N02TRROP'S . EX'RS V. RASNER.
449
from the reissue of the words, "of 8 thickness of one-half inch or niore," did not really enlarge tne rights of the patentee, or abridge the rights of the public. Hencethe case is without the reason of the rule which prevailed in MiUer v. Brass Co., supra, and other like cases. Undoubtedly the inv.ention described' in the reissue is the same invention described in the original patent, and we think;the claim ofthe original and the first claim of the reissue are substantially identical, notwithstanding the omission in the latter of any reference to the thickness of the tubular sections. This view, it seems to us, is fully warranted by the reasoning and, conclusion of the supreme court upon the subject of reissues, as expressed in Eames v. Andrwlt, 8upra. - With respect to the introduction' into the claims of the words "or coated," We have no difficulty. Evidently "saturated" and "coated" are alternative expressions, to designate the same thing. To understand the meaning which the patentee attached to the word "saturated," to)ook into the specification, which, both in the original and the directs the "applying mixture to the to qause ;adb-esion." Beyond any question, it is to this application Ol:CQatiog the patentee refers by the term "saturated." "Saturated with a,dhesive IIlaterial" is .the exact language. Possibly he might have chosen a more apt word; hut, if he made a wrong selection, the slip is not fatal. No the specification can fail to discern h,is meaning. However, it i/:!satistactorily snown that while the gluten and starch of the paste, applied as directed by the patent, do not penetrate through the papyr, the ploistu!e does permeate it. that there is saturation resulting from the application of the adhesive mixture and the compression which . follows. .. All toihe second claim of the rdssue, little need be said. If no. eX,. pansioIl;.qf the qriginal claim is to be found. in the first claim of the re-, issue, is. none in the claim, forit contains a limitationnopn the original claim,by reasono(the introduction of the words "divided, longitudinally" /!ofter the \Vords "tubular Let ,8 dei,l1 favor. of the plaintiff. cree be
""e
NORTHROP'S
Ex'Ra ".RASNER et ale
(OCrcutt Oourt, W.D. PennsYZvanta. December 10, 189L) L PATENTS POR INVBNTloNS-mVBNTION-,),[e·ULLIO.CBILINGS;
.. BAMB--E;x.TIllNTOll' CLAIMS-PRIOR ART;
v.48F.no.6-29
450 It:
FEDERAL REPORTER, . .' ,
vol. 48.
.
These claims are not. infringed by a' ceiling composed of panels fiat. designed to overlap each other, and to be secured t.o the furring st.rips by nalls, ' and having mouldings sit.uated inside the. edges,and roset.tes at. the corners of t.he I ,1'&l1 e1s. . ,
The billalleges infriqgement ofletters patent 'No. 330,916, being for an improvement in ceilings, issued November 24., lS,85, to, Alpert Northrop, the complainants' The ceiling constructed wider this patent is composed of panels, each panel moulding on each of its sides. As stated in the specification: is curved so form /!o,channel, and. as the mouldings are CQup,terparts of each other, the moulding'on the edge of Oile panel will fit wi,thin the moul4ing op,the adjacent edge of an adjoining panel, and hence any number of the panels,tnay be interlocked with one another. The mouldings at the oornersof the panels are cut away, and hence when the panels are put together au,opening is fOl'med aUbe junction of the corners of four panels." At the corners rosettes are fastened to conceal theopehings; and the panelsal'e set:ured to' the ceiling or to t:u stri ps by fastenings pasS-: ing the curved channels. When put in place there is formed between 'the 'panels, by the curved mouldings, gutters or channels into which any water leakitlg from above. will gather, running off at the openAnother ings at the corners of the panels withont injury to form Of panel i'J also described inthe specification,having curved mouldings on t;wo edges, and upon the opposite edges straight flanges, so that, when }lut together, the flange of one panel rests in the .curved moulding of the adjoining panel. .There is thus fOrmed a gutterforthe collection of leaking water, which runs oft' at the panel corners, and 01 the same time, as stated in, the specification, provision'is'made for expansion and con· traction of the 'panels, tile flange resting'I,008ely in theculved moulding. Defense is made that the patent is invalid for lack: of invention, in "iew of the prior state of the art, and reference has been made to certain patents for metallic roofing. Without discussing this defense at length, I need only say that my conclusion is that the patent shows invention, and that the of,vl;lliqityhas not been,overcome by the de'. '.'" .." '. fendants. The 1st, claims are. alleged to be infringed by defendants' ceiling.' They are: . .. (1) A metallic ceiling. consisting each baving a curved 'or four the. mould,ingsbeing cut a at thecurners qf set A metallic of panels, hav,lI1g their sides {two or more) provided with .chan neled mouldings. thellornersoftbe panels being C1lt 'away, SUbstantially as se.t forth. (6) A miittdllc''CellUlg'cohaisting panels. each having a <l"l1rved or channeled moulding on two or more of its sides; the panels being.cutaway atthecorners.< rosettes ,!or,cpverillg and way portioIlS,li ubstantially as set forth... i
. REED,
NORT,$nOf's, EX'as .11·· RASNER.
451
In view of the prior state of the art, and of the patents referred to, improvements in the kindred art of metallic.roofing,these claims must be strictly construed. The defendants' ceiling, which it is alleged infringes, is constructed oLpanels. panels are'stamped into the shape desired for use,and, in the exhibits presented on argument,have an orna;mental center s\}rrounded by fr.ldulding, outside of which is a flat edge, called by defendants' witnesses a "stile." In putting up the eeiling, furring stripe are. first naile4,:to the joists, and the panels are nailed to the furring strips, the flat edges or stiles overlapping in such manner that the joinder of the panels is concealed. At each corner is inserted a rosette, which serves no other purpose, apparently, thanthat of ornamentation. No channel is formed by the edges of the panels for the purpose of carrying leaking water from above' to any place to discharge, although, doubtless, the edge.s of the panels and the corner openings, where the rosettes are inserted, being lower than the main body of the panel, water would run to these points and leak through. The edges olthe panels, however, fit closely to the furring strip, so that no open channelis formed by the edges. In its construction the ceiling is more like the construction of the roof under the patent issued to Robert Sanderson, No. 120,900, in evidence, than like that under complainants' patent. To hold the defendants' ceiling an infringement of the claims of complainants' patent would seem to require the finJing that the latter patent is anticipated by the 'Sanderson pl1.tent, at least to the extent that no invention was involved in the complainants' ceiling. But I think they are not alike, and do not think the defEmdants' ceiling an infringement upon the complainants' olaims. The defendants' ceiling can be constructed quite as well with flat panels, overlapping at the edges, and nailed to the furring strips, as it can with panels containing the ornamental stamping. The ourved mouldings used by defendants are within the panel, and not on its four sides, nor are the mouldings out away at the comers of the panels, asset forth in the claims. Itmay be, as argued by complainants' counsel, that the word "mouldings," as ordinarily used, is broad in meaning to include what the defendants. term a "stile;" but as used in complainants' patent it refers to a specific thiug, namely, the ourved or flanged edge of the which interlocks with that of the adjoining panel, and which is the pecUliarity of construction of a ceiling under complainants' patent. This I do not fi'nd in defendants' ceiling. In my judgment, there has been no Infringement, and' the bill must be dismiSSed, with costs. Let a decree be drawn accordingly. '
452 LALANC]C
DDERALREPORTEB,
vol. 48. CO. t1. MOSHEIM.
GROSJEAN "MANUF'G
(Oircwlt CO'Urt; S. D. NeW Yor7c. December 26, 189L) , J'
' i ,
PATB1f',r8 1'OR INVEl'lTIONfl-INFRIl'lGEMJINT-DBMURRER TO BILL-JUDICIAL NOTIOlil. ,
When a bill for infringement is demurrl!ld to on the ground that the patent on its faoo Is void for want of patentable, invention. in view of old and well-known devices, court will not take Judicial notice that certain similar articles exhibited at the argument were in use before thEl date of the patent, when it has the slightest doubt , tllat Buch was the fact. ' ,
,
Equity. Bill by Lalance & Grosjean Manufacturing Company IJgainst JuliusE. Mosheim for infringing a patent. Heard on demurrer to. the bill. Overruled· .Arthur v. Briesen, for complainant. Robert N. Kenyon, for defendant. COXE,J. The defendant demurs on the ground t,hat complainant's patent is, o,n its face, vojd for want of patentable novelty in view of old and well-known devices of which the court will take judicial notice. The patent No. 285,645 was granted September 25, 1883, to Milligan and for an improvement in enameled iron' wash-basins. At the argument various structures' alleged to have been in use long prior to 1883 werep:r:oduced, which, if properly proved, would strongly tend to support the defendant's contention. Though many of these, certainly, had a familia:r appearance, the court could hardly say with absolutecertainty that such structures were inexistence prior to 1883. The authorityof a judge to substitute his knowledge for legal proof should be exercised with, the utmost caution and only in. the plainest cases; 'If there be the doubtit is by far the safer'way to permit the cause to, in the usual,manner. Bll'ssing v. Oopper Works, 84 Fed Rep. 75!3;EclipM;(Jo.V, Adkins, 36 Fed.:Rep. 554; Standard Oil 00. v.Souther:n Pac.C'Q.,,42 Fed. Rep. 295.' In New York BelfJing&: Packing OJ. v. New Rubber 00",137 U. S'. 445, 11 Sup. Ct. Rep. 193, the question of patentability waS presented by a demurrer. Thesupreme court say,: , "We ibins,that the demurrer should have been overruled. and that the defendant$ lil,hould have been put to answer the bill. Whether or not the design is new a,9,uestion of fact. which, whatever our impressions may be·. we do not think i.t vroper determine by taklng,judicial notiee,ot the various designa which may'have l!OmeJutider·our obser'Vation. It Isa question which may and should be raised by answer aDd settled by proper proofs." . ' The other point-that the claims are void in view of the state of the art disclosed by the patent itself-involves a construction of the patent which it would be unsafe to undertake in the absence of explanatory proofs. For these reasons the demurrer must be overruled.