714
FEDERAL RErOBTEB.
NEW 'IJ. LAWRENCE.
(Circuit Court, E. D. New York. 1. RE-ISSUED PATENT,
September 16, 1880.)
No. 7,920, for an improvement in constructing' water-proof cellars, cisterns, etc., held void for want of novelty.
Erastus New, for complainant. E. H. Brown, for defendant. BENEDICT, D. J. This action is brought for an injunction, and to recover damages for the infringement by the defend. ant of a patent for an improvement in constructing waterproof cellars, cisterns, etc., re-issued to the plaintiff October 23, 1871, and numbered 7,920. Among other defences is that of want of novelty, and one of the questions presented under this defence is whether the plaintiff's patent is anticipated by a certain cistern made by W. H. Rankin, at Wilkesbarre, Pensylvania, in 1865, some five or six years before the date of the plaintiff's patent. On the part of the plaintlff the contention is that the cis. tern built by Rankin does not anticipate the patent sued on, because, as it is said, "it was not a cellar; it was a cistern. It was a contrivance not to keep water out, but to hold water in." As my conclusion upon this question is decisive of the case, I confine my observations to these features of the case, and proceed to call attention to the language of the patent sued on, for the purpose of showing its scope. The specifi. cations of the patent first state that "the invention relates to a new and useful improvement in the construction of sanitary and water-proof cellars, cisterns, vaults, reservoirs, and all under-ground apartments, for whatever purpose," whereby the bottom and walls of such cellars and other places, above mentioned, are kept in a sanitary condition, and are made perfectly impervious to water. This statement of the subjectmatter of the patent, it will be at once observed, referring as it does to cisterns and reservoirs by name, covers not only structures intended to keep water out of under-ground apartments, but also structures intended to contain water.
NEW V. LAWBENOE.
f15
The specmcations next describe the invention ss follows: The in\ention consists in the use of successive layers of roofbg felt, asphaltic roofing cement, associated with a layer of concrete or hydraulic cement, combined with gravelol other layers of equivalent material, applied as hereinafter more fully described. This description would seem intend'ed to convey the idea that a layer of concrete or hydraulic cement, combined with gravel, was one of the eSBential features of the invention. But this idea is dispelled by a subsequent statement that the employment of a layer of concrete is in all cases optional. It would seem, too, from this description, that the protecting wall or bulwark of mason work or other material suitable to aid in resisting water pressure, which is subsequently mentioned, was not part of the invention. But the subsequent portions of the specifications clearly point to such protecting wall as an essential feature of the invention, and these portions of the specifications may be considered as referred to by the words "applied as hereinafter more fUlly described," and in the description of the invention, and so intended to form part of that description.. The specifications, after having.thus described the invention, refer to an accompanying drawing of So cellar, and give So description of the method of construct,;. ing, first, the bottom, and then the walls of a cellar, aCMrding to the plaintiff's process; but pains are taken to have it understood that the scope of the patent is not limited to the construction of cellars, for the description of a ceHar, which is given by way of illustration, is prefaced by the statement: "My invention is not limited to the particular combination of the materials heretofore mentioned and used, as hereinafter set forth;" and is followed by the statement: "As already stated, I do not limit myself to the particular combination, and the application of Buch materials as hereinafter described. The especial and most useful feature in my invention is the use of the layer of roofin6 felt and the layers of asphaltic or roofing cement." The claim is in the following language : "In sanitary water-proof cellars, cisterns, vaults, reservoirs, and similar
7:U
-..-.
FEDERAL REP.ORTER. . , ' ., \
¥uderloground receptacles, .formed with a solid or suitable fo.undation of layers of roofing-felt and of asphaWc <If roofiD,gce+nent, substantially as I have above described, with a layer of concrete, cement, stone, or other suitable material, for the protection of the roofing felt and. asphaltic roofing cement, and to aid in resisting water pressure or noxious gases, where the same exist, substantially as for the purpose above set forth." 'rhis claim also, plainly enough, is not confined to struct· ures intended to resist water pressure from without, but is sufficiently broad to cover a cistern intended simply to contain water, whose bottom and sides are constructed in the manper described in the patent. ; I:q absence of any language pointing to a different con· these provisions of the. patent itself compel the c.1usio:Q tllat the patent .cannotbe understood to be confined to structui-es intended to; resist water pressure from without, contrary, it was ffamed with care, so as to.cover but seaure. to the patentee the exclusive right to construct ci8tl;lrns and cellars, by making the bottom and sides QUaytlrs 9£ r00fing felt, protected 'by a layer of masonrYI or otl;lp):'. material sufficient to withstand water pressure, within ox as ·the case may be. This.. understanding of the patent is, borne out by language In the original patent, omit· tfld in the re-issue, where it is said: "By this mode of construction, cellars, etc., beneath tide-water, as well as in other localities, may be made water-tight, as well as cisterns and r.es.ervoirs." The construction I have thus given to the plaintiff's patent is fatal to the present action, for it is prove a and not denied that the cistern made by Rankin, in Wilkesbarre, long prior to the plaintiff's patent, had bottom ana sides formed of lay of roofing felt and roofing cement, protected on the inrs side by a lining of brick-work. As to the methods of constructing this Wilkesbarre cistern there is no dispute, and the only answer that has been made to the fact is that Rankin made a cistern intended to hold water in, not a. cellar intended to keep water out.
BJORKQUJST VI'OERit'U!f STEEL RAIL CROP ENDS.
111'
But, if I am light in'my construction 'o{the patent, this no answer. Such a cistern; if made since the patent,would have been clear infringement on the patent as I have conIt. Having been made prior to' the 'plaintiff's inven'vention, it must, of course, be held to have anticipated it, and compels a decision that the patent is void for want of novelty. . This view of the case renders it unnecessay to consider any other of the various questions presented. The bill is dismissed, with costs.
is
a:
BJORJtQUIST
v.
CERTAIN STEEL
RUL
CROt>
(District Court, D. Marl/land. September 7, 1880.) : 1. CHARTER-PARTY-
DEMuRRAGE,:'-A l'The Cargo to be loaded and' discharged with all 'quick dispatch, 'as fast as the captain can .recelY8 and deliver." Dela, tJiat the charterers were liable for demurrage where the ves,sel W\l<S, fj:0U!the crowdeqcondition (he port, delayed in a berth. '.' . . . " . ,\ I ,
jInAdmiralty,' Libel for Demurrage' Brown <X Srnith, for libellants. 'Cowan'<X Cr088, for respondetits. ;MORRIS, D. J. The Russian bark' Bacchus, of which libellant is master, was chartered to bring a. cargo of' steel rail ends from Antwerp to Baltimore. She arrived in the }Jort of Baltimore on the fourth of December, 1879; and was ready to discharJe on the 5th. The Baltimore & Ohio Railroad Company was to act on behalf of the consignees in receiving the cargo, and notice was given on the 5th to its foreign freight .agent, who said that he already had information that the vessel had arrived, and had notified the holders of the bill of lading. The railroad agent referred the master to the company's wharfinger, who said there would be some delay, but that he would do the best he could, and would send a tug for the bark as soon as the berth for her was ready. The impor-