87S-'
nDERAL" mORTER, ,,"01.4S.
heen. boldrJ6!his as' a ,penslbn agent, extorts a ,sum In excess of has prescribed wh<> retams 1t shall be pumshed; and so, also,wsectlOn8169. tnereriSa plainer illustration of what congress uriderstood py extortion. andOfwpat'wasintended to bejncluded in that word. This section internal revenue law, and provides that every officer or is a who is of any extortion, or who knowingly' other and gr'eatersums than are auth,orized by law, or who fee or corupensation, etc. Now, certainly, in framing it was not understood by congress and the that mere taking of money in excess of the lawful fee, was the same thing; foriJlthis i,Patance" after mentioning extortion, they have gone a step expressly for a person who knowor receives any fee, compensation; or reward except as by law On this alone,that there is no proof that the money paid by Capt. Sprague, I think the motion will have to if yoq have any other evidence to offer, to reopen the case, I win allow you to ,do SOj otherwise I sM,n.Wl-ite out the forin of verdict for the jury. ':: ,', ',:. :'1" ;.; .. '-,"; ,
,Vetdict,'!iot guilty. ,.
'.
KELLER,. et
at
tI. STOJ,ZENBAUGH
et
aZ.
(pircuit
oCYWrt. W.,D.
June 9,1890.)
L PATENTS PO:RtNVll-NTIONs-INPRINGEMENT":-DBllDGING MACBINEB. A claim in letters patent for "the combination of a dredging apparatus for dredg· ,1ng and elevating the mllte,rial, screen for seplloratillgthe material, and a device , for elevating and discbarging the water into the soreetl, sl1hilt8;ntiallyas speoified. II held. to the use of a water-jet pipe pll'06d direotly over the screen, and lengthWise of the same, from which raised from tbtl river by I!leans, of a pulsometer was ditloharged dirtlotlyon the top and exterior of the revolving Be1'een. , , I.SA1oIll-DAJUGlilSo ' , ' , ".' ' , In assessing damage. for a brief infringement of a patent, an estabUshed. Ucense fee is not to De &dOpted'8S the llorbitrary standllord, but should be used as affording proper in connection with the qUalifying oiroumstances of the partioular ' oase, in the asoertainment of the plainti1f's aotualdamages. ' ,-, -'-'-, -; -,:\) It
In pursuance ofa written stipulation thlscase was tried by the court without the intervention of a jury. The following facts are therefore found by the court : First. On'the 17th day of August, 1875, the lettel's patent here in suit, and in lieu of being reissueNCl: 6,598, were Issued upon let'ters'J,)atent No.''126,968, dated May 21, 1872, to J. Keller, for an in ,sand and:gra:ve1 separating one machmea,the first claiIn of saId re1ssued letters patent bemg as follows:
At
KELLER". STOLZENBAUGIL .·.
879
, U{I) The combination of a dredging apparatus for dredging aud elevatlnlt lllaterial. a screen for separating the material, and a device for elevating and water into the:screen, substantially as And· the claim being in the following words: "(3) The combination of a cylindrical screen, suitable devices for elevating water, and the material to be. separated and feeding the same to the screen, fl receptacle or receptacles fol' the material which has passed the screen, and au elevatJr ot elevators. for carrying away the sci'eened material." Thesaid letters patent are made part of this finding the same as if b.erein recited at length. SeCOnd. On March 31, 1883, by an instrument of writing duly executed, Nicholas J. Keller assigned to his co-plaintiff, Thomas R. Williams, the one-half or said rl'liS8Ued letters patent, and said assignment was recorded in the patent-office on April 2, 1883. In October, 1888, .the defendants placed on their dredgingboat, caJI.ed the "Progress," two sand and gravel separating machines, <me on each side of the boat, and thenceforth until the expiration of the patent on May 20, 1889, used. the same upon said boat in the course of their business within the western district of Pennsylvania, for elevating sand and gravel from the river-beds, and separating the material so raised· .E ach of said. machtines was provided with a water-jet pipe placed directly over the screen, and lengthwise of the same, and water raised from the river by means of a pulsometer was discharged from said pipe directlyon the top and exterior of the revolving screen. this device as a constituent, each of said machines contained and had in use the combination described In and covered by the first claim of said reissued letters patent, and the combination described in and covered by the third claim of said reissued letters patent. Fourth. The defendants'said two sand and gravel separating machines were of a construction similar to that shown by the drawings of letters patent No. 324,158, granted on August 11, 1885, to Philip M. Pfeil, and their avowed object in using the pulsometer and water-jet pipes for raising water and discharging the same upon the screens was to clear the sieve of small grains of gravel which sometimes get wedged into the meshes of the s,creen, but, In fact, by means thereof, the water was fed to and discharged through the sie..e into the screen in such quantity and manner as to aid materially in washing and separating the sand and gravel, and in preventing the tendency of the screen to clog, and in assisting in the discharge of the refuse matter. Fifth. The plaintiffs had an established license fee of $1,000 for the use of one of their aforesaid patented machines, D. F. Patter8Dn and Wm. L. Pierce, for plaintiffs. George H. Ohmty, for defendants.
ACHESON, J. Whatever may have been the real purpose of the defendants in using the pnlsometer aoel the water-jet pipe, the effect of the discharge of the water npon the top of the revolving screen was as stated in the fourth finding of fact. Indeed, with the amount of water used, it is
880
FEDERAL REPORTER,
vol. 43.
not easy to see how the resuIt could be otherwise. The conclusion above stated upon this question of fact is, I think, fully warranted by the evi· dence. Now, to hold that to constitute infringement the water must enter the screen at the end where the material to be washed enters, would be 8 very narrow and unreasonable construction of the· patent. The claims are not so limited in their terms. Manifestly, if water in sufficient quantity is elevated and then feoto the screen through the upper side thereof as it revolves, the beneficial result of the invention is attained substantially in the manner contemplated by the inventor. It is here worthy of note that the specification states that a steam siphon pump may be used the water, either as an adjunct to the chain and buck· ets, odn place thereof; as may be found desirable. And the specification describes the discharge of the water as "at or about the same point as the buckets of the elevator B discharge theIr contents, "-the material to be treated. I am'of the opinion, then, that the defendants are liable as infringers of the plaintiffs' patent. Upon any fair construction of the contract, the licenses in evidence, I think, only conferred each the privilege of using one patented machine: and as the defendants had on their dredging-boat two machines, they would be chargeable with two license fees, if the established fee were adopted as an arbitrary standard of damages. But I am of the opinion that while the license fee affords proper guidance in the ascertainment of the damages, yet regard should be had, also, t<> the qualifying- circumstances of the case, to the end that the finding may be for the actual damages sustained by the plaintiffs, agreeably to the principles announced by the supreme court in BirasaU v. Coolidge, 93 U. S: 64. Now, the infringement here, 'it would seem, was not characterized ,by a1)Y bad faith, and it only lasted about six months, and this included the winter season. It seems to me, then, upon much reflectiol1,that the sum of $1,000 in full compensation of the damages sustained by the plaintiffs, would be a just and reasonable allowance. And now, June 9, 1890, the court finds in favor of the plaintiffs, and that the defendants infringed the first anel third claims of the reissued letters patent sued on, anel that as and for their damages the plaintiffs . recover from the defendants the sum of $1,000. Let judgment be enin the sum of $1,000, tered upon the finding of the court for and costs.
AMERICAN SPLIT-FEATHER DUSTER CO. 17. LEVY.
881
AMERICAN SPLIT-FEATHER DUSTER
CO.
11. LEVY.'
(Ctrcutt Court, E. D. Pennsylvania. .Tune 18, 1890.)
1.
PATENTS POR INVENTIONS-FEATHER DUSTER-LAOK 01' INvENTION.
The patent was for a feather duster. suitable for use on line furniture, composed of stiff hard feathers split and manipulated, to render them soft and pliable. The process of splitting and manipulating employed was old, though not previo1l,sly applied to the particular kind of feathers used, and not carried to quite the same extent. Dusters made of soft feathers were also old, ail was the idea of softening stiff feathers for this use by other. means. patent was void for of invention, as the patentee nas only substituted one known kind of soft feather for another. Following v. ManuJacturling Co., 118 U. S. 59, 5 Sup. Ct. Rep. 717.
2.
BAME-INVENTION.
That efforts to soften stiff fea.tbers for dusters bad previously been madll by the application of oil and other substances does not show the patent called for an invention, since the result obtained was such as anyone skilled in. the art, and desiring a cheap pliable" feather, would be likely to reach by common reason and observation.
Bill by the American Split-Feather Duster Company against S. Levy to Enjoin Infringement of Patent. Watson & Thurston, for plaintiff. Horace Pettit, Frank M. Wirgman, and Alexander P. Colesbury, lor defendant, cited on the point decided, Smith v. Murray, 27 Fed. Rep. 69; Guidetv. Brooklyn, 105 U. S. 550; Matress Co. v. Whittlesey, 8 Biss. 23.
BUTLER, J. The suit is for infringement of letters patent No. 385,070, granted to Guilbert M. Richmond, June 26, 1888, for "improvement in feather dusters," the claims of which are as follows: "First. As a new and useful article of manufacture, a soft light feather duster made of stiff heavy feathers reduced in weight, and rendered more pliable by splitting or shaving off their ribs, substantially as described. Second. As a new and most useful and perfect article of manufacture, a soft, light, and flexible feather duster, made of stiff heavy feathers, rendered soft, light, pliable, and elastic, by the removal of the ribs of their shafts, and withing the backsthereof, SUbstantially as described." The defeilsd assails the patent on several grounds, the most serious of which is, probably, "want of patentable novelty." The history of the art shows that feather dusters have been made time out of mind, and of vl!,rious kinds of feathers; that for fine dusters-used on cloth, furniture, etc.-the feathers must be soft and pliable, and that, prior to 1873, feathers for such dusters were obtained from the ostrich and South American vulture; that these feathers are, comparatively, scarce, and the brushes made from them expensive; that before and at the time of Mr. Richmond's alleged invention, efforts were made to find a substitute for these feathers, less costly, and experiments were made with the wing and tail feathers of turk ys. Being (comparatively) stiff and brittle in their natural state, unsuccessful attempts were made to remove this objection1 Reported by
Mar;k Wilkll. Collet, Esq., of the Philadelphia bar.