BOW1Ulf fl. DE GBAUW.
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BOWMAN v. DE GRAUW et aL . (CircuIt Court, S. D. New York. March 26, 1894.J L PATENTS-NOVELTy-FASTENING STARS TO FI,AGS.
There Is no novelty in tastf'ning stars to the opposite sides of a fta.g by a method which had previously been employcd to tasten letters to blankets, patterns to embroidery, and patches to fabrics. The Bowman patent, No. 469,395, tor an improvement In the method of making flags, is void tor want ot novelty.
I.
SAME.
This was a suit by Henry A. Bowman against Walter N. De Grauw and others for infringement of a patent. Campbell, Hotchkiss & Reilly and J. E. Maynadier, for complainant. R. B. McMaster, for defendants. TOWNSEND, District Judge. The questions herein are present· ed by a bill in equity for the alleged infringement of letters patent No. 469,395, granted to complainant February 23, 1892, for improvements i1l. the method of making flags. The defenses are anticipation and lack of patentable novelty. The object of the allegt'd invention was to provide a practical and economical mode of so affixing stars or other emblems to the opposite sides of the field of a flag that they should accurately cOlTespond in their respecti"Ve relations without requiring especial care on the part of the operator. This was aocumplished by temporarily fastening emblems, such as stars, on the face of the field, and unformed blanks, sufficient "to cover the COlTe-
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sponding area, on the back of. iihe field. The cut-out 'star, guide star, ,the .field, and the blank-were then stitched together by a zigzag orherrmg-bone stitch, which passed alternately through the raw edgeQf the guide star and the field and blank, and through the field and blank; :'The blank was then cut out around the lines of stitching SQ ,as to make stars of suitable proportions on the back of the field. "By this mode of operation the stars on both Elides of the flag are made accurately opposite to each other. The zigzag stitching prevents the raw cut edges from wearing off, while the stars lie flat and smooth. upon the field fabric, and do not present thick, bulky seams, nor give to the fiag a' stiffness such as comes from pasting stars." The <Haims of the patent areas follows: "(1) '1'he method of makIng described, consisting In affixing and accurately duplicatingthe.emblems oretars on opposite sides of the field fabdc by stitching through: the. field and an underlying blank fabric from the o( the superpolle!J f\ccurately formed star or t;lPlblem properly ,Oil the face Of .and subseqlleJiltly trimming. thl:! blank to the outline Indicated by s).lch'$tltching, whereby said stars for both face and back are given similarity of configuration and a smooth flat-laid attachment without!uo4uly stiffening or encumbering thefiag. (2) The method of making .:flags ,as herein descr/.bed, Which in loca,ting and temporarily fastening accurately ·formed st,ars' or upon the face . of the field fabric, then temporarily fastening an unformed iabric or blank upon the back of the field fabrIc covering the positlon and area of the face stars stitching through the several plies on.the outlines of the accurately formed star by overseaming stitch embracing the raw-cut edges thereof, and then trimming away the outlying portions of the unformed blank fabric to conform to the stitched outlines of the face stars, substantially as set forth. (3) A fiag having the emblems of stars with raw-cut edges affixed thereon in duplicate upon opposite sides of the field or ground fabric and secured by overseam stitching that embraces the raw-cut edges of the face stars by zigzag stitches and is carried through the fabrics of the field and back stars, and said back stars having their edges trimmed adjacent to but oiltside the line ofstltching, in the manner set forth."
or'
It will be seen that claims 1 and 2 cover the method, and claim 3 the article, described by the patentee. The patent in suit covers a form of what is known as applique, in which an emblem or design is applied in relief to a field or ground. It is admitted that the use of a zigzag stitch to secure a superposed fabric to a ground fabric, and to prevent the raw edge of the fabric from raveling, was not new, nor was it new to uile such stitching to form a pattern on a blank underneath the ground fabric, and to cut away the portions of the blank around the lines of stitching. But complainant claims that he was the first to show how, bya single sewing opel'ation, two stars could be practically sewed to a field so that the front and back stars should register exactly, raveling should be prevented, and a strip of each Qne of the three fabrics permanently united. In the present eonsideration of the questions at issue, it will be assumed that this statement, if limited to the flag-making art, is correct. The evidence as to the state of the art shows that, in an English patent granted to William Madders in 1865, for improvements in embroidery, a class of single applique work is described, in which a face fabric cutin a. certain pattern is first temporarily secured to a field, and is afterwards firmly fastened by buttonhole stitches passing
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, alternately through the field and across the edge of the face fabric, and then through both the field and the face fabric. As early as 1880, various samples of patching and embroidery by applique work, stitched by machine, with the same kind of herring-bone or zigzag stitches as are described in the patent in suit, and stitched in the same way in order to prevent raveling, were exhibited at fairs, and sent to manufacturers and others in this country in connection with descriptive circulars advertising the Wheeler & Wilson sewing machine. A similar method is shown in the Henderson provisional English patent of 1867 and the Lamprell provisional English patent of 1875. Lamprell claims by his stitch to have secured one of the results claimed by Bowman,-the avoidance of stiffness. Other exhibits show samples of double applique work, employed long prior to the alleged invention. In the Wheeler exhibit both patterns were cut out before being applied, and were then secured by a stitch passing first through all three fabrics, and then through the field alone. In the exhibit "Steward Sample No.1" the double applique was used to unite a stamped paper pattern, a field fabric, and a blank by an ordinary stitch. Various witnesses, experts in embroidery and other needlework, testify to having performed for 10 years last past this double appliq:ue work, with and without a zigzag stitch, upon face fabric, field fabric, and blank, for making single letters, monograms, and other designs, to register alike on both sides of the field fabric, and to material from the blank. having afterwards cut away the Mary J. Hewitt, for 15 years employed by the Wheeler & Wilson Manufacturing Company to make samples of their sewing-machine work for exhibitions and fairs, produced a sample showing a "W. & W." in cloth, stitched on both sides of a piece of flannel, and testified that, in 1887, she put such a "W. & W." on a horse blanket for the Wheeler & Wilson Company, and described' how it was done. She first cut out a "W. & W." in blue cloth, and pinned it on the upper side of the blanket, and put a broad piece of cloth on the under side. Then she stitched them together around the edge of the upper pattern, and, turning the blanket over, cut the under piece of cloth out along the line of stitches, .so that the letters on one side registered with those on the other side. Then, in order to make the design more firm and more ornamental, she made a second row of stitching like the first row. She testified that the blanket was used by the company until they sold their horses, and she produced what she testified were the patterns used in Clutting out the design. She further testified that to carry a line of stitching across the surface of a superimposed material from one point to another, to unite two or more layers of material, was old and well known long before 1889, and was common in quilting and like operations. She also confirmed the testimony of other witnesses, that to secure a raw edge of material, and prevent it from raveling by a herring-bone or zigzag line of stitching, or whipping over the edges, was well known prior to 1879. It appears that heretofore flags have ordinarily been made either by temporarily fastening stars on one side of a field, with the
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edge" turned in, then, sewing them on by hand or l:!,nd.repeating the process on the under side, 01' by cutting away thetJeld on the under side atter sewing the star on the other side. Patent No. 257,222, granted to. John Holt May 22, 1882, for a device for attaching stan!! to flags, desCribes a· device for adjustingand pasting stars on both sides of a field, but it does not sllggest, or in any way detract from the merit of, the claimed invention of the complainant. It is .claimed that the method covered by complainant's patent produces a better flag at a reduced price, and that it is now in general lIse all over this country. I think these claims are sustaine(j. by the evidence. Upon, the whole evidence, the complain· ant to be entitled to a finding that he believed himself to be theJlI'St inventor of the patented ,process and result, and first applied "this patented mode of operation to the making of flags, and that the art, as applied to' flagmaking, and the article, were new and, useful, and had not been thus used or patented before the date, of his application for a patent, and were an improve· ment on the methods and results which preceded them. The question is whether all these Circulllstances, taken together, are sufficient to constitute invention, or to show patentable novelty in view of tile Eltate of the art as hereinbefore set forth. The, theory of the patent law upon this question seems to disregard the individual knowledge,skill, or training of the alleged of his individual inventive inventor, aJ),d the extent of the faculties., ,Whether the alleged invention was a mere accident or the of years of experiment, the vital question is always the same:, ,:(sthe thing claimed by him such as would not have occurred to a person skilled in the art to which it relates? For the purpose of 'determining this question, it must be assumed that the patentee was .such a person, and had before him all the accumulated :knowledge ,and experience of this country bearing upon the subject of inquiry disclosed to the public, from. the working model in a related art which may border upon the field of abandoned experiment or lost art down to the embodiment of the principle in so;me other and distinct field, developed just before the inventive idea flashed upon the, mind oT the patentee. His ap· plication' for a patent m.ust, furthermore, be read in the light of all knowledge shed upon the world by foreign patent or printed ld., 149 U. S. publication. Underwood v. Gerber, 37 Fed. 224, 13 Sup. Ct. 854. H m.ay be said that the application of this doctrine is productive of hardship in a case like the present one. But, whether this is so or not, the rule is settled by repeated adjudicationssin.ce Pearce v. Mulford, 102 U. S. 112. Applying this prindple' to the case at bar, we find the patentee D;le'tJ?od and, result, in connection with fastening em· claiming blems to, flags,w,hich had been previously emploJ'ed to fasten let· tel's to blankets, patterns to embroidery, and patches to fabrics. It seems to me that, if there had been presented to practical needlewpr]{,ers, such as those who ,have testified in this case, the problem of' how to econ,omically and methodically B,ttach stars to
a.
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a flag, it must have occurred to them to repeat, with a cotton blank, the operation already performed with a woolen or paper blank. And, if the well-known zigzag stitch was better adapted than a double line of stitches to secure the edges, by having it sewed crisscross from the star to the fabric to prevent raveling, or if the surface of the star would lie flatter by stitching from point to point, as in the method claimed to be covered by the first claim,' it seems to me it must have occurred to them to stitch stars in that way, just as it had occurred to them to stitch other fabrics, and to plush embroiderers to vary their stitching so as to make ornamental edges for fabrics. Mr. Steward, one of defendants' witnesses, testified that in 1880 he employed the method described in the patent in suit in attaching stars to flags for a dealer in flags, and that he kept samples of said work for a number of years, when they were destroyed, with a mass of other accumulated samples. Charles F. Herbert, an embroidery and needlework expert, another of defendants' witnesses, testified that for more than 10 years he had performed this class of work, both with straight and zigzag stitches, in applying designs and monograms to banners, and for other purposes. Neither of these witnesses produced any samples of the originals of such work If the truth of this testimony were established, it would, perhaps, be sufficient to defeat the patent. But I do not understand that the presumptions of validity arising from the grant of the patent are to be rebutted by such unsupported testimony, nor that the presumption of knowledge of the art, applied in determininO' the question of patentable novelty, extends to an abandoned exneriment, such as was testified to by Steward. But the evidence of these apparently disinterested witnesses is relevant and persuasive in support of the claim that the application of their experience and knowledge to produce what may have seemed invention to Bowman, the flagmaker, should have occurred to him, and would have occurred to any person skilled in the art of applique work. Lace Co. v. Schaefer, 1 U. S. App. 118, 1 C. C. A. 488, 50 Fed. 106. Such an application of old processes to the new result of affixing emblems to tiags seems to be referable to the skill of the workman rather than to the genius of the inventol', and to be, therefore, an analogous use. The fact that the new form of result has not previously been contemplated or achieved is not sufficient to support the claim of patentable novelty unless such result is substantially distinct. Such a result is "only the display of the expected skill of the calling, and involves only the exercise of the ordinary faculties of reasoning upon the materials supplied by a special knowledge, and the facility of manipulation which results from its habitual and intelligent practice." Hollister v. Manufacturing Co., 113 U. S. 59, 5 Sup. Ct. 717; Thompson v. Boisselier, 114 U. S. 1, 5 Sup. Ct. 1042; Underwood v. Gerber, supra. In Manufacturing Co. v. Cary, 147 U. So 623, 13 Sup. Ct. 472, the complainant's patent claimed a process of tempering wire for furniture springs. The same process had previously been applied
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range of subjects tp.an had been previously It further appeared that the patentee,. being a manufacturer of furniture Iilprin,gs, had observed certain defects therein, had discovered that they could be obviated by the patented process, and that this discovery had revolutionized the art of making fllrnitllre springs. But the court, reviewing the previous cases on this questiffil, held that, the principle involved having been already developed, the new application .was merely another use of the possessed by those skilled in the art. It seems to me that the rea· soningof this decision is conclusive against the first two claims of the patent in suit This view is also supported by the following recent cases: Aron v. Railway Co., 132 U. S. 89, 10 Sup. Ct. 24;. JohIl.$on Co. v. Mills Co., 2 C. C. A. 506, 51 Fed. 762; Fox v. Perkin,s,3 C. C. A. 32, 52 Fed. 205; Lace Co. v. Schaefer, supra; Wilson v. Copper Co., 4 C. C. A. 484, 54 Fed. 495; Underwood v. Gerber, supra. That .8, more thorough doing of what had been done before, or the production of a new fabric with higher finish, tighter weaving, or gteater beauty of surface, due to the observation or skill of the . workman, is not sufficient to sustain a patent, is held in Ansonia Brass !&Copper Co. v. Eectrical Supply Co., 144 U. S. 11, 12 Sup. Ct. 601; that the m,ere carrying forward of an original conception resulting in an improvement in degree simply is not invention, is settled. Mill Co. v. Walker, 138 U. S. 124, 11 Sup. Ct. 292; Trimmer Co. v. Stevens, 137 U. S. 423, 11 Sup. Ct. 150. These decisions seem to determine the nOlilpatentability of the article · covered by the third claim. These views render it unnecessary to consider the evidence as to the general use of the patented process and article. In a doubtful case, such evidence may suffice to turn the scale in favor of the patentee, but not in a. case where there is clearly no patentable . novelty. . Duel' v. Lock Co., 149 U. S. 216, 13 Sup. Ct. 850; Grant v. WRIter, 148 U. So 547, 13 Sup. Ct. 699; McClain v. Ortmayer, 141 U.S. 419, 12 Sup. Ct. 76. . Let a decree be entered dismissing the bill.
to different purposes, but it was claimed that the application of Jt by the patentee produced better results and covered a wider
BATN et at. v. SANDUSKY TRANSP. CO. et al. (District Court, E. D. Wisconsin. March 29, 1894.)
ADMIRAL'J'YJURIGDIC'l'JON-TORTS-ARREST OF SEAMEN ON cHORE.
Where 13eamen have deserted, and are found on shore, their wrongful arrest. and imprisonment there by procurement of the master is a tort not rparitime in character, and admiralty has no jurisdiction of a libel to recover damages therefor.
Libel by John Bain and others against the Sandusky Transportation Company and another to recover damages for wrongful arrest and imprisonment.