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court. They are all founded on alleged infringements of a patent to Charles Singer, July 6, 1869, for an improvement in the construction of rocking chairs. The patent contains two claims. The second relates to a device by which a current of air is produced, which, by the act of rocking, is impelled through a flexible tube so as to be carried to any part of the person seated in the chair. That claim is not in controversy here, and need not be further considered. The rocking-chair is one constructed to move upon a stationary platform, and not upon the floor. The platform has a base or rail, upon which the rockers move, the lat ter being curved in the usual form. The base or rail is tongued, and the bottom of the rockers grooved, so that the one fits into the other, and the ends of the base (or "rails," as the patent calls them) are elevated so as to prevent the rockers from working off. The base or rails are A-shaped, or of other form, upon which the rockers are fitted, the latter being provided with V-grooves, or otherwise adapted to the rail, and projecting but a short distance below the seat. If it be intended that the rails are grooved and the rockers tongued, there would be no difference in the principle.

The specification alleges:

The rockers may be connected to the rails of the stand by flexible bands in passing over studs projecting from the sides of each, to prevent the seat from moving back and forth on the rails or rocking too far either way. These bands may be slipped off the studs when the chair is to be taken apart for packing.

The first claim, which is the only one said to be infringed, is as follows:

1. The stand A, having rails B, the seat c' and rockers C, fitted to the said rails, and the elastic bands M, combined and arranged substantially as specified.

Having thus stated in what that part of the Singer machine consists which is the subject of controversy here, the question naturally presents itself in what respect it was new and the subject of a patent. The movement of a rocking chair on a stationary platform, instead of rockers moving on the floor, was not the invention of Singer. That device had been used before. In a general sense it was contained in the patent of Samuel Simmons, of December 21, 1819, and particularly in the patent of Samuel H. Bean, of March 31, 1840. Bean states that the principal feature of his invention consisted in making the seat (and "stool," as he calls it) of the chair in two parts, so that while the stool remains stationary the seat was made to rock on rockers. The base or rail on which the rockers moved in his chair were smooth, but there was a flange on the outside of each rocker similar to that on the inside of a railroad car wheel, and which he calls "guards," which prevented the seat from having any lateral movement. There were certain hanging metallic plates, whose upper ends were suspended from the inside of the seat-frame by pins, the object of which was to prevent the seat from being thrown off the stool. Without referring now to some of the other patented improved rocking-chairs which have been set up by the de

fense, it is clear that Singer found a platform or stool, with a chair on rockers moving on the rails or base of the stool, with flanges on one side of the rockers to prevent lateral displacement, and also with a device to prevent the seat and the rockers from being thrown off the stool. Now, what did he add to or change as to this part of his patent? He tongued the rails or base, and elevated them at the ends, and grooved the rockers, instead of making flanges on the outside of each, thus fitting the rockers to the rails or base, and he attached an elastic band to the platform on each side of the stand. With a rocker attached to an ordinary chair, moving on a rail or platform base, as existed in Bean's chair, tonguing and grooving the rocker and the base, and elevating the latter at each end, would seem to be no more than a mere mechanical change. In that case all that is left would be simply the fact that an elastic vertical band is attached to the two parts of the structure to prevent the chair from being thrown off the platform; and the elastic band is nothing more than a mechanical device to accomplish the object named. But in any view of the subject it seems clear that the patent, if it could be sustained for the particular manner in which the chair is constructed-namely, "the stand A, having rails B, the seat c', and rockers C, fitted to the said rail, and the elastic bands M, combined and arranged as specified"-then the chairs constructed by the defendants do not come within the specific descriptions here contained, and so would not infringe the plaintiff's patent. But we prefer to place our opinion upon broader grounds, and to say that, fairly construing the device here in question, as set forth in the specifications, there was nothing in it that entitled Singer to a patent.

[United States Circuit Court-Southern District of New York.]

MARKS. CORN ET AL.

Decided October 19, 1881.

23 O. G., 94.

INJUNCTION-INFRINGEMENT Doubtful.

Motion for a preliminary injunction denied, there being doubt npon the ques tion of infringement.

Mr. C. W. Betts for the plaintiff.

Mr. G. M. Plympton for the defendants.

BLATCHFORD, J. :

Understanding the subject-matter of the motion for an injunction herein to be whether a cap constructed substantially like the cap annexed to the affidavit of Samuel Corn, sworn to October 6, 1881, infringes Reissue No. 7,808, Division B, I am of opinion that the question of infringement is so doubtful as to make it improper to grant 10452 c P-9

an injunction except as the result of a final hearing in the case. The cap in question, whether made so that the upper edge of the part, which may be called the "protector," swings below the lower edge of what may be called the "body of the cap," or whether made so that such upper edge does not swing below the lower edge of such body, seems to be unlike in structure to the cap of the patent and unlike in structure to any of the caps held to be infringements in the suit against Fox and in the suit against Schwartz. The same ultimate result may be accomplished in protecting the ears and the neck, when desired, and in removing the protector up and down, when desired, and in having a finished appearance in the cap when the protector is up; but the claims of the patent are for the means of effecting such results. It would seem that the defendants' cap has no upper edge of a protector, in the sense of the patent, and no separate protector attached to the cap by a tape or cloth, as in the patent. The second claim, equally with the other two claims, must be construed as applying only to such a separate protector as the patent shows.

The motion is denied.

[United States Circuit Court-District of New Jersey.]
WELLING ET AL. v. CRANE ET AL.

Decided December 21, 1882.

23 O. G., 189.

1. LETTERS PATENT NO. 98,727 DECLARed Void.

Letters Patent No. 98,727, granted to William M. Welling, for an improved composition resembling horn, January 1, 1870, declared void for want of patentable novelty.

2. SAME STATE OF THE ART-OLD ELEMENTS.

The specification of the alleged invention does not describe such an advance in the art as should exist to sustain a patent. The patentee selected certain wellknown materials and combined them in proportions that were within the range of the common knowledge of the art. Such a selection did not, in the absence of a new result, involve invention, and could not properly be made the subject of a patent.

Messrs. Betts, Atterbury & Betts for the complainants.

Mr. Rowland Cox and Mr. J. Hervey Ackerman for the defendants.

NIXON, J.:

This action is brought to restrain the defendants from infringement of Letters Patent No. 98,727, issued to William M. Welling, and bearing date January 1, 1870. The title of the patent declares it to be for an improved composition resembling horn. The specification states that a composition had heretofore been made resembling ivory in which the ingredients were mixed together and then ground between heated rollers to render the composition uniform and plastic, and then recites three

several patents which had previously been granted to Welling, the first numbered 17,949, and dated August 4, 1857; the second numbered 75,067, and dated March 3, 1868, and the third numbered 89,100, and dated April 20, 1869, all obtained for an improvement of compositions imitating ivory. He claims that the present invention is an improvement upon these patents, and has reference to a new composition, to be worked and molded the same as set forth therein.

The defense turns chiefly upon the question of the novelty of the complainants' patent. Two inquires are presented: 1. What is the inven tion which the patentee claims? 2. Was it known to the public at the time of Welling's application for the patent?

1. The first of these questions is not readily answered. The patentee himself, although pressed strongly under cross-examination, did not seem willing to tell us what he deemed his invention to be. The patent was issued under the act of July 4, 1836, the sixth section of which providesThat before any inventor shall receive a patent he shall deliver a written description of his invention or discovery in such full, clear, and exact terms as to enable any person skilled in the art or science to which it appertains to make, construct, compound, and use the same, and shall particularly specify and point out the part, improvement, or combination which he claims as his own invention.

The patentee was requested by the solicitor of the defendants to point out the particular statements in the patent which described his invention (Com. Rec., p. 152; Cross, 2477 et seq.), but he declined to do so, saying that his only answer was the patent itself and the testimony taken in the case. The complainants' expert, Mr. Brevoort, was more communicative, and, in reply to a question as to what he understood was claimed and described in the patent, states (Com. Rec., p. 177):

The claim I understand to be for an article of manufacture consisting of the composition described in the patent, which composition is to be prepared by the process described in the patent-that is to say, the patent is for an article of manufacture prepared by a certain process. The article is to consist, according to the patent, cf shellac, fiber in the form of flock, and, if desired, of pigments to give to the article the desired color and to impart to the article the desired gravity. The patent also specifies that, by weight, one part of shellac and a half part of the flock material are to be used. The amount of pigment which may be used is not stated, The process consists in mixing the ingredients together in a dry state. The composition when mixed together is then to be worked and 'ground between rollers, in the presence of sufficient heat to render the mass plastic. After this the mass may be molded to form any desired article.

To sum up the matter briefly, I would state that I understand the claim of the Welling patent to cover an article made from flock and shellac in about the proportions given, and to which coloring may be added, when said article is produced by mixing the ingredients together in the dry state, grinding them in the presence of heat between rolls so that the mass is plastic, and then molding the mass in the desired form.

This would seem to be definite enough. Are the methods for making such an article sufficiently described in the specifications of the patent! The patentee says he has a new composition resembling horn, which is

an improvement upon all compositions before made. In manufacturing it he uses shellac and vegetable or animal fiber, mixed together by wellknown means-taking "about one part, by weight, of shellac to onehalf part, by weight, of cotton, wool, or other an imalor vegetable fiber." He finds that it is best to mix the ingredients together in a dry-state, the fiber being in short pieces, or in the form of flock, and according to the fineness of the fiber and the extent to which they are ground together, so the materials formed from such a composition will be more or less mottled in appearance similar to horn, and various colors may be produced by the color previously given to the fibrous material. Different pigments may be mixed in the composition to give the desired color or to impart more or less weight, as desired. The chief characteristic of the new composition is its great strength.

In the testimony taken in the disclaimer filed by the complainants' pendente lite, and in the arguments of counsel, an attempt has been made to limit the construction of these specifications to an article formed from the mixture of shellac with cotton flock in the proportions named in the patent. The reason of such an attempt is obvious. If it fairly includes in the materials to be used all animal or vegetable fibers, the patent must be declared void for claiming too much. It is doubtful whether the specifications, properly construed, are capable of such limitations; but the question is not important if it shall be found upon investigation of the state of the art at the time of the issue of the patent that there is no novelty in the alleged invention when the fibrous material used is confined to flock.

2. What did the public know in regard to the subject-matter at the time the Welling patent was issued? It knew that as early as October 3, 1854, one Samuel Peck, of Connecticut, obtained Letters Patent No. 11,758, for improvement in the manufacture of a composition of daguerreotype-cases, and that in the specification of the patent it was stated that the composition to which the invention related was composed of gum-shellac and woody fibers, or other suitable fibrous material, dyed to the color that might be required, and ground with the shellac and between hot rollers, so as to be converted into a mass, which, when heated, became plastic, so that it could be pressed into a mold or between dies and made to take the form that might be imparted to it by such dies. It knew that one John Smith, of Birmingham, England, procured English letters patent on April 5, 1860, for an improvement in a composition for the manufacture of buttons and other dress-fastenings, the object of the patentee being to attain greater tenacity, density, lightness, and delicacy of tint in coloring. He states that he takes one pound of shellac, dissolves it by heat on a flat-iron slab, and then mixes with it an equal quantity, by bulk, of ebony dust, or other wood dust; that he then introduces coloring-matter and amalgamates the ingredients until the mass appears thoroughly homogeneous in its nature throughout. These components having been well mixed upon a slab or stone while

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