AMERICAN ROLL PAPER CO; tI. WESTON.
237
web or neck of the beam thinner than the top' or bottom. In other words the metal neck or web of the beam between the top and bottom flanges is made as thin or light as practicable, as the patentee himself describes it, "for the purpose of lightening the beam by removing the metal of the beam from that part where the strl.\in is least." The removal of this superfluous metal, of c0urse, leaves a hollow or concavity between and parallel with the flanges. The patentee says he does not daim the flanges nor the fillets, nor acornbination of them alone, evi. dently because he knew they were old; but his claim is for a combination of the flanges and fillets, and the concavity between them. Some scoffer said that" God could not help making valleys so long as he made hills;" and so it may be seriously and truthfully said of this device that with flanges and fillets at the top and bottom of the beam a concavity between them was a necessity, and it required no invention to produce it. The lateral expansion of the top and' bottom of the beam, thereby making the flanges, made a greater or less concavity between them, so that the inventor did not invent a concavity, nor did he invent a new -combination of flanges, fillets, and concavity , because the concavity would always be where there were flanges at top and bottom, and the -central portion of the rail partly cut away to save metal. Such concavity is in the T railroad rails, in bridges and building girders and beams, :and in fact any form of beams where the top and bottom are wider than the metal neck. The concavity is as old as flanges and fillets, and always; it may be said, goes with them, in such a structure as this. For ihesereasons, I think the patent is void for want of novelty; and the bill is dismissed for want of equity.
AMERICAN ROLL PAPER
Co. et al.
tI. WESTON.
(Oircuit OOUrt, S. D. Ohio, W. D. May 28, 1892.) No. 4,281. 1.. PATENTS lI'OR INVENTIONS-ANTICIPATION-PRIOR USE-ROLL-l'APER CUTTERIl.
Lliltters patent No. 301,596, issued July 8, 1884, to Richard W. Hopking, cover an improvement in roll-paper holders and cutters consisting of a bracket from which , the roll of 'paper is suspended by means of a yoke, Which passes through llislot in the bracket, and has its arms bent to fqrm lli spring, and its ends curved to pass a shortdista"nce into the roller or core.. A blade, having its ends bent at right angles, to guide the paper, is connected with the bracket by means of a knife yoke, upon which are two coil springs to continually press the knife against the roll, so that the paper may be pulled out and cut at any desired length. Held, that the invention was anticipated by the device constructed in .Richmond, Ind., by Martin Nixon, and used there by himself and others about 1875 or 1l:i76,and which consisteli of a bracket holding the roll, and a follower with a metal edge, which was held above the roll by slots in the bracket, and of its; own weight followed the roll as it diminished in size. and continually pressed against it ready for eu,tting. The patent was also' antlcipated by the device constructed byO. J. Livermore about 1878-79 at Worcester, Mass., for cutting sheet wrapping paper from rolls, and used there for several years in the dry goods store of Clark, Sawyer,& Co. This machine operated in substantially the same manner as the Nixon device, hav-
:2.
SAME.
DDER.u..
vol. 51.
", iil
,'lng4 wooden fl,'aute witll.a·sloti In. Jy,hlflh the rQIl was carried on an iron rod, and a heavy wooden Iollower a metal edge, acting by ofgrav ity: 45: Fed. Rep. 686, reversed. ,,' , . , II
'liIt:l"Equity. On rehearing. : "K1Ilijjht Bt08.; for cQmplainants· .'A'rlhur Stem, for deJEmdant. j,
District Judge. is before the court ,upon a petition for rehearing, based upon alleged anticipations which have come to the knowledge of the defendant since entry of the decree for an injunction and account on the 8th of April, 1891. The defendant has prodllced, ,testimony tending to prove six; prior uses of the invention. These will be considered in the following order: First. ,Paper bag maqhines, with tension bars for controlling the feed roll of paper,which, accol,'ding to the testimony, were put in the factory of Chatfield & Woods at Cincinnati in the summer of 1878. It is not quite clear JrclI;n the testimony whether the tension bars were on the machines put ,'jn Jut that date, or'tpon others put in a year or two Ill-ter, but the 1atetdatewould be earlier than the complainants' invention. Upon a <.:areful,examination Qhhe testimony, I a,m satisfied, that this device was notan anticipation. The machines were used for making flour sacks. The tetlsion bar was of-wood, the sur/ace bearing upon the roll of paper being rounded, and not practical as a cutting edge. It appears from the evidenee that trye wood, rapidly wore, away, flattening the surface, but thesupE\rintendent" whenne discovereQ that fact. shod the rounded part of the tension bar with quarter-inch iron, which was shorttlr in length than the shortest roll used on the machines. Second. The Nixon use. William R. Nixon was a paper manufacturer at Richmond, Ind., engaged betweell the years 1872 and 1876 in making Manilla paper for bags and for wrnpping purposes, in partnership with his brother., Nixon. The of the produce of their mill was sold in rolls to paper bag manufacturers, but they had a few retail custpmers at ,Richmond, to whom they sold, "wrapping paper time, and the labor of changing the machine every in sheets. To time they wished to produce paper in' sheets instead of rolls, they endeavored to persnade. those customers to take wrapping paper in rolls, it in that form, his brother. Martin, constructerl a roll-paper holder, a sketch of which is in evidence. The knife bar; or; 'its the witness styles it, the "crossbar," was provided With" a wei,g"h,ta,nd a, cutting, e,d,'ge" eith,e,r of tin or,z,inc, it is, not material ;W-hich. ,It, testt\d upon tlitl ):QU, a,nd'had a vertical play' between its up,:right end >lillpports, so that 88thero11 grew smaller, it w(mld follow it against it. It wllsalsq provided with a piece of iron on the ,top oNt, tollloke it'heavier,andhold it while the paperwas being torn otf. It lip to aid in the introduc,tion of. roll ,paper in themar.ket. It wlS ,setllp in the mill, where Wi!it was for about six weeks. " The witof how it wasusQd,:waa aafoUows: "You took hold of SAGE,
AMERr:IDAN ROLL PAPER CO. tl. 'WESTON.
239
the 'end of the paper, pulled it ouhisfar as you wanted, and then tore it off; the bar and weight on it holding it, and tearing it straight by means of the piece of tin on there." Being asked whether the paper was torn off with a straight edge, bis answer was that, "if the tin was straight, of course it cut straight." No paper holder or cutter of this description was sold or put on the market, so far as the witness knew or was able to state. He fixes the date by the fact that the partnership was dissolved in 1876, and that he then left Richmond. He is sure that the device was made in the time of the partnership. Simon Fox, a merchant tailor of Richmond, testifies that he had a roll-paper holder and cutter in his shop. "It must have been in the seventies." It might have been in '74 or '75, but he could not fix the date exactly, nor could he remember how long it was used. It was brought there from Nixon's house. He flays it was a wooden bracket, with two uprights, one at each end, with an opening, and that there was a roll of paper on it. He testifies that he cannot recollect whether, when it was first introduced in his store, there was some arrangement on it for cutting or tearing off the paper, but that his cutter used his shears, because it was easier to cut the paper with them than with the machine, and that the paper could be cut or torn from the roll by the use of the machine itself, without the use of the shears; and yet he cannot recollect whether there was anything on the machine for cutting or tearing the paper across the roll. He also testifies that a device left at his shop by the defendant, Weston, about two months before he gave his testimony, which was in July, 1891, resembled the one at his store above referred to, and that he used shears for cutting the paper off that machine. He does not, however, remember whether there was a bar on that machine or not. John J. Roney of Richmond testifies that 12 or 15 years ago he saw a roll-paper holder and cutter in the store of Fox, the last witness; that..!twas principally of wood, the brackets attached to the end of the cutter's table. The roll was huug 50 it slid up and down in a slot, the journal of the roll. There was a cntter attached to it for cutting or tearing the paper off, and my recollection of it is that it followed tbe roll as it diminished in size. '.rhat cutter was metal. I don't know whether it was tin or sheet iron, attached to a piece of wood. I don't know whether the piece of wood was flat or jlartially round, but it followed the roll of paper." He also testifies that he has seen it used, but could not say how often, but his opinion was that it was not much used.' The paper was torn ()ff by pulling it up against the cutter. On cross-examination he was unable to answer whether the cutter had to be held down by one band, ,as the paper was torn off by the other, MartinN. Nixon testifies that he got up the device above referred to for holding roll paper. He says there were two brackets, with. slots for --carrying the roll, and there was a follower, a square piece, which followed ·down the slot, and was used for a tearing edge. His recollection is that 'the was made of zinc, but it may have been of tin, as they had both tin and zinc at the mill. He made two of these devices.' Mr. Fox, the -.clothing merchant, used one, and Mr. Nye. a queen's ware merchant at
240
nDERAL REPORTER,
Richmond, the other. Mr. Fox's device was iriuse at his store, orat least witness saw it in use there, about three weeks. Then one of the arms on thab.racket was broken. He testifies that he saw it used at Fox's by drawing the paper against the cutting edge, and that the holder and cutter used in thequeen's ware store of Mr. Nye was made by Mr. Nye'sclerk, under instructions given by the witness. His statement of the date corresponds with his brother's. My conclusion with reference to this device is that it must be regarded as an anticipation of the complainants' device. It is true that it was a rough, crude construction, but it answered the purpose, and the use was practical. 'rhe witness Fox is evidently a man of inferior mechanical faculty. The fact that he used shears in cutting paper:from the device when it was in his shop amounts to nothing, because· it appears from his testirrony that he did the same thing when he had in use the defendant's device, which has been found to be an infringement in this case. A sufficient TeaBOn for the disappearance of the Nixon device from nse is to be found in the fact that at the date of its construction there was no general demand for wrapping paper in rolls. " 'Third. The Shipley use, a device gotten up for holding roll paper by Columbi.1s G. Shipley, superintendent, of the Crume & Sefton Manufacturing Company, at Dayton, Ohio, at a date not accurately fixed. Standards· to hold the axle or roller carrying the roll paper to be fed into the machine were bpIted to the machine. To regulate the tension, a bar of iron was provided, working in slots in arms above the roll. It was heavy enough tooverQome the momentum of the roll, and prevent its overrunning or unwinding too quickly, and it was intended also to regulate the tension. Lt was used in connection with a machine for stamping out boxes for confectionery andice cream, and for oyster buckets, from Manilla paper of various thicknesses. There were occasions when it was necessary to tear off the paperjsometimes in starting a roll, and again when the was in operntion" and ,places in the roll paper where ends had been. pasted :were too thick to pass betw,een the dies. .On such occasions the paper would have to be torn off, and this wasaccomplished by a quick'jerk, which would tear it across the roll. It was not necessary that the cut should be a clean cross cut. If it was a little ragged, it would make no difference. Mr. Shipley testifies that this device was first used in 1880, and he is confirmed in this statement by Mr. Crume, president oLthe Crume & Sefton Company. They are both as appears by the testimony of Charles Johnson and Berevidently nardA. Barlow, who were.employed in the factory of the Crume & Sefton CompanYj.Johnson as late as March, 1882, and Barlow until the last of May, 1881. Both testify that in their time no snch device was in the factory, and there is testimony carrying the date of the complainants' inventionback to May, 1888. At sometime after the making of this device, but how long afterwards is riot definitely shown, another was gotten up by Shipley, consisting of a bar of iron an inch and a half squllre incross section, tied to the standards by wires, and so arranged as to bear on the roll at its side about as the cutting bar of the ievice ,bears, and to follow th,e roll as it decreased in size. I am not
AMERICAN ROLL PAPER CO. ". WESTON.
241
satisfied with the proof as to the date of either of these devices. It does not establish with the certainty required by the law a date prior to the complainants' invention. The first device is not shown by the evidence to have ever been used as a paper holder and cutter, excepting incidentally. It is true that, according to the testimony, paper was torn somewhat in the manner of that torn in the use of the complainants' device, but it was only occasionally, when pasted ends were encountered, or when an uneven end was to be torn off; and whether a clean or straight tear could be made does not clearly appear. This device must therefore be rejected as not an anticipation. Fourth. The Maltby use. This was a tension device used in a paper bag machine, constructed to make four bags simultaneously, the machine being fed from four .separate rolls of paper, one of which was provided with a tension device made of iron, and held down on the roll of paper by its weight. The testimony is conflicting whether this bar was convex or rounded, or concave or hollowed out, and it cannot be recognized as. an anticipation. Fifth.. The Livermore use. O. J. Livermore testifies that in 1878 or 1879 he devised a. roU-paper holderand cutter at Worcester, Mass., where he was in the store of Clark, Sawyer & Co., retail dry goods merchants. He went out one day to buy sheet wmpping paper which they. had been in the habit of using, and, finding a roll of wrapping paper, it occurring to him that that would be more convenient, as any length desired could be torn off, he bought it, took it to the store, and set it on end on the counter. It was difficult to tear it off smoothly, and so he devised and constructed a machine. a model of which is in evidence. That machine was used constantly during the two years that he remained in Worcester after it was constructed, and it operated satisfactorily. He does not know what became of it, but he saw it in use there a number of times after he left the employment of the firm. Itwas the only machine of the kind in that store at any time within the witness' knowledge. He gives the naInes of six persons who saw it in use, all of whom, excepting one, reside in Worcester. That one is Edward W. Ball, general manager of a manufacturing company at Woodhaven, N. Y. He testifies that the machine had a wooden framework, at each end of which was an upright, having a slot cut from the upper end partly down its length, in which was an iron rod, carrying a roll of wrapping paper. Above this roll was a bar or strip of wood, with a piece of sheet brass attached to one side, and projecting slightly beyond the lower edge of the wood. This bar or strip rested upon the roll of paper, and, as the roll was used, followed it down by gravity. It fitted in the slots of the uprights. When used, he says, "we took hold of the edge of the paper, and drew out the quantity required. Then we took hold of the further opposite edge ofthe paper, and, placing the hand upon the paper, by slightly elevating the paper and drawing it towards us, we tore it off." He says that "if you wanted to use the knife, you had to hold the bar firmly upon the roll with one hand. " "By the knife he explains that he means the metal blade attached to· the bar, and states that if an attempt was v.51F.no.5-16
J'l!IDERAL REPORTER,
vol.
wiith'otU:(band,it wouldrlse up; that it was two feet long, or perhaps a little'lessrfronl one and'a half to two inches wide, and from three quareighths of an :inch thick,an:d not ohufficient weight to act a8a. ·tE'fitlion deviee, and keep the: roll from overrunning. He further states:thgtit was gotten up by Ml1. Livermore about 1876, and that it was stHlin use when he left Worcester in 1885, and that he used it upon once or twice a day. Mr. Livermore, on cross-examination by'oouhsel for the complainants, said that it was "natural to put one hand on the bar and hold it down as the paper was torn off, but not necessary, as the 'paper could be torn as easily.withotit it. Chai-lea A.Fletcher, of Worcester, testifies that between 1876 and 1880, he was in the employment of Clark, Sawyer & Co., and saw Livertnore's paper holder and cutter. Being shown the defendant's exhibit,which:wastestified to by Livermore as a correct representation of it, the witness stated that it waS practically the same as the original machine, which was used for cutting roll paper for wrapping purposea to his knowledge, in the paper hanging department. His teStimony is that it was used daily satisfactorilYi' that theb8l' Carrying the cutting edge was movable in the slot so as to rest upott the roUol paper, and fonow it down as it diminished. The machine: 1'11$ there and in_. nsewhen he Jretumed, in 1884 or 1885, and has been'thllteever since,bttt the cutter bar:had,disappeared, and the paper was :torn' in :irregular way across the roll. Only:one of these machines was ma4e' during the time of the original one, buh year or two after he 'returned another was made to take its place,and was in use when the testimooywas had been since about 1882, minus the cutter bar. When it wasd;(lsired to remove a piece of paper it was manly done by 'unwinding from the roll, and· pnllingthe paper up and teariJ,lKitoff against the 'cutter bar, without placing one hand on the cutter,ba.r to hold it down, as the paper was torn off by the bther hand, because there wss sufficient weight· to the cutter bar to make that unnecessary, although it was done a good many times as a matter of convenience. He says that when theroH was full, and given a sharp pull, the weight of the cutter bar was not sufficient to prevent it trom overrunning; when it was given an ordinary pull, 'or pulled slowly, the w.eightwasliIufficiimtto retard it, and he repeats that in the ordinary use of the machine the only hand used was the hand that was pulling the paper the bar; George Ricbll.rdson, oUhe firm;ofClark, Sawyer&Co., in 1877, 1878, and 1879,rememberB the Livermore paper cutter and holder, and testifies that it w8.$the Bame as and was in use by the firm nea.rer five yeats than one. He confirms Fletcher as to the manner of its use; oowd ,noteay whether when they tore the paper off with one hand they. placed the other hand onthe cutting bar, but he thought they did not do so usually. ' . ' . Soophen,'sawyer, treasurer of & Sawyer Co., which succeeded the :.ndi25 years a member, of. remembers the Livermore
mlidefto eut the paper against the knife without holding' the bat down
PAPER 00. " ·.
roll-paper holder and cutter. He that it little larger than defendant's "Exhibit Livermore," and that it was used every day for Beven or eight years, or more, until it broke down, and another and smaller one, without a cutter, was substituted. P. C. Sanderson, salesman for Clark, Sliwyer& Co., from 1873 to 1881, corroborates the testimony of Fletcher as to the construction and use of the Livermore paper-roU holder and cutter. He says that, if the roll of paper was very large, they had to take hold of the cross bar or cutter, anclhold it down; but if the ro]] was smaller,-that is, a foot or less in diameter,-the weight of the bar and the cutter was sufficient, and they did not have to place the hand on the bar at all; also that it was in use in the store at least two years before he left the employ of the firm in 1881. G. Herbert Marsh, another salesman, testifies to the same eftect. He says that the cutter bar followed down on the roll, and that the cutting the brass rule; also that the was done by pulling the paper weight ofthe cutter was sufficient to keep the roll from unwinding too fast,and to cut the paper without holding it down with the other hand; that he always used it the other way. William Stevenson, a witness for the complainants, was employed by Clark, Sawyer & Co. in 1885 or 1886. He was then 14 or 15 years of age, and was first a salesman and later a teamster. He testifies that the bar of the Livermore holder and cutter was of wood, about an inch and a half wide, and half an inch thick; that it was heavy enough to act as a brake to keep the roll Irom overrunning or to be used as a cuHer with· out being held by the hand; that sometimes a straight cut would be made by simply pulling up against the bar, but not with any certainty. He also testifies that as good a tear or cut could be made without as with the bar. I do not regard this testimony as entitled to the weight claimed for it. Considering the testimony of all the witnesses, I am of the opinion that the Livermore holder was a practical, effective device, and an anticipation of the complainants' invention. It is true that no cutter was provided for the holder substituted in the store of Clark. Sawyer & Co. Jar the original one, but that lact is not entitled to the significance attached to it by counsel for complainants. The first one was not put in by the proprietors, hut by Livermore, a clerk. There are some employers whit are minUful of comforts anJ conveniences for their employes; there are others who think almost anything will do. When the original device was worn out or fell into disuse, the deficienoy was suppliedin an imperfect way. but by whom it does not appear. Sixth. The Wheeler use. The testimony of one witQess, taken by the defendant, with reference to this use, was shown on cross-examination to be entirely hearsay. The only other witness, the pattern maker, telltifies that he made the patterns fQr the device in January, 1883, fixing the date from his books, and that he delivered them to Wheeler immediately /lfterwards. Upon further examination, at the requestof the complainants. he found, that the true date was October 19, 1886, long aUer complainanta'"invention. It is scarcely nec\J::lsary to add
REPoRTER,
·vol. 51.
that tihat use cuts no figure: in this case. The Nixon device and the MVElrtnore device were the first embodying any conception of a holder aIld cutter for roll paper to be used for wrapping purpo8es. They were both practical, both successful. The complainants' device, although an improvement in detail of construction, is nothing more than an eqUiValent embodiment of the same conception. It is completely anticipated. The contention by counsel for complainants that the others were mere experiments, long ago abandoned, is altogether untenable. The former rlecree herein will be set aside, and the bill dismissed at complainants' cost.
. THE
T. W.
SNOOK.
GRISWOLl>
et al. v. T,alj1,T.W.
SNOOK, {CONTINENTAL INS.
QQ., Inter-
vener.) (District Oourt, N. D. nUna;ts. June 18, 1892.) . A arrested in a suit to recover damages done to the hull of another vessel :'-by a collision was released:6n:l bond·. Afterwards an insurance company intervened . .
.. :in suit, claimin.'r: tlu;:t.t the cargo of th", other vessel had been insured by the ,coIDpany,and had been totally destroyed by the collision. A tlecreewas rendered findmg the libeled vessel guilty. Held, that the insurance company should not be al!9wed to be let. in to share in the decree to the extent of what might remain of the penalty of the bond after satisfying the decree in reg-ard to the damage to the'otlier vessel, since the bond was glvenonly to satisfy the cause of action set oUt in .the oriR;inallibeL
In Admiralty. On motion. Libel by thefirmlJlf Griswold & Manchester against the propeller T. W. Snook for damages caused by a collision. A decree was rendered in favor of the libelants. The Continental Insurance Company intervened, and now 'moves to be letin to partiCipate in the decree. Robert Rae, for Continental Ins. Co. BLODQMT, District Jl,ldge. On the 18th day of September, 1887, a collision occurred inthlil waters of Chicago river between the propeller T. W. Snotikand the canal boat Geol'gia, whereby the' Georgia was sunk; the Georgia at the time being in tow of the canal propeller City of Henry. Griswold & Manchester, ali! owners of the Georgia, filed their libel in this on the 20th of September, 1887, charging that the collision wag cause4.by the fault of thQse in charge of the Snook,and claiming dam.ages. for the loss of the Georgia to tlieamount ,of $2,000, her alleged value. A monition was issued, andth'e.Snook arrested by the marshal Qf the district, and on the 4th of October, 1887. the Snook was released. from such arrest on a bond given by Charles A. Cook, William C. Wil-