenly brought to bear upon the south end of the bridge, which caused an abrupt and violent motion of the bridge lever.

The negligence now relied upon is that the bridge tender failed to lock the bridge, by reason whereof the south end was struck by the steamer, and the north end driven over her port side. As already observed, there is no direct testimony to this effect, and the fact that the center protection projected beyond the bridge indicates that the steamer would come in contact with the protection before it could touch the bridge.