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.
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DIJERAL:REPO:RTEB,
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able feature, by the application of oil, and other substance$; that a process for in6reasirig, the softness and ,pliability of feathers· had long been employed, which consisted in splitting, scraping, and manipulating in various ways.;.that feathers,so h'eated were used in,·themanufacture of tufts, plumes, and other similar devices. This much respecting the art is certain,. if not und'isputed.. The'defendant further' asse,rts that the coarsef'e8.thets onurkeys were so and used in making dusters, prior to. 187'3, and has produced someevidenceili support of it. Whether, he 'has proved the assertion.need not be determined at present. , Mr. Riah1D?f:ldr applied this of to the tail and wing the manipulation a Jittle further, probfeathers ably,-and used them in the manufacture of dusters. By this means he obtained a soft, pliable a!;,tiqle"which.soon became popular, and · thereby great,J.y the price orune dusters. Does his art display patentable'1'1ovelty? In Qther w.ords, was invention required 00 do what he did?Whafconstitutes patentable noveIty or invention, as contemplated by the patent law, has been so fully and repeatedly,discul3sed in the ,numerous cases in which tbe question has arisen, that further elaboration would be waste of time. Two-thirds, probably, of all suits brought to enforce patents, have involved it, and ·more'time has been employed its elucidation than has been expended on any other question of patent }a.w. . As is said by the supreme court in Ilollisterv. Manufacturing Co., 113U. S. 59) 5. Sup. Ct. Rep. 717, a. device which displays only the expected skill of the maker's calling, involves only the exercise of ordinary faculties of reasoning, upon materialsupplied by special knowledge, and facility of manipulation resuiting from habitual inwlligentpractice, is in no senso a creative work of the inventive faculty, and such as the constitution and patent laws .aim to encourage and reward. It is something, as the court further says ,at page 72, which springs" It'om .that intuitive faculty of the mind, put forth in the search for new results, or new methods, creating what had not before existed. or bringing to. light what lay hidden from vision." In other wotdB, it is a new thing prOduced by the exercise of th$ inventive or creative faculty, and not by the employment, simply, of common ·reason applied to existing and known facts. In this view of the law did Mr. Richmond's act require invention? He had before him, as we have seen, feather dusters of various descrip.tions, erribTllicing those made oisoft pliable feathers. What he did, substantially,' was to substitute one kind of soft 'pliable feathers for another. If the substituted feathers had. been sufficiently soft and pliable in their natural state, he would hardly claim that the substitution required invention. His claim 'seems to reston the fact that he dressed feathers so as to increase their softness and pliability and substituted these. If lIe had been the nrst to discover and employ the process of dressing, his claim would find support in that fact. But, as we have seen, he was .not.. He probably carried the process a little further than had previously been done, rendering the feathers a little more pliable; though this is disputed. If he did, it is unimportant. The most he can claim
AMERICAN 8P;t.JT-FEATBJIlR· DUSTERcn .,. LEV!'.
888
is that he was the first to apply such dressed feathers to the manufacture of dusters. While this aJ.!Io,i!l ,disputed, I will treat hitn as entitled to the claim. As dressed feathers were old, how does the substitution of them differ from the substitution of othet suitable feathers in their natural state, (if such could be found?) It is true he did not use feathers by others, nor dress the same kind others dressed. He used the coarse feathers of turkeys. If he had used those dressed by others, and found on sale, he would hardly claim that his act embraced invention, or novelty even. He would simply have substituted one soft plio able feather. for another. . Then did it require invention to apply the, old procesS of dressing to other feathers, and substitl1te these, instead of the dressed feathers found on sale? Substantially this is all he did. He was not th,e fir!lt even, as web.aVe seen, to conceive the idea of softening and applying coarse feathers to this use. The only problem, whE'llhe 1:>egap,wa.e how can, such, Jeathers be softened and rendered pliable. While others were experimenting with a view to its solution, he applied the old familiar process of splitting and manipUlating. 'With, every disposition to sustain the patent, not only becausd of the presumption arising from but also and more especially because ofthebenefit which the patimtee conferred upon the pUblic,lam unable to findanypattlUtable novelty'in what he did. There .does not seem to be anything like invention about it. What he accomplished was the result, simply, of common reasoning from existing known facts,-such a result as anyone skilled in the manufacture (if dusters, and desiring a cheap pliable feather, would be likely to reach. To say that others did uot, reach it ill not anansw:er: An obvious result, attainable by observation and ordinary reason" i$ often overlooked for a time,---cas in the case of the revenue stamp, iniVolved in Hollister v. Manufacturing 00. The importance and value, of the result there Waf! greater than here. NeverthelClls (and notwithstanding the ingenuity displayed by the patentee, and the fact that others had sought for and missed it,) the patent was declared invalill. A reference to the general remarks of· the court in that case is to dispense with further OD: ,the subject here. As this view disposes of the controversy, an examination of other raised anddiscussedis unnecessary. A decree. may be prepared dismissing the bill, 'with costs. <
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J'BDERA.L:BEPeBTER,
MCCA.RTY
et ol
11. LEHIGH VAL.
R. Co.
{Oircuit Oourt, E. D. Penn8'l/lvania.' June 20, 1890.)
PATlIlNTS FOR
, Metalli'ccar-truck bolsters haa been madE', consi,llting' of a iltraightlower bar and an arched upper bar, seoured. at the :.ends to the ends of the lower bar, and rigidly car-truck. ,SoUd bohlter,s Aad been placed upon springs in the carseoured truck to'secure a "floating" motion of the bolster, and were held in their place by guides permitting an up and down motion. Held no invention involved in to the rigid lower-bar fllJ,nges,to secure the ends of the, upper bar, and gUldeplates'to place wedge-shaped pieces between the bars, and to place this construction upon springs in the same manner 88 the solid bolster had formerly been placed. A lower bar of a car bolster, having its ends turned up and laid back to support the upper bar, is an equivalent of a fiange attached to the lower bar for the same purpose. " Truss-rods between the bars of a metallio bolster are not inventfon, and had been used in the Roberts bolster. , , :
BOLSTERS.
lil.
SAME-EQUIVALENTS.
8.
SAME-INVENTION-TJtuss-RoDS BETWEIIN BAlIs.
Bill in; Equity by Harry C. McCarty and John F. BickeLto enjoin the infringement (lfpatents 339,913 and 314,459" against the Lehigh Valley Railrpad Company. No. 339,913; which was first applied for, contained truss-rods as an element of the combination, which were not contained in the,other. Jerome Oarflg, for complainants. Andrew McOoUum, for defendant. BUTLER, J. The two patents in suit are for substantially the same combination, except that the last applied for (though first issued) omits the "truss-rods" described in the first application. While both are, in terms, for an "improvement in car-trucks'," they are actually for an improvement in "truck bolsters" only. Tlieimprovement consists in forming a bolster of an upper and lower metal'bal'; the latter being the excess of length straight and a little longer than the turnAd up, or "flanged," at the ends, to form a ,support for the other; the upper being arched from near the ends, whichare straight, and rested against'the "flanges," on the lower. The bars Itre seoured in position by central upright columes, short intermediate wedge-shaped blooks, in... serted near the ends, and by bolts where the ends unite. Under the ends of the lower bar "guide-plates" are fastened, to keep them in place over the springs, on which they rest. This relation to the springs imparts to the bolster a swinging, or "floating," motion on the truck. In the first application, (and the patent issued thereunder,)" truss-rods" are, also, called for. The defense assails the patent, (for lack of invention,) and also denies infringement. The history of the art shows that "body bolsters" (so termed in contradistinction to truck bolsters) in form and general structure, similar to complainants' bolster, had long been in use, and adapted and applied 1 Reported
by Mark Wilks Collet, Esq., of the Philadelphia bar.
to trucks,' before the coni plainant's alleged invention.
The "Naugatuck truck bolster" is of this description; and differs from the complainants' only in fhe absence of Ilflanges" on the. lowerbar,t the wedge-shaped blocks, and the" guide-plates." It was fastened rigidly upon the truck; the springs being placed over the journal bearings, imparting a swinll;ing motion to the. carriage on which the sides of the bolster rest. This his.. tory further shows that bolsters compoSed ·of single, heavy straight bars or beams, with the elids resting on springs (so as to allow them to swing,) arid kept in place over the springs by guides, had long been used. Such were the II Diamond bolsters." It is thus seen that what the complainant did was to transfer the "Naugatuck bolster" from its rigid situation to that of the IlDiamond," and add flanges! and guide-plates to the lower bar, and the intermediate wedge-shaped blocks. Did this require invention? What 'constitutes invention, within the meaning of the patent laws, as has been said in Duster Co. v. Levy, ante, 381, (decided by this court at the present term,) has beensa fully and completely discussed in the numerous cases in which has arisen, that further elaboration would be waste of time. Two-thirds, probably, of all suits brought to enforce patents, bave involved it,and more time has been employed in its elucidation than has been expended onany other question of patent law. As remarked by the supreme court in HoUister v. Manufacturing Co.,.1I3 U. S.59,5 Sup. Ot.Rep. 717, a device which' displays only the expected skill6f the niaker's calling, and involves only the exercise of the ordinary faculties of reasoning, upon materials supplied by special knowledge,a.r'id facilit1 of manipulation·resulting from habitual intelligent practice, is in n6!sensea'creaHve work of inventive faculty, and such as the tion and the patent laws aim to encourage and reward. It is something,as tbecourt 'says, (at page 72,) which springs from an faculty of the mind, put forth in the search for lle,,, results, 01" Iie\vmethods, creating what had not before existed or bringing/tO light'wbat 18:1 hidden vision." In other words, it is a new thing prodUced' hy the exercise of the inventive or creative faculty, and not by4:he, employment, simply,· of common reason, applied to· existing arid· knoWh facts. In Hollister v. Manufacturing Co.· the improvement involved' exhibited great ingenuity', and- was of much value, ahtli't"et ,the · . court held it to be without patentable novelty. In this view of the law, does the complainants' improvement show .inv,eQtion? .. Surely the transfer of the" Naugatuck truck" to the situation of. did' !,lot require invention. The ad vantages of resting, the bolster/on' springshadprevioesly· been discovered,. and the ,method of doing it successfully been applied. All else the complainant did was to add the "flanges," the "guide-plates," and the wedge-shaped blocks. I am unable to see any especial advantage arising from the latter; addi1 I also flnd, on closer inspection of the "Naugatuck" bolster exhibit, the I think, of complainant's "flanges." The ends of the lower bar are turned up and laio back, SO' as to meet and support the ends of the upper, serving the same purpose as the "flanges." The latter must therefore be regarded as old.
·
V .43F. no. 5-25
RT any
rlq, .dJff13r fraIP the ' purpose.' ''l'Rey) ,q,r!l to. keep the. ends ip the. ·. Tbespgge.sy;q\l that they afford force. .as. by thickness of the ellds Qrt4.e;lC?:Wflr bar, . or a<Nipg llln bllr Of Pl*l.ides. qftb{l support!., useful, as they serve to reinforce the bolis, thus· aiA., in 'maintainillg.. thl3! of. t.be: ·.. ,But. flaIlgE/s are old anq!coroUlon !,<pplied tq uj:lelh I think a,IlY rq{.qrqinary .I'l;kill.ip work, directed to, reillfqrce . fWod: sec,Urity to. would patelltee of pJ di<i. be theJIlQSt obvi()ua, .: . " . ' . " ,. '. . . .. the em... also. old . and weN ip common for simi)aI;struGh the them. previ()usly used ,theiraPuHca,tipn. to would llotrequire in· tiop ", .use would, to thll old.,. .And., .to the, of tpeir ,predisposHi,(jl1W patept,becf,Luse of the. the 'Pf,LWptee's .work has sam. P'lw4t"I W,do ,80. WhetP..er the pl;trts of the C91i1sidereq or iq cornbi:nation, I, cannot find patentin ,what the, patelltee di<i. . . . .... .". . . towhioh cOlAplaina:ntappeals, Oll of iMl'.,?t!ontz'lj1,appliqatioll for a .cj)v,eripgsubstantially tbe saDle· the it,doeEl not apply( Without CPn" M<mtz, it is sufficient to say .that·the reapoppenl l1()t an.disl,tlotboun.d"by bis'llqt8.,; The circum.. at the, time is, qnimportant. 'lie was in tl;lepatent JIis appliMtion ;respeQtingit,fwere QQ., his Qwn Il<:CQunt.· .4 4ecree may be' prepared accordingly. I" · · On re-examillation of thll.llxh1blts. since the toregolns: opinion was I bd further ...rods" arelahowllbn the old Bobet1l8bOlswr; and in m.' KOCilrty'. ' he faYlI· rods... . . . ; : V,i', 1
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... YOUNG V.J'ACksON.
et Ii
al. ".
JACKSON.
(CCrtU«t COUrt, So D.NtlWYO'I'7c. July 81,1890.) ' .·
P.i'J,'BlIITB ,:I'OR INVBln'I01ll8-NoV,EL'rY-MAClIINjC I:fOB SAWING STONK.
patent No. 2Z2,720, issued February 17, to Hugh Young, fol' bn· provements in 8 machine for sawing stone, consistinK of the combination with a saw-gate means for feeding and withdrawing the saw-bli\de towards 01' away from the guides governing its reciprocating motion, without impairing the . pa·rallelism 01 the saw.blade to the guides, are void for want of noV'· el1;y, ,beiQg merely such a combination of different inventions previously · as to allow each to work out its own without contributing any new function mode of operation to. the other. .
:In Equity. Bill for infringement of patent. Edwin H. Brown, forcomplainanta. George Whitfield Brown, lor : WALLACE,J. The patenUnsuit, No. 222,720, granted February 17, 1880, to Hugh Young, covers improvements ina machine for sa.wing· stone. The invention to which the first claim of the patent relates eonsists,as;thespecification states,Hin certain novel constructions and combinationsof parts, whereLy a reciprocating saw-sash, moving along guides, the. saw has combined with it meal1S for the feeding and toward or away from said guides." That claim, which is the only olaim now alleged to be infringed, isns follows: .. In machin!'s f,'r sawing stone, the.comhination, with a reciprocating sawgat('lor sash. of means for feeding and Withdrawing the saw-blade toward or away frornthe guides.gQverning lts reciprol'ating motion without impairing . the parallelism of the saw-blade to said guides, substantially as . As des9ribed in thespecificatiqn. "nd illustrated in the drawing, machine consists of a main frame and a secondary frame or saw-gate. The saw-gate or sash is the ordinary rectangular frame in which mill saws are stretched, formed of two ends, each of which is composed of two posts,and,the ends la,l'econnectedbyatrausverse bar. The ends of the saw-gate are supported by guides .attached to the main fraine,which allow the gate to be reciprocated on the line of the guides. The reciproby any suitable mechanism. The sawcating motipn gate carries a blade, which is set in a :plane parallel to the guides, and is attached to carriers capable, of being moved within the gate to and from the. direction of tbe guides. The specification states: "1'JlI'l blade is not gate. but by carriers, which are arranged so as to be capable pf a,synchronous movement within t,he ends of of a movement in direction at right angles, or the, gate, or, in other thereahouts, tothe reciprocating movement of the gate, to effect t.lle feed and withdra\'t the .blade, and this without affecting or interfering with the parallelismofthe blade to the guides. It , . " 'TIle arrangement ofthe (?arriera which permits this iO'patt of the posts of the' gate ends,wh,ch serve to guide the carriers; and. ,alloW,them to play ina plane at right angles to the guides, and in part 'df-tbe 'devices foractliating them: sIrU1l'ltaneously and -on a-perfectly