2'16
FEDERAL RE:PORTE:R, \101.
51.
MASTEN fl.
HUNT et al.
(OircuU Oourt. D.Massachusetts. June 29, 1899.) 1. Lettert\ No. issued July 7. 1885, to Cornelius E. Masten for a firecracker, covers, in claim I, "the match, B; and fuse, C, in cotnbination with the solid pIug,n, and body, A, sUbstantially as set The,specificati()ns make no reference 1io the prior state of the art, and merely state that the invention produces I'a more \1esirable article'""than is now in ordinary use," without particularizing the points constituting the improvement. Hetd, that the presumption of novelty applies, tq the combination as a Whole,' and, in the absence of 'evidence as to the , prior state of' the art. the court has no power to declare· that the mllitch, B, or its was not essential. and to b.old that a like cracker. with a continuous fuse, is an infringement. PJ.'RNTSPOR lNVlINTIONS-CONSTRUOTION 011 CLAIM-COMBINATION.
S. BAMB.
"
The use of the conjunction "and" between the words "match, B," and "fuse, C," , ,does 1)ot show that tile match and fuse constitute but one element, of which a con" , tinuous fuse'wquld be tlfe equivalent. '
to, con1p]ainl\btfora firecracker. Bill dismissed. The specification arid claim of the patent are as follows:
In Equity. Suit by Cornelius E. Masten against ,Edmund S. Hunt et at for infringement ofletters patent No. 321.833, issued July 7,1885,
it,knownJhat E. Masten, of Boston, in tile county ot Sut. tolk,'state of Massachusetts. have invented a certain new andtlseful improvement ill'ftrecrackers, of which the follOWing is a descriptionsutliciently fuJI, clear,an(Jexll.ct' to enable any person skilled in the art or science to which said invention appertains to make and use the same·. reference beiDI{ had to a9COlllP!inying; drawing, forming a part of. this in which tl,le figure il'l a, longi tudi nalsecti0 ll " · .' . My more especiaUJ' to large firecrackers, orthe class known as and it consist,s iii a novel construction and arrangementof.thepartll, as hereinafter more fUlly set forth and claimed, by which a more desirable article of this character isprodnced than is now in ordinary use. The nature and, operation of the Jl)Jprovement will readily undersfA:>Qd by all such matters from the followi.ngexplanation. its extreme simplicity rendering an elaporate description unnecessary: In the drawing, A represents body of the cracker. B the match, and C the fuse. TMbody is cylindrical 'in form,' and is composed ot layers of strong'. tough paper overlapping each other, and cemented together in the usual manner. The umtchis composed of cotton, powder, and gum, the cotton being saturated with a solqtion of the gum, and then rolled in powder, ,or the POwder rubbed into it and dried. .The fUl'le is composed of a short cord or tlyistof ordinary touch-paper. into the..inn,er end of which .the outer end of match is inserted arid setmred,asseeh at roo The breech plug,D, of the cracker consists of fireclay, and is inserted in the body around, the fuse and match as follows: The·ftIseandmate'h 'having been first united. as shown and described, the fuse is 'inserted in a vertically-arranged hole in the center of au anvil or stake, which fits closely into the lower end. d, of the body. This stake is prOVided with a rabbet or shoulder on which the end. r, of the body rests; the body standing vertically with the match in its center when the stake is inserted. Powdered fire clay, or similar material, of proper, temperament. is then introduced around the match through the open upper end of the body, and rammed down to form the solid plug, D, by means of a hollow ramrod, which is adapted to pass freely over the match. The body is.
MASTEN fl. HUNT.
217
(Ito 1I04ILJ
C. E MASTEN. FIRE CRACKER.
No. 321,833.
Patented J'uly'1.,
.
'Corti
..
2U
FEDERA:L'
vol. 51.
then filled with the charge coplp,Rnnd, E, and theMIUl',of' the shell. H, open at muzzle plug in.serted. This'plligconsiSts of both ends, and adapted to tit cl"¥le!finto, the shell being provided with a centrally disposed plug;"M; composM-bf fire clay, or similar material, the shell is insertt'd. ,oolpposed of layers of paper overla.p.IP.r.:!l . ..e .. other, and propel1y cemented to.... g .... gether, and 13 secured in the .b.Yi!anS of glue or cement. In firecra.ckers of this character the m.u .·,.1.e. Pl.pugz. l' wad is usually rammed down . onto the charge or tilling with , to secure the wad firmly in the body of the cracker, thereby, ..pature of the filling, greatly reducing the force of the to produce far less noise the plug is cemented into the body, as deHaving thus explained my I claim is: (1) In a firecracker, the match, B, and fuse, C, in t!le solid plug. and A, substantially as set forth. firecracker herem descnbed, the same consisting of the b.[!.'.Yi,.'A '.·. Jus.e.·,i. .C·.m.a.tch, B, plug, D. shell. H, .. . . plug', M. and filling or charg' combined, and arrallged to operate substantially as descn . ;;'\' ';\'c J. S. RichardrJon and Maynadier &- Beach, for J.,>.:,';,. :.':". .
PUTNAM, Circuit on the first claim in comat the argument was nonplainant's patent, and the infringement. This defenseJ the construction of the manufacturing the article declaim in question, as the scribed by it; except only continuous safety fuse instead of the" match, B," and the a:eems to me that to restrain respondents in this cause, a monopoly of aU so called" cannon crackers" in of which a clay plug is forced into the body of -tie body has been" cemented . .·. e.. . entitled to the pattogether in the usual ent office so much as thIS, and claIms fall to show to the state of the art, and it. The specifications do not particularize in combination was an improvement, only the general language that by the invention article" is produced" than is now in ordinary use." Therefore t4.re is nothing 011 the face of the patent from which the can infer that any element in the combination is more or less essential or important than any other. Complainant claims that the conjuQ:ction between the words" match, B," and "luse, C," shows that the match and fuse make but one element, and that, therefore, by the terms of tJie patent, they are the equivalent of a continuous fuse; but the presum:ption raised by this collocation is too weak to safely guide the court. The presumption of novelty in this case as a whole, and does not apply to any applies enly of its elements. Neither party has shown to the court; by.·pr6per:,p!00f, complainant1o$iriventiob.... 'I ,am that that is, Chinesectackei-s,. structed .·darplug, and not in m,ethQddescribed in '.h.
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for complainant.
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MASTEN
'f).'
HUNT.
219
C6mplainant's'specifications; buttbis fact is merely negative in its effect, as it is limited to these particular exhibits,and doesllot inform the court whether or not other crackers of different construction. were on the market. J·ames Shepard (page 31,. answer 10, and page 34, answer 19) con<.:ll1des that. certain elements in oomplainant's cracker are new; but he does. not qllalify himself al"j one having historical knowledge or information about this particular :trade, and his method ,of reaching his conclm:ioll as to the construction of Exhibits Perigo and Perigo 2 indicatks that-be. could not, In McDonald v. WhitneYI 24 Fed. Rep. 600, the combination wase:iCpressly described in the claim as embracing four rolls; but, either from the face of the patentor from other matters in the record, the ,colirt was able to conclUde that thegrst ofthe invention in issue waS 'I the separation and adJustment of the rolls,' held together by spring pressure, by means of a treadle and levers;" and the court, therefore, enjoined's. machine with :ouly three rolls. There may also be other conditions under which a patentee may be enabled to meet the effect of an unnecessary subdivision in his claim ofthe elements of his combination; but, in the absence of the matters stated in this'opinion as not appearing in this case, it seems to me I have no power to. pronounce any element more or less essential than others, or to declare that any division or SUbdivision appearing on the face of the claim is unimportant, or that the gist of the invention is in a new method of combining the clay plug with the body of the cracker, or, for that or for any other reason, to decide that any manufacture is an infringement, unless it combineswith the rest the "match, B," or the equivalent of that precise element. In applying the law to the facts in this record, I am gnided by the results in Vance v. Campbell, 1 Black, 427; McClain v. Ortmayer, 141 U. S. 419,12 Sup. Ct. Rep. 76; and lJryJoo8V. Wiese, 124 U. S. 32, 8 Stlp. Ct. Rep. 354,-more than by that in Machine Co. v. Lancaster, 129U. S. 263, 9 Sup. Ct. Rep. 299. The latter case, however, cites (page 280, 129 U. S., and page 305, 9 Sup. Ct. Rep.) the ruling of Vice Chancellor WOOD as follows: "When the thing is wholly novel, and one which has never been achieved before, the machine itself whi"h is invented necessarily contains a great amount of novelty in all its parts; and one looks very narrowly and very jealously upon any other machines for effecting the same olJject, to see whether or not they are merely colorable contrivances for evading that which has been bef9J,'e done. When the object itself is one which is not new, bilt the means only are new, one is not inclined to say that a person who in vents a particular means of doing something that has been known to all the world long before has a right to extend very largely the interpretation of .those means which he has adopted .for carrying it into effect." The difficulty in the present case is that, as already pointed out, the complainant does not show by his specifications, or the proofs, whether the" object itself" is new in any essential particular, as, for example, whether a body constructed like this with Relay plug pressed into it is novel. To paraphrase the supreme court in the same case (page 273, 129 U. S., and page 302,9 Sup. Ct. Rep.) the complll.inant does nut show
220
FEDERAL REPORTER,
whether ornot"theinvention isoneofa. "primary character," to which the doctrine of equivalents applies to its full extent, or whether or not the inventor was a" mere improver" upon something "capable of accbttlplishingthe same general result;" in which latter case, the court said,uhis claims would properly receive a narrower interpretation." - Again, in McClain v. Ortmayer, supra, the supreme opurt, on page 425,' 141 U. S., and page 78,12 Sup. Ct. Rep., laid down the lowing rule: ,!i"The principle imnounced by 'this court in Vance v. Oampbell, 1 Black. 427,. that, where a patentee declares upon a combination of elements which he the novelty of hisinyention. he cannot. in his proofs, abandon and lOaint,ain his claim to the rest. is applicable t(),a caae of this kind.' wher.e a patentee has claimed more than is necessary 1ot1\e successful working'bf his device.» .:thisdoes:notstricUy govern the case at bar; but it illustrates clearly tpatit the complainant can abandonl'match, B,'" ass distinct element, and claim a continuous fuse as the equivalent of his fuse anp. match, merely because he has made a subdivision which it niay prove was not "necessary to the successful working of his device." in this opiniop I have not only pointed out the negative nature of t.he cQmplainant's speci.fications, ,but have also referred to the lack in the record of any proof of the state of the art prior to the invention in question,yet. I do not mean to be understood as now holding that any s1-1ch proof,would have enabled me to reach a different conclusion. In view of what appears, or rather fails to appear, on the face of the patent, I have not considered whether any line of proofs would relieve the complainant,and I have referred to the ,lliLck of them merely because it strengthens the case as presented to me. Let respondents draw a decree 01 dismIssal, with costs, and submit it to the court, with proof that it on the complainant.
'D. KEYSTONE
WMON Co. 1
(CiII'cuit Ooun, E. D. PcnnBYlvanla. April 29, 1892.) PATlIlNTS
Letters patent No. 211,052, for a dumping-wagon, are to be construed as tor a. dumping-wagon Wherein the body is ,raised front and rear simultaneously, by folding arms connected with the body and runnillg gear, and suitable connections tween the forward ends of the armll and wagon body, whereby, as the latter 1S raised, it moves rearwardly also with a single power device operating upon one or more of its arms, whereby a single continuous operation will elevate both ends of the body,atid move it rearwards, and embrace patentable novelty.
OF CU,LM-NOVlIlLTY.
Bill in" Equity by Leonhard Rodenhauaen to restrain the Keystone Wagon Company from infringing letters patent No. 211,052, for Decre.e f(ir complainant. 1 Repotted
by Mark wiiks Collet, Esq., of the Philadelphia bar.