REPORTER.
tection of private rights? It seems so to me. No person shall be deprived of his property, any more than of his liberty, without due process of law. Now, suppose an execution should be issued on the decree, and should be levied by the sheriff 011 :the property of the petitioner, and it is so sold by the sheriff. The petitioner would certainly be deprived of his prpperty. Could he justly complain that he had been deprived of his property without due process of law? Where is the difference? One of the modes of enforcing the decree in question is, as I have said, by process of attachment of the person, and this was originally the only remedy for the enforcement of decrees of courts of equity. This mode was adopted by the complainant against petitioner, and I am unable to perceive how the petitioner is deprived of his constitutional rights any more by. the one process than by the other. And it will hardly be contended that the decree could not be enforced. by the. levy of an execution on or by the sequestration of his property. However that may be, the conclusion.I have reached, after fair consideration, is that the petitioner is not imprisoned, without due process of law; and that section 3601 of the Code of Alabama is not in violation of the constitution of the United States. As an independent proposition, I would have been inclined to hold that a. decree for alimony, such as was rendered in the case of Murray v. Murray, was a moneyed decree, and that section 3601 of the Code of Alabama did not authorize the issue of the writ of attachment in such case. But the supreme court of Alabama have decided differently. They hold, in effect, that a decree for alimony is not a moneyed decree, but that it.is a decree to enforce the performance of a duty, the non-performance of which is a wrong, quasi criminal; that it arises ex delicto; and that the writ of attachment is an appropriate mode of such decree. Indeed, they so decided in. the identical case of lIfurray v. Murray, 4 South. Rep. 239. I have neitherthe authority nor disposition to review that decision. My opinion is that no law or constitutional provision of the United States is. violated by the arrest and imprisonment' of the petitioner. I therefore have no authority to discharge him, and his.petition iadenied.
RUBBER
&
CELLULOID HARNESS TRIMMING Co. ". INDIA RUBBER CoMB
Co., (two cases.) Oourt, 8. D. Ne1JJ York. May 22, 1888. PATENTS FOB !NvENTIONS-PATENTABILITy-NoVELTY.
i:
In view of the English patent to Poole, in 1852, and the American patent to Dunham, in 1866, for covering metal harness trimmings with vulcanized rubber; of the English patent of 1841, to Harris, for dies for compressing and finishing plastic material; of that of 1857, to Green, for stamping tQe article pressed in of leather stitching; of that of 1852, to Poole, for pressing harness trimmIngs of vulcanized rubber under heat; of that of 1842, to Deakin, for pressing other plastic material for the same purpose; and of the
RUBBER &: CELLULOID B. T. CO. It' Pletal
v. INDIA RUBBER
C. CO.
499'
United States of 1863, to Welling, for plastic material on core for b,a'rness trimming-s.-there is no novelty In the device cove"ed , by reissued letters 'patent Nos. 5,155 and 5,156, jf November 26,1872. (original No. 123.603, of February 13.1872.) to Andrew Albrig-ht. for an improvement in rUbber,-coated harness trimmings, by the use of a pair of dies for pressing, polishing. and trimming the edges of the n;bber coating. so as to imitate stitching. .
In Equity. Bill tor infringement. J. C. Clayton, for complainant. EdwinH. Brown, for respondent. W AI,LACE, J. The two suits, pending between the parties, which have been heard together, are brought to restrain infringement of reissued letters patent granted to Andrew Albright-No. 5,155, dated November 26, 1872, and No 5,156, dated the same day-for "improvement in the manufacture of rubber-coated harness trimmings." These pate::uts are a reissue in two divisions of the original letters patent to Albright, No. 123,603, ,dated February 13, 1872. The original patent describes the invention to consist "in making a pair of dies for pressing, polishing, and trimming the edgeS of the rubber coating of harness trimmings, so as to imitate stitching, and finish each article without hand labor." The dies are described as follows: "The dies, are, peveled off at a and c, so as to form, sharp edges. These edges cut off the waste on the other side. e shows the indentations which produce an hnitation of stitches. The dies tOuch each other at x, y, z, so that they cannot crush -the article placed in them." The method of using the dies is stated to consist in placing the article to be coated in one of the dies, and pressing the other die down upon it, after the die or the article itself has been moderately heated, so that the pressure will finish the article. The drawings show dies with recesses adapted to form a rib,and the indentation, e, located in such recesses. The claim was as follows: "The construction and operation of the dies, A and B, with cutting edges, a and c, substantially as described, iug rubber-coated harness mountings." Reissue No. 5,155 describes the invention to consist "in making and using a pair of dies for pressing, finishing, polishing, and trimming the edges of the vulcanized coating of harness trimmings, such as rings, buckles, terrets, hooks, and like articles." The dies are described as provided with cutting edges for trimming oft' the superfluous coating, and the drawing is referred to as showing in the dies the indentations \Yhich produce an imitation of "stitching or other ornamentation." The specification contains this statement of new matter: "The form of the dies will vary witfl the form of the article to be pressed on them." The claim is as follows: "The dies, Aand B, substantially as described." Reissue No. 5,156 describes the invention to consist of" an improved process for manufacturing rubbercoated harness trimmings." The procE:ss, as described in this patent, includes applying theguni coating to the meta], the vulcanization of the coating, and the compressingand finishing of the coating by the use of the dies described in reissue No. 5,165. The ll1ailll is as follows: "The
500
FEDERAL
herein-described combined process of manufactu,ring metallic hl}rness trimmings covered with rubber, gutta-percha, or other known vulcanizable gums." The defendants insist that the patents are void for want of novelty of the invention claimed, and because the reissues are not for the same invention described in the original patent. These defenses, so far as they relate to reissue No. 5,155, were considered in a suit determined by the circuit court for the district of New Jersey in 1877, in which the proofs respecting the prior state of the art were substantially the same as in the present record; and the patent was. sustained. Ordinarily it would be the duty of this court to follow and adopt the adjudication of another court of co-ordinate jurisdiction in a suit upon the same patent ingon the same evidence; but since the time when the former suit was decided the line Qf demarkation in patentable novelty 'between mere mechanical skill and the exercise ofinvention in the adaptation of old strumentalities to a new use has been more strictly defined, and stricter rules of interpretation and construction are now applied to the claims of patents by the court of last resort. In the light of the more recent decisionsof the supreme court, it seems that the patents must be held to be void for want of novelty. The evidence respecting the prior state of the art demonstrates that the compressing and finishing of the metalcoated articles by the use of the dies, instead of by hand, was the thing, and the only new thing, originated by the patentee in the manufacture of harness trimmings.. It was old to cover metal articles with a coating of vulcanized rubber by applying heat and pressure; and old to cover metal articles of harness trimmings with vulcanized rubber.. ThiE;l appears by tha English patent to Poole, of 1852, and by the United States patent to Dunham, of 1866. Dies, fornled with recesses of every conceivable shape, and having walls to cut off the surplus material, were a well-known instrumentality for compressitlg, densifying, giving form to, and polishing plastic material. Dies having recesses to receive the overflow or waste material, and cut to ornament the article pressed, had been shown by the English patent of 1841 toHarris; and cut to stamp the article pressed in imitation of leather stitching had been shown in the English patent of 1857 to Green. .It was old to use diesih J:llaking articles of harness trimmings, such as rings, when made of vulcanized rubber, by moulding the article to nearly the desired form and ing it under heat to give it excellent finish. This is shown by l1nother English patent, of 1852, to Poole. It WaE;l old to use to compress and finish other plastic material,-such as horn suitably loops, hooks, and other articles of harness trimmings, as is shown by the English patent to Deakin. of 1842; and to use in inaking ar#cles of harness trimmings, in order to compress material .lipan .metal cpres, as is .shown in the United States pat!i'.rit of 1863, to Welling, for a. material made of a metal ring enveloped with Frolll this exhibit it is obvious that no inventive faculty was involved in, the conception that dies could be efficientlyemployed to mould" compress; imd finish vulcailized gums into articles of harness ti'iirimings,oi 'that
RUBBER & CELLULOID H.T.
co.
V. INDIA RUBBER C. CO.
501
dies could be constructed with recesses adapted to give such articles any desired form, and successfully used. But the patentee was the first to use dies for pressing and finishing sU\lh articles in which the vulcanized coating was compacted upon metallic cores. The novelty consisted in applying the old instrumentality to this new use. It is to be observed that the original patent described dies having special characteristics. They were not only to have cutting edges, but they were to be adapted to form a rib upon the article to be coated, and in1press imitation stitching upon the rib. The drawings show recesses lwd indentations cut to form such a rib and stitching, and the reference to the letters of the drawing in the claim incorporate this characteristic. of the dies into the. claim. But in the reissues the form of the dies is. no longer essential; they are to be of any varying form desired. As.ofnecessity the form must vary with the form oithe articles to be made,the interpolation has no significance unless it is intended to enlarge the cllj,im of the reissue so that dies formed to create a rib, or a rib with iruitatioll stitching, are no longer necessarily the dies of the patent. His in evi.delice that bMore the introduction of the treatment by dies the articles of rribber-coatedharness trimmings were made by covering the metal core or skeleton with soft rubber by hand, vulcanizing the rubber, and then turning, polishing, and finishing the article by hand; and it is not open to doubt that by using the dies such articles can be finished more quickly and economically, and can possibly be given more perfect finish, than by hand. NeverthEless, after it was known, or should have been known, that such dies could be used to com press and finish articles made ()f vulcanizable gum, as shown in the patent to Poole, and could be used to compress and finish plastic material surrounding a metal core or skeleton in making articles of harness trimmings, as shown in the patent to Welling, it would seem that nothing more was necessary to suggest the Use of them to compress and finish similar articles in which the vulcanizable guniWll.S to envelop a metal core. The dies do the same work, whether they are used upon Ilnobjectwholly composed of vulcanized rubber or upon the vulcanized coating of an iron core. In both iilstances their pressure is exerted upon a plastic material to give solidity and final shape and finish to the artiCle. It is absurd to suggest that there was anything peeuliarin the properties of the material to start a doubt whether it could be compressed by dies about a metal core. The bill is dismissed;
502
FEDERAL REPQRTER·
. SYRACUSE CHIU,1!lD PLOW CO. 'V. ROBINSON
et ale
.(Oirouit Oourt, N. D. Net/) York.
July 10, 188!l.
1.
PATENTS FOR INVENTIONS-PATENTABILITY-INVENTION-PLOWS.
The improvement in jJlows for which a patent was allowed to James L. Judd, by letter!! patent No. 281,810, on Augnst31,1880, and the object of which was to strengthen the union of parts of the plow, and save labor in grinding tbeir edges at the joints. is not a pa.tentable novelty, having been a.nticipated by the patent granted June 29; 1875, to Lewis B. White, whose specification recites: "On the wing of the frame is formed a rib, which comes directly at the junction of the share and mould·board, and fits in recesses made in their edges for that purpose, "-the two combinations performing the same func· tions, and the only differences being in size and shape, which, if an improve. mcnt, is one which a skilled mechanic would readily make.
S.
SAME:-INFRINGEMENT-PLOW POINTS.
The Judd patent, (No. 231,810,) for improvements in plows. one specification of which is for a" combination of ribs and chamfered edges in plow castings," and plow points made under which show a clearly defined groove to fit the rib, Is not infringcd by 8 sale of plow points. in which. though bav. ing a thin edge at the joint, the. slope towards the joint is hardly more perceptible than in many other plow points, especially where it appears that they will fit other plows as well as the Judd plow, and it is shown that plow points require frequent replacement. .
Action for infringement of patent. a. Wright, for complainant. , Geor[}e B. Selden, for defendants.
J. J. Greenough and E.
In Equity.
COXE, J. ,This is an equity action for infringement, based upon letters patent No. 231,810, granted August 31, 1880, to James L. Judd, for an improvement in plows. The object of the patentee was to strenghen the union of the parts of the plow, and save labor in grinding their edges at the joints. The second claim, alone alleged to be infringed, is. as fol. lows: "(2) The combination of the ribs, a, and chamfered edges, b, in plow-castings, substantially as and for the purposes described." The defenses are want of novelty and non-infringement. The patent granted to Lewis B. White, June 2\:1, 1875, if not. a complete anticipation, so limits the theater of invention, that the combination in question is devoid of all pretense of patentable novelty. In his specification White says: "On the wing of the frame, B, is formed a rib, m, (Judd's rib, a,) which comes directly at the junction of the share and mould-hoard, and fits in recesses, n, (chamfered edges, b,) made in their edges for that purpose." It also appears that White presented a claim for the combination of the rib on the standard with the share and mould-board, each being provided with corresponding recesses. This is almost the identical combination of Judd's second claim. White's claim was rejected by the examiners upon reference to prior patents, and was erased by his attorneys. It is true that differences in size and shape may be easily pointed out, but the functions performed by the Judd and White combinations are
