FEDERAL ,REPORTER.
defendant, was before the court in that case. The conclusion then reached should, therefore, be followed, unless indeed plainmistake bE: shown., A proper regard for nniformity of decision requires this. If the defendant thinks he is injured, a review can be had in the supreme court, and the snbject thus be pnt at rest. The confusion and mischief likely to result from conflicting decisions should be avoided. While there may be difficulty in distinguishing the plain. tiff's process and machinery from that described in the British letters patent No. 55, granted to John Stenhouse, we do not feel ourselves justified in saying they cannot be distinguished, as they were in the case cited, and thus disregard the decision there made.. As, respects the' question of infringement, the 'defendant's process and machinery sil1l ilar in all respects, to. that of .the in Hammer· 8chwg.v.: $camoni, that what is there aaidon this subject, arpplies with equal force here; A decree"l:llust therefore be entered for the
McKESSON (Oirc'Ui'
and another v. CARNRIOK. S. D: N8fD Yt»'k. . April 8, 1881..
By" the moulds, A," in the second claim is,meant any suitable holder of the pills, whether they are formed therein or elsewhere. ' (,'LADf 2-VALIDITY.
2
CONSTRUED.
4.
The second claim is good though the mould will not form a pm; provided, it will act as a holder for pills. 6. SAME-SA ME-COMBINATION.
The comb-bar, needles, and pill-holders form a combination; they are not a mere aggregation of parts. 6. SPECIFICATION-SURPLUSAGE.
The word " glycerine" used in the specification may be rejected as surplusage.
1.
SAME-CLAIMS.
Where the claims are clear and distinct they will govern, rather than an ambiguous specification.
X·KESSON V.
45
Freder,k,H. Betts, for plaintiffs. J,ames A; Whitney, for defendant. BLATCHFORD, C. J. This is brought on letters patent granted to Pierre Cauhape, January 3, 1871, for an "improvement in pill machines." The specification states the invention to be an "improvement in the manufacture of pills." It says: " This invention relates to improvements in the manufacture of pills, and it consists in employment, either in a combination with a m?l1lding device for shaping pills, or other holder for them, .of a comb-bar with pins or needles, adapted for inserting a pin in each mould cavity f6r taking the 'pIlls and dipping them in the coating solution, and a clamp and stripper for taking them from the needles and redipping them,for filling and. covering: tb,e formed by pins, all described.. 1 i,s a seGtiQn of the mould and the devicj:lfor taking them, therefrom:' Figqre 2 is.a side 'view Of the device for taking' the pills from 'tIle niouldand 'dipping them; a'lsoa sectiona.l view of the 'bath, showing the'lllannerof dipping'them: 'Figure:3 i's a llerspectiveviewof the clamp, stripper, and the for taking them from the mould, showing the manner of strjpping ash:J,B: tjon of the l,llaIPP;apd figure 5 if> a face view of the same. ;J'. ,," " ', .. reference indicate corresponding parts. ' ' .. ' " The pills are to 'be formed in a mould or flask, A, eampqsed 6'f either hinged together or Ilot, each'having a part of the cavities, of there may be any convenient number, and from eooh cavity a groove to One side, 80 that: where the two ;parts pf moilld are closeddogetQeJ' a pin may be thrust into the pill for removing andhPlding itjand P1:con,nection this mould a comb-bar, B, is used, having as many pins Or C, as there are cavities projecting from it, the same distance apart as the cavities, for inserting into said cavities and taking the pillif therefrom',. ·. mould is then opened, the pills removed on thepihs, alldinserled in tile bath of glycerine, or other imbstance,with which they are to be coated. Then, for holding and redipping the pills to fill and cover the left \>y, the w:itl:\drawal of the pins, I use a clamp composed of the two bars, E, as shown in figure 3, and ttie elastic frictional strips, F, of India rubber or othe): like snbstance, the latter being placed on the faces of the said bars,which come together, when closed, over cavities, G, made considerably longer than the pillS, and opening out through the front edges of said hinged bars, as clearly shown in figures 3 and 5, in which the pills are inserted by opening the damp, presenting them thereto coincident with the cavities while On the pins, and drawing the latter back over the stripping-bar, H,placed in front of the ,clamp. and having the small grooves, I, in the upper surface, placed in front' of the cavities, fer guiding the pins of the comb-bar in placing the pills in the clamp. The pills are held by the soft, fiexible, and elastic strips; F, so that the ends having the holes project, as shown in figure 4, and may be dipped to cover and fill the holes, and then be discharged by opening the clamps. In practice the moulds, comb-bar, clamp, and stripper be made ;inany convenient length, and with any preferred number of holes best to < . ' . ,: · . , " - . ' . - , -.,
The
4.6
'Pl!:DERAL 'REPORTER.
effect a rapid operation, and any number of sets of apparatuses may be used. in case it may be required to retain the pills on the pins, or in the clamp, for idrying the substance with which they are coated. The pills may be taken 011 the comb-bar while in any suitable holder, after having beeu formed in other moulds, and I propose to use it in this way if found advisable,"
There are two claims, as follows: "(1) The combination of the comb-bar, B, clamp, E, and strippers, n, substantially in the manner described and for the purpose specified; (2) the combination of the moulds, X, with the comb-bar, B, substantially as and for the purpose specified."
The only claim in question in this suit is the second claim. That claim relates to the combination of the comb-bar, carrying the needles, with the pill-holder, substantially as and for the purpose described. The pill.holder is to have a number of cavities, so as to secure rapid work. There are to be as many needles as there are cavities. The mann-et of the combination is to have a groove extending from each cavity when We two parts forming the holder are closed, so that the needle may pass through the groove into the pill, and the pill be retained on and removed with the needle when the two parts of the holder are separated, so that the pills on all the needles may be rembved at once and be dipped, on the needles, all at once, into the 'eoatmg'solution. That is the purpose specified. . The result of this rapid work is a greater number of pills created in a given time, and 'thus a redudion of cost. . It is objected that the. specification states that the pills are to be formed mould, A," and that the needle is to be thrust into the pill while the pill is in the mould in which it is formed, and that the does· not form his pills in his pill-holder; also that "the moulds, A, mentioned in the. se.cond claim, are limited to moulds in which the pills are formed, and cannot include as holders, recep.tacles in :which the pills are not formed or made or moulded from the raw'material. But this view is contrary to the tenor of the text of the specification, which states that the invention consists in combining the comb-bar carryihg the needles with "a moulding device for shaping pills, or other holder for them," and that" the pills may be taken on the comb-bar while in any suitable holder, after having been formed. in other moulds." That being so, the expression, "the moulds, A/' in the secorid claim,must be held to mean any suitable holder of-the pills, whether the pills are formed in it or in another mould. It is also objected that a pill cannot be moulded, with prac-
47
tical success. in :the mould the,d:rawings of the patent.: a.nd, that the specification is misleading.in saying so. But nO such de,. fence is set up in tl;1.e answer. nor does the answerallege any fraudu;. lent or deceptive intention, nor is any such proved, nor is it shown that Cauhape' did not believe that he oouldmould pills in the moul"; nor that he had not done so. Moreover, the second claim. is .gQod, even' if the mould will not form the pill, provided it will act· as . holder for the pill. . It is also objected that there is between ·the: harand needles and the pill-holders, but only an aggregation of parts. This is an erroneous view. The pill,holder holds the pill while .the needle carried by the comb-bar is. being thrust into the. pill. concert of action takes. place when .the pill1 and, although such .ooncertof action continues only from the time t!te needle enters the pill. until the pill is removed by the needlE!, from the holder, yet the combination mltde by such concert of action. tinues as long as it needs to contillU6 j, a,ndtbe coneert of a.ctj,o.n..,®uld not exist at all, 80 as to impale the pill on the needle, if the pill were not carried by the holder and the needle were :p.otcarried by' the comb-bar. So, when the needlE! E!nters the pill,thereisadomb\,I)lk tion or concerto£. action between the comb-bar andneedle.and.'tbe holder carrying the pill. ,,:, . . It is also objected that the specification names glycerine: ,as a substance to be used for coating. and that glycerine isrrot ul3edas a.coating and will not act as such..: . This is immaterial. trom the invention. No suoh defence.is set up in the ,The specification refers to any coating solution which will cOfllt. The word "glycerine"may be rejected as surplusage. .Neither. one of the olaims bas any reference to any.pllll'ticuh1rcoating solution, nOr bas any specific coating solution aDYlcQnuectiou with the s.uhjeot-matter of either of the It is also objected that the:speoification sets, out with stating the invention to be a combination of the holder, the. comb-bar, the damp, and the stripper; and that in the claims there. aJ."e.two combinations (1) the oombcbair" tlta clamp. and the and (2) themollids and the comh-bar; and that thel'e is no claim fora combination of all four A combination of all four is an siblecoinbination, The' haldei' never acts when the a.oting.The .clamp, takes the place of "the moulds, A," when the atripperand the-oomb·bar:ate bl'Ough.t iato;actioD;..
48
FEDERAL REPORTER.
control, they being clear and distinct. Moreover, it is not a fair construction of the language of the statement of the invention, in the description, that it requires there should be a combination of the four elements. It speaks of the employment of a comb-bar and needles, iIl'Combinati6n with a monldingde'Vice or other holder; and then it speaks of the employment of a clamp and stripper with the needles. language might admit of a combination of the four, if such a combination could exist; but it equally admits of the two separate combinations which are claimed. The mould spawn in the drawings of the plaintiff'spatlmt does; as a receptaclefol' or a holder of the pill"act perfectly, with its groove and thEineedle and the to produce' the result specified the patent, if the pill be suitable for the holder in size and shape,although the pill be made in another mould. The holder has certain characteristic features. It is made of two parts, fitted t@gether, which enclose a'series of cavities for pills, in which the pills are so held as to receive; at the same time, the needles carried by the comb ba,r, and to be removed all together by the needles. A gr{)ove extends from each cavity through the body of the holder, and acts as a Channelway and a guide for the needle while it is being thrust into the pill. One part of the holder is removable from the oth'er part in such a. way that the removal of it lays bare all the pills in all the cavities and faces all the needles at once, so as to enable all the needles and all the pills to be carried away at the same time by the comb-bar. The comb-bar has as many needles as there are grooves or cavities or pills; and the needles are the same distance from each other as are the grooves. 'Thns the needle is accurately guided through and by the groove into the pill. The needle is sharp-pointed, and can enter and remove the pill without injuring it, and is so small that nearly all the surface of the pill can be coated while the pill is on the needle, and the needle can afterwards be removed from the pill without injuring it. The apparatus is shown to be a very valuable one in the business ofsupplying the market with gelatine-coated pills. The structure URed by the defendant, Exhibit No.3, has a holder, provided with a large number of holes in its surface, to hold pills, the holes being shaped to confortn to the shape of the pills and,to support the pills properly for the action of the needles. There is, also a frame carrying needles, which pass through and are guided by holes or grooves in and through another frame, the points of the needles projecting beyond the latter frame., There is one hole for each
in
all
II'XEasON V. CARNRICK.
49
needle. In use, the receptacles in the pill-holder are filled with pills. 'fhe points of the needles are at distances apart from each other cor· responding with the distances between the pills, and are thrust into the pills until the face of the grooved frame comes against the face of the holder. The needle frame and the grooved frame are removed together, with the pills impaled on the points, and the pills are then dipped, in this condition, into the coating solution. There is the same combination as in the second claim of the plaintiff's guiding grbOve, and pill receptacle. patent, of comb·bar, There is a merely formal change. The gUiding groove,instead of \ being ,in' the frame which contains the pill receptacles, is in a frame which is attached to the needle frame. But the grooves in the defend. dan.t's apparatus act to support the needles laterally against diverge ing forces, and thus to guide them and insure their penetrating the pills properly. It must be held that the defendant's apparatus infl'inges the second claim of 'the plaintiffs' patent. The guiding grooves in it, by allowing the frame in which they are made to be drawn towards the pills, while impaled, and after they are dipped, permit such frame to be used as a stripper, to free the pills from the needles; but this is an ,additional function added to the use of the Cauhape invention.The defendant's apparatus has all the essential features of the combination covered by the second claim of the plaintiffs' patent, as before defined. There is nothing in the provisional specification of Newton 'which )'lhowsthe Cauhape invention, or the apparatus of the defendant. There are no drawings with it. The description is ambiguous, and it is far from clear how the apparatus was made. It is not a . machine for making pills, but one for making capsules. There is no idea in it of a plurality of pills all impaled, and freed ,together. There are no guiding grooves, and no sharp-pointed needles or pins. As to the Goward patent, Cauhape's application was filed before Goward's specification was sworn to. . As to the Murdoch and Haynes patent, the defendant has introduced no evidence to show its bearing. On the contrary, the plai,ltiffs' expert shows that what is described in it has no relevancy to either the plaintiffs' apparatus or the defendant's. The Cordey apparatus amOUnts to no anticipation of either the plaintiffs' or the defendant's. No original apparatus is produced. The matter is one of recollection, after the lapse of many years. The v.9.no.1-'-4
50
witnesses do not agree, and there is great doubt and obscurity. Whatever there was, there were no guiding grooves and no sharp nothing adapted to pick up pills which were to be coated and then stripped so as to leave no material trace of the puncture. Even if Cauhape knew of all that was ther.e at the time, there was inventionin what he patented. The assignment from to the plaintiffs is satisfactorily proved as a valid assignment. The testimony of Wickham fully explains the interlineations. All the views urged on the part of the defendant have been carefully considered, although only the material ones have been commented on. There must be a decree for the plaintiffs as to the second claim of the patent, in this suit, and also in the suit against Neynaber.
MOCONNOCHIE and others v. 1. ADIDRALTy-JURISDICTION-Co-SALVORS.
KERR
and another.
(District Oourt, 8. b. New York. ,August 26, 1881.) vourts of admiralty have jurisdiction of an action to compel distribtition by one co-salvor, who has obtained the entire 'sIlJ\'age compensation,' among the other co-salvors entitled. 2. SALVAGE AND TOWAGE SEUVICES.
Tue steam-ship Colon, bound from Aspinwall to New York, became disahled in her machinery in the Bahamas. She had a 'full set of sails,' but was ,. at the mercy of the winds," and a hurricane, whieh was Dot unusual in those watets, "would have put the ship in jeopardy." .Being nearly becalmed, she employed the Pomona, bound for Jamaica, to tow her to the ;nearest anchorage, 57 miles distant, for repairs. Held, that the service rendered was in the nature of· salvage, and not a" mere towage service." Bemble it is not within the proper discretion of a master to deviate from his voyage to render,a mere towage service for the simple can" venience of another vessel in expediting her passage, unattended b'y any, circumstances of dilnger; and if such circumstances exist the service is salvage, for which officers and crew are entitled to share in the compensation. 3. SALVAGE-ARBITRATION-AWARD-BINDING ON PARTIES ONLY.
The owner and captain of the Pomona, having filed a libel against tue Colon, claiming salvage" in behalf of all lmtitled," the respective owners, after answer and before submitted to arbitration the question whether the service was salvage, and the amount of compensation. The arbitrator decided that the service :ivas not salvage, an,d awarded $3,000 to the .owner of the Pomona as for a towage service,which amount was paid to him,and the suit discontinued. Thereupon the present libel was filed by three of the crew to compel distribution of that money among the co-salvors. ' . Held, that as the $3,000 was awarded on the lJasis of a to"{age service only,