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[2] The De Mayo patent sets forth one prime and several minor objects of invention.

1. The prime one is the means for distributing the coal (when it has been lifted) into the various bunker hatches.

2. Another object is constructing the elevator proper, so that it will not spill coal, but deliver all raised in the buckets. This is effected partly by the form and arrangement of the buckets-partly by a shield on the side of the elevator nearest to the ship.

3. Another object is such arrangement of the delivery chute which leads to the coaling port that it may be readily adjusted to suit the lowering of the coal in the barge.

4. Another object is to provide means for sustaining the elevator proper "flexibly in position alongside of the ship, so that any movement of the barge from which the coal is taken will not destroy or rack any of the parts of the apparatus."

As might be supposed, the record indicates that it was old to suspend the elevator from a davit, or boom, or what not on the ship by a tackle, and, as the coal level sank, to pay out on the tackle, so as to keep the bottom of the elevator on the coal. The improvements of the patent last referred to are the "flexible arrangements" for preventing racking of parts.

The testimony shows that the whole apparatus is a useful one, an improvement on the old art, greatly facilitating the process of coaling a large ship with numerous bunkers, without loss, wastage, or dust. When this testimony is studied, however, it is apparent that the distributor from the coal port to the several bunkers is a very important feature of the invention; it must be a great time-saver. So is the feature that by shape and arrangement of buckets, apron, and long shield any overflow will drop back into the barge and not be wasted. So, too, the "self-contained motor"; i. e., motor located on the frame itself to elevate the buckets is considered desirable. Such self-contained motors were old.

Incidentally it may be noted that the distributor on the ship is an element of claims 1, 2, 4, 5, 6, 11, and 12. The shield is an element of claims 9 and 10. The details of buckets and apron are elements of claim 13. The location of the motor for raising the buckets on the frame is an element of claims 3, 7, 8, 9, 10, and possibly 2 and 11.

Such a combination of different subimprovements constituting a single structure may have a great commercial success, and yet such success may not be persuasive evidence that some one of the subimprovements discloses patentable invention. The single claim relied on here is No. 7, which reads:

"7. In an apparatus for coaling ships, the combination of a frame and elevating means thereon, means for driving the elevating means, the driving means being mounted on the frame, means mounted on the ship and connected with the upper part of the frame to suspend the same from the ship, and guy devices at each side of the frame said devices being in connection with the frame and with the ship."

A portion of Fig. 1 and Fig. 1a will sufficiently illustrate the devices which are features in claim 7:

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It is manifest that an elevator suspended by a tackle from a davit. would be likely to sway; even if its lower end rested on the coal or grain to be elevated. A perfectly obvious way of securing its lower end would be by guys, or tackles such as are shown at 12, 12 in Fig. 1a. Such guys form no part of claim 7. But, even if the lower end were secured by guys, there would be swaying of the upper end, induced partly by the operation of the buckets, partly by the motion. of the water on which both barge and vessel rest. Such motion might be lengthwise of the vessel; it might also be to and from the vessel; the upper end might even sway so far inward as to rest against the side of the vessel, which would interfere with the overturn of the buckets and delivery of the coal. Equally obvious would be the devising of means, more or less efficient, to remedy the difficulty. Surely any handy sailor man would know that the upper end might be kept off from the side of the ship by the use of some rigid, unyielding device, which would act as a boom does; also that a lengthwise sway could be checked by guys or tackles near the top and leading fore and aft to the side of the ship.

The specific method of booming and guying which De Mayo adopted is thus described in the patent:

"Attached to each side of the frame on the corners adjacent to the ship are longitudinally extending rails 14 on which fit loosely sleeves, 15. To these sleeves are pivoted guy rods 16. Said rods have hooks 17 at their opposite ends, and these hooks are adapted to be engaged with the rail or other convenient part of the ship at each side of the elevator proper in the manner illustrated in Figs. 1 and 1a."

In this structure the rigid guy rods 16 act as a boom to hold the upper end of the elevator off, so that it will not impinge on the side of the ship, but they are so arranged as to secure a give and take

action under pressure, so as to avoid racking of parts. As they are hooked to the ship's rail fore and aft of the elevator they also act as guys to hold against lengthwise swing. The device seems to be a simple one, and it is not shown to disclose patentable invention by testimony as to the great commercial success of the whole structure which makes up the De Mayo elevator. Certainly the increased dispatch with which the coaling of ships is effected a matter made most of in the testimony-is accomplished by the ingeniously devised distributor (36, 37, 38, 39) which promptly and automatically conveys the coal received at the coaling port to the several bunker hatches. This case, as was said before, closely resembles the Doig Case in that respect; out of upwards of 300 lines in the specification only 16 are devoted to these "guy arms"; out of 13 claims they are made an element in 3 only.

Nevertheless for the purposes of this appeal this specific device may be considered patentable. The two following figures disclose defendant's method of suspending its elevator and counteracting the tendency of its upper end to sway:

E

E

E

B

FE

The elevator is suspended by a tackle C and two guys CC; further guys against swaying lengthwise of the ship are shown at EE. B is a rigid projection or knuckle from the inner side of the frame, which acts as a boom and effectively prevents the upper end of the elevator from itself impinging on the side of the ship. Movements of the barge caused by disturbance of the water may cause this upper end to swing off from the ship, but as it comes back the knuckle alone will strike the ship's side, quite possibly sometimes with a hard rap which might be likely to rack the parts, a result avoided by De Mayo's guy arms, with their give and take action. The two sets of guy ropes CE check swing lengthwise of the ship; the suspending tackle will, of course, prevent the upper end from tilting over too far, as would De Mayo's suspending tackle 11. But this is just the simple set of devices, which as was pointed out above, would naturally occur to any one accustomed to handling weights by the use of tackles. It would be, not a reasonable but an unreasonable application of the doctrine of equivalents which would stretch the claim covering the patentee's specific structure to embrace the cruder use of well known devices which would be perfectly obvious to any one seeking to secure the upper end of a suspended elevator from swaying.

The decree is reversed, with costs.

(231 Fed. 741)

VOORHEES RUBBER MFG. CO. v. MacDONNELL et al.

(Circuit Court of Appeals, Third Circuit. April 4, 1916. Rehearing Denied April 14, 1916.)

PATENTS

No. 2075.

328-INFRINGEMENT-PNEUMATIC TIRE.

The MacDonnell patent, No. 981,208, for a pneumatic tire which is rendered self-healing in case of puncture by means of a stay strip secured to the tread portion and which is nonstretchable in a direction transversely of the tire, thus holding it in a state of compression, but is capable of stretching in a direction longitudinally of the tire, makes the transversely nonstretchable quality of the stay strip an essential element. As so construed, held not infringed.

Appeal from the District Court of the United States for the District of New Jersey; John Rellstab, Judge.

Suit in equity by James MacDonnell and others against the Voorhees Rubber Manufacturing Company. Decree for complainants, and defendant appeals. Reversed.

For opinion below, see 227 Fed. 898.

Edwin J. Prindle, Arthur Wright, and Prindle, Wright, & Small, all of New York City, for appellant.

R. W. France and Duell, Warfield & Duell, all of New York City, for appellees.

Before BUFFINGTON, MCPHERSON, and WOOLLEY, Circuit Judges.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

1

BUFFINGTON, Circuit Judge. In this case James MacDonnell and others, owners of patent No. 981,208, granted to him January 10, 1911, for a pneumatic tire, charged the Voorhees Rubber Manufacturing Company with infringement of the second and fourth claims thereof. On final hearing the court below, in an opinion reported in 227 Fed. 898, held the patent valid and the claims infringed. From a decree so adjudging, the defendant took this appeal.

The patent in question concerns the self-healing of a punctured tire. The specification recites that this had been heretofore attempted, viz.:

"It has heretofore been proposed to make a pneumatic tire with a tread portion thickened and made of rubber which is held under compression, so that if the tire is punctured the hole will be immediately sealed up as soon as the puncturing body is withdrawn."

It recited that in so doing nonstretchable stay strips had been used to cause the desired rubber compression, viz.:

"This construction has been secured by molding the tire tread in a normally depressed position and securing firmly to the exterior of the rubber body a stay strip of canvas or similar material, so that when the tire is inflated the nonstretching qualities of the stay strip will cause the rubber to be compressed."

It then states that in these efforts the stay strips have been inelastic both transversely and longitudinally, viz.:

"So far as I am aware, in all prior attempts to make a tire of this type the stay strip or backing has been inelastic, both transversely and longitudinally."

MacDonnell then states that this inelasticity transversely is essential, and that the change he suggests is to retain the transverse inelasticity, but to substitute longitudinal elasticity for prior inelasticity, viz.:

"My present invention is in the nature of an improvement on tires of this class and aims to provide a construction wherein when the tire is inflated the tread portion thereof is held against stretching in a transverse direction, thereby securing the desired compression of the rubber, while at the same time said tread portion can expand or stretch longitudinally to permit the tire to assume its inflated shape without subjecting the portion of the tire opposite the tread to any appreciable longitudinal compression. I accomplish my desired object by making the stay strip of such a character that it is incapable of stretching transversely, but is on the other hand capable of stretching in a direction longitudinally of the tire."

It will thus be seen that the invention which MacDonnell disclosed embodied two features: First, an inelastic, nonstretching, transverse stay strip variously described as the "nonstretching qualities of the stay strip," "inelastic quality in a direction transversely of the tire is essential," "held against stretching in a transverse direction," and "incapable of stretching transversely"; and second, as contrasted with this nonstretchable transverse stay strip, an elastic, stretchable longitudinal stay strip, described as "on the other hand capable of stretching in a direction longitudinally of the tire." These two features thus described in the specification are carried into claim 2 here in issue, viz.: "A pneumatic tire of rubber having the material of its tread portion in a highly-compressed state in a direction transversely of the tire, and a stay

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