OALIFORNIA ART:tFICIALBTONlil PAVING 00.
v.
PEBINJD.
821
icy of non-extension had been established, in 1861, would carry with it no implied power of renewa.l. But upon this last the grant would have been for a new term of 17 years, and this was for the remainder of a term of 14 years. We think the f.air and obvious construction of the act is that the patent was to be It'good grant for 14 .years from its date, with the right, of course, in the public to dispute its validity for want of patentability in the invention,or want of novelty, and so on, and with the usual right of the patentee to procure an extension, if the circumstances shonld justify the patent-office in granting it, of which the oomrilissioner}wa.s the judge. Demurrer overruled. "
Sum·v. 1.
MOLITOR.
",., '
(OirlJuit Oourt, D. Oalifornia. May 7, lSSl,} LETTERS PATENT-ARTIFICIAL 8'l'ONE PAVEMENTS-INFRINGEMENT.:!! '
The method adopted by the 4efendants in layIlIgartificial stOne pavement was as follows: They first laid down. a section as blocp:.swere wanted, and tamped it down solid. When partially set these'sections were cut into blocks of, proper length with a trowel, the trowel cutting to a greater or less depth, according to the cllaracter of the. material. Into the open joint thus made by the trowelwas flQated Or rubb.ed of the same which the block was composed. Then a top layer of finer a larger portion of cement, was laid on the lower section, pressed Clown, and smoothed over. The trowel was then passed along the top layer, cutting partially or wholly through it, directly over the cutting below. The. joint. thus made ill. the upper layer was then smoothed over, and a joint marker, having a tongue from a sixteenth to an eighth of an inch in depth, was run' over the line of the cuttings, marking off the joints. Artificial stone pavements con. structed in the mode described, as used by the defendants, are infringements of the Schillinger patent. 2. SOO-INVENTION-TITLE TO UNsPECIFmD BENEFITS.
The patentee is entitled to all the benefits which result from his invention, whether he has specified all th9 benefits in his patents or not. . 3. BAME-SCIllLLINGER PATENT-INFRINGEMENT.
The respondents having so constructed theJr pavements as to gain the advantages secured by the SChillinger patent, and by SUbstantially the same means, they are infringers ofthe patent. .
Wheaton & Scrivner, for complainant. Parker, Shafter, and Duprey, for defendants. by S. C.HoughtOll, Esq.
822 f:'AWYBR,C.
, ' FEDERAL REPORTER.
;r., (orally.) In this action is invowed the construction of the patent issued to John J. Schillinger for an improvement in concrete pavements. This patent has been before me on several occasions, and I have had considerable difficulty in giving it a satis· factory construction. Previous to coming before me it was, at various times, before Judge Blatchford and Judge Shipman, each of whom had occasion to construe the patent,and both gave 'it a construction wider in its scope than I, on:tirst examination,thought it would bear, On further of the patent j and of their views upon the ,point, I am not prepared to say, with entire confidence, that their construction is not correct. Judge Blatchford is undoubt. edlyone of the ablest jurists on the national bench, and the Same may be said of Judge Shipman. The decisions of Judges Blatchford and Shipman are looked upon by the supreme court with great respect; and itis probable that those two judges have tried more patent cases than judges in the United States now living. I have, therefore, felt very great diffidence in dissenting from them in the construction of a patent. On former trials of cases involving the rights of the complainant under this patent, I gHlve it a more limited construction than that given to it by the distinguished judges mentioned. They do not hold it necessary thli.t, p'rocess of forJI1.ation of the pavement constructed under .the Schillinger patent, there should be interposed between the blocks anything which should permanently remain: In tha"previous cases before me I instr1;1cted the jury that, for the purpose of determining the question Qfinfringement in those cases, there should be something,either tar paper 01'· its equivalent, permanently interposed between the joints. Under the construction given to the Patent by Judge Blatchford, and also by Judge Shipman, ihere can be no doubt but that this patent has been infringed by the respondents in both the case of the California Artificial Stone Pat'ing Co. v. Perine, and the case of the California Artificial Stone Paving Co. v. Molitor; and I think, after full consideration, that, even under the more limited construction which I have heretofore adopted, the'respondents in both these cases have infringed. There is !"lome conflict in the testimony as to, how these pavements were constructed by the respondents in both these cases-as to whether or not there was any cutting at all at the joints duri.ng the process of formation; and, particularly in the Molitor case, it is Claimed that no cutting whatel'er was done by the respondent. I have gone over the testimony all that subject carefully, and I am satisfied that in
CALIFORNIA. ARTIFICIAL STONE PAVnW CO. V. PERINE.
823
both cases theta ",lis cutting at the joints bymeansXlf a trowel during the process of formation. "The testimony of Molitor in his case, it is true, is directly to the cdntrary, yet his testimony is somewhat impea{jhed, and lam disposed to think that it should be taken with some grains of allowance."I think,by a careful study of the testimony of Schalike alona,'who is Molitor's foreman and one of his principal witnesses, it is apparent that they did do cutting with the trowel. He superintended the construction of the pavement whicb was laid.in alleged infringement of the complainant's patent; and he admits .that tbere was cutting. Although he once or twice. states tbatthere was no useof the trowel for cutting, yet, under cross-examination, by complainant'.s counsel,be s8lYs be cannot tell whe,ther.it i\Vascut through or'not; eannot tell how deep be cut; is at a loss. to.tell was dona Hdhat regard. Still, taking his whole testimoIl-ytogether, itis manifest ·therefrom that he did cut with a trowel. . ,7;' 'l". . There are some other witnesses, it is true, whose ,testimony gQes t08upport that of Molitor; but, on the other hand,th-e complainant's witnesses positively and distinctly contradict them." Several of these witnesses of oomplainant appear to be men of. capable of observing, some of them having :had experience in the same business; a::nd ,they all visited the place where the respondent's pavement was being laid, expressly to observe the manner ill which the work was done, and examined it under auch ci,rcumstances as would be likely to impress upon their minds the .respondent's ,IDod,e of operation and construction." They would not be likelyt9,be mis,taken, and if they misstate the facts they must be wilfully.at fau}t; and they all testify there was cutting in the joints during the process of formation. the testimony of th,ese witnesses and of Schalike, and from an examination of the stones which were afterwards taken up from respondent's'pavements, referred to sented in evidence, lam satisfied there was' such cutting in ,the Molitor pavement, as well as in that laid. by Perine. ,,' , The process of laying the pavements in question is One section having.been formed, a scantling ,or moqld, is laid down parallel with the edge of the, completed section, and, at distance of the desired width of the blocks; and the bottom course material is put in, to the depth of about three inches, tamped, do.yn solid, its thickness' being reduced by the tamping about half 'an :ine).l. That being allowed to partially set, a trowel is afterwards; used, to -cut out the blocks into the proper lengths,the ,the trowel "being toa or ;lessdepth, according