« EelmineJätka »
shown in letters patent No. 218,354, granted August 5, 1879, to Woodward & Brock. But the evidence does not show any mechanism wherein a pegging device is so constructed as that, when set in operation, it will drive only one nail, and at the same time is so constructed as to be actuated by the pressure of the work. The function of the combination is, therefore, new, and the patent is entitled to a broad construction accordingly. Under such a construction, the respondents do not deny that the machines made by them operate by devices which are the mechanical equivalent of the devices claimed in the patent. I shall not compare the two devices further than to say thąt the one of the two machines made by the respondents is described in letters patent No. 426,160, granted April 22, 1890, to the respondent Woodward; and that both of the contain, as I view it, devices equivalent to those shown in the patent.
The first and fifth claims are for a combination of the jack, the pegging mechanism, and the actuating mechanism, with an weighted foot treadle, so constructed as to press the work against the actuating mechanism when the treadle is depressed. I do not think that this describes a patentable combination. The treadle plays no part in the function of the combination. It moves the work towards and against the actuating mechanism, and so occasions the operation of the mechanical combination. But it takes no part in it. There is, no doubt, a steam or other engine, with suitable belt or gearing, which moves the pegging mechanism, and also the actuating mechanism; but neither engine nor treadle are any part of the mechanism, which, acting together, and mutually interacting between its parts, performs the new function, and is thus itself the new machine invented by the patentee. The decree therefore will be that the respondents infringe the second, third, and fourth claims, and that the first and fifth claims are invalid.
BLAIR CAMICRA CO. v. BARKER et al.
(Circuit Court, D. Massachusetts. January 17, 1893.)
Letters patent No. 294,959, issued March 11, 1884, to Thomas Henry Blair, covering a combination with the frame and partition of a camera, of two adjustable bars, closing the mouths of the plate chambers, respectively, when in their inmost positions, must, if sustainable at all as containing novelty or utility, be restricted substantially to the structure described, and is not infringed by a camera with bars which are on the outside of the end bar of the plate-holder frame, and are not adapted to close the mouths of the plate chamber. In Equity. Suit by the Blair Camera Company against Frank R. Barker and others to restrain infringement of a patent. missed.
John L. S. Roberts, for complainant.
CARPENTER, District Judge. This is a bill in equity to enjoin an alleged infringement of letters patent No. 294,959, granted March 11, 1884, to Thomas Henry Blair, and assigned to the complainant. The claim alleged to be infringed is as follows:
“(1) In combination with the frame, A, and partition, the adjustable bars, F, F, these bars closing the mouths of the plate chamber, respectively, and, when in their inmost positious, extending into such chamber beyond the inner edge of the frame, substantially as stated.”
The purpose of these adjustable bars is to fasten the photographic plate within the plate holder. In this respect they do not differ from other bolts which are a very old device for a similar purpose. This bolt, however, may more properly be described as a "sliding bar;" since the name of "bolt," as commonly used, would be applied to a fastening which slides or moves in the direction of its longest diameter, while the bars of the patent are apparently so formed as to have their longest diameter at right angles with the line of their motion. The drawing and specification, indeed, do not make this certain; but they make it probable, and the name of "bar," which the patentee gives to his device, may, perhaps, be said to imply so much. But a sliding bar, having, among other functions, that given to the adjustable bars of the patent, is not a new device. Such a bar appears in the drawing annexed to letters patent No. 93,669, granted August 17, 1869, to Joseph Buchtel. The claim of the patent, therefore, must be so limited as to cover only a sliding bar in a camera, and constructed with reference to the other parts of the camera, substantially as described in the specification. It appears by the claim that when the adjustable bars are moved inward, so as to fasten the plate, they must close the “mouths” of the plate chamber. These "mouths" are evidently the slots in the frame through which the bars slide. The expert, called for the complainant, says that the bars work through the end bar of the plate-holder frame; that is, they work between the two outer sides of said bar. The words of the claim which refer to the bars as "closing the mouths of the plate chamber, respectively," also seem to me to point to the same conclusion. There are, so far as I see, no other apertures to which the plural word "mouths” could be applied.
In the plate holder made by the respondents, the sliding barsagain quoting the expert called by complainant—"are outside of the end bar of the plate-holder frame, adjacent to which they are fitted.” They are not adapted to close the mouths of the plate chamber, since the device of the respondents contains no such mouths. They are not, therefore, either in structure or in function, the bars of the patent.
The respondents have defended this suit on the ground of insufficiency of specification in the patent, and on the ground of want of patentable novelty. It is true that the specification is not very clear, but I think, by the aid of the drawings and a knowledge of the art, it is possible to make out what the patentee intends; and, if there be any utility in the specific construction of the sliding bars shown on the patent, I think they may be considered the subject of
invention. On the question of utility, I have no evidence here, and therefore I do not pass on that question. The bill must be dismissed, on the ground that the respondents do not infringe.
UHLMAN et al. y. ARNHOLDT & SCHAEFER BREWING CO.
The invention described in letters patent No. 378,879, issued February 21, 1888, to Heinrich Stockheim for a filtering process for beer, was not known or used by others in this country prior to the time when knowl«dge thereof was conveyed to the inventor's agents or attorneys in this
country for the purpose of applying for the patent. 2. SAME-CONSTRUCTION OF CLAIMS-PROCESS AND FUNCTION OF MACHINE.
The four claims of the Stockheim patent, being all directed to the accornplishment of the filtration of beer in its passage from the store cask to the keg into which it is drawn for sale, without material loss of gas, and without foaming in the keg, are valid, as covering a true "process," and
not merely the function of a machine. 3. SAME-INVENTION-ANTICIPATION.
The Stockheim patent was not anticipated by the Enzinger patent of November 12, 1878, or by the description contained in the Enzinger "pamphlet," or by any othez patents shown in evidence, and is a valid process
patent. Uhlmann v. Brewing Co., 41 Fed. Rep. 132, approved. 4. SAME-INFRINGEMENT.
This patent is infringed by defendant, as the process practiced by it
in the use of the "Klein filter" is the same process covered by the patent. 5. SAME-EVIDENCE OF PRIOR KNOWLEDGE AND Use.
On i question as to which of two inventions, both made in Germany, was first "known or used” in this country, within the meaning of Rev. St. § 4886, priority for one of them cannot be established by showing that ? certain letter, with inclosures purporting to describe the invention, was received and thoroughly examined by a firm of patent lawyers in this coun. try, when the papers were of such a nature that even the most skilled expert could not have gleaned from them any practical or sufficient knowl.
edge of either invention to put it into practical operation. 6. EVIDENCE-PRESUMPTIONS_RECEIPT OF LETTERS.
The time at which a letter from Germany was received in this country cannot be established by witnesses who base their testimcny entirely upon presumptions or calculations resting upon the date of the letter; for the date of a letter alone affords no basis whatever for a calculation as to the time of its receipt, and is not even proof of the time of mailing, or that it was ever mailed.
In Equity. Bill by Simon Uhlman and Frederick Uhlman against the Arnholdt & Schaefer Brewing Company for infringement of a patent. Decree for complainants.
Wetmore & Jenner, for complainants.
DALLAS, Circuit Judge. This is a suit for alleged infringement of patent No. 378,379, dated February 21, 1889, granted to Heinrich Stockheim for a filtering process for beer. It is now for decision upon
bill, answer, replication, and proofs. The specification states the object of the alleged invention, its importance, the method commonly in prior use in this country, the defects of that method, the objections to mechanical filtration as theretofore practiced, and the absence of those objections from what the patentee designates as his "improved method of filtering," as follows:
“The object of this invention is the filtration of beer which contains mechanical impurities, and also carbonic acid gas under pressure. In the filtration of such liquids it is important that the liquid beer, for example, should be filtered continuously in its passage from the store cask to the keg into which it is drawn for sale, without material loss of the gas contained in the beer, and without material foaming in the keg into which the filtered beer is delivered. The methods in use prior to my invention for clearing beer of the yeast which is produced in it, as a product of fermentation, have generally involved the use of isinglass, by which the yeasty particles are collected and precipitated to the bottom of the tun or cask containing the beer. Isinglass is, however, costly, and involves a very large annual expenditure where any considerable amount of beer is brewed, and much trouble in preparing it for use as a 'tining,' and it is slow in its operation; nor are the results entirely satisfactory, as all of the yeasty particles are not thereby removed, but som: portion remains, and, yeast being a fungous growth, that which remains propagates more yeast, fermentation continues, and in consequence the beer is apt to become cloudy and spoiled. This result is especially noticeable in beer which is bottled and intended to be kept for some time, either for export or domestic use. In mechanical filtration, variations in the supply of beer to the filter, and in the speed with which the filtered beer is discharged into the keg, permit the carbonic acid gas generated in the beer to escape in considerable quantities while the beer is passing through the filter; and the beer, having lost its carbonic acid gas, or a considerable quantity of it, comes out flat and insipid, or is discharged into the keg in a foamy condition, and soon becomes worthless. Besides which the escape of the gas in the filter causes foaming therein, the foam collects upon and clogs the pores of the filtering substance, or the gas permeates the filtering substance, thereby affecting its efficiency as a separator of mechanical impurities, or both results ensue, and thus the operation of the filter is materially retarded, the variations of supply and discharge are increased, and in consequence the filtering substance fails to collect much of the yeast. To modify these results would require the frequent changing of the filtering substance, and this vould involve, not only expense for tiltering material, but considerable loss of beer, and delays in the filtering operation. Continuous filtration, without material variation in the speed with which the beer is discharged from the cask, is also important, because, is the speed of the discharge is materially diminished the accumulated air pressure will burst the cask, unless it is closely watched; and the cask being usually iu a cellar, where neither continuous sunlight nor gislight is permitted, because either would elevate the temperature of the cellar, such watching is inconvenient. For these reasons, ainong others, mechanical filtration has not, I believe, Leen generally or successfully practiced by beer lrewers before my invention. By my improved method of filtering, I dispense entirely with the use of isinglass or other finings, and thus very great economy is secured. The beer is thoroughly clarified, all, or substantially all, of the yeasty particles being removed. The operation of filtering is rapid and continuous, without material variation in speed, and without the necessity of changing or cleansing the filtering substances, the carbonic acid gas is substantially preserved in the beer, and the beer comes out of the filter, retaining all its brilliancy and liveliness. ready to be discharged into the keg at the racking-off bench without any danger of subsequent cloudiness or other deterioration due to the filtration, and without having had imparted to it any undesirable taste."
It is proper, though not important, that it should be noted, in connection with the foregoing extract, that in the actual use of the Stock
heim apparatus, and practice of the process in suit, isinglass is not entirely dispensed with, but is, in many if not in all instances, used as a valuable, if not necessary, adjunct.
One of the several defenses interposed may be separately and first considered. It is that the alleged Stockheim invention was anticipated by the Klein invention and patent, which the defendant uses. The Klein dates of application and of patent are both earlier than those of the Stockheim. The only question is as to the respective dates of invention. Whichever of the alleged inventions was new under the statute, (section 4886,) is first in time, and therefore is first in right; and of their relative novelty the statutory tests, so far as material to this case, are embodied in the inquiry, which of them was first known or used in this country, or described in any printed publication in this or any foreign country? They were, in fact, both invented in Germany, but the dates of their respective in vention in this country are to be determined as I have indicated; and if it should be found that the Klein filter, as used by the defendant, preceded the Stockheim process, it would result, irrespective of other questions, that such use of the former could not be an infringement of the latter.
For the Klein, as well as for the Stockheim, dates, respectively, earlier than February-March, 1887, have been claimed; but to recapit. ulate the evidence, presented in support of those claims, upon either side, would yreatly extend this opinion, and, as I think, without necessity. It is enough to say, with respect to them, that, having ex. amined that evidence with care, I am fully satisfied that an anticipatory date for the Klein has not been thereby established. On the contrary, I have arrived at the conclusion that the priority of the Stockheim has been shown, independently of the single question which I am about to state, and which alone, because of the prominence given it in argument, I feel called upon to discuss in this connection. For the defendant it is contended (complainants denying) that the Klein date has been carried back as far, at least, as February 20, 1887, and that March 2, 1887, set up (but disputed) as an alternative (not as the earliest) date for the Stockheim, has been, accordingly, clearly anticipated. To determine whether or not this contention should be sustained, and also whether the Stockheim March date has been established, the evidence relating to both of these asserted dates must be considered.
The claim of the February, 1887, date for the Klein is founded upon two letters, with inclosures, which were mailed from Germany, and received in this country by a firm of patent solicitors to whom they had been addressed for the purpose of enabling them to proceed for the procurement of a United States patent. The first of these letters, dated January 22, 1887, and its inclosures, were received upon February 8, 1887. They were read on the day of their receipt, or soon thereafter, and certainly before March 2, 1887; and the description and drawings, including the inclosures, were “turned over" before March 2, 1887, to an employe of the firin, “with instructions to him to put the case in proper shape for tiling.” The evidence entirely satisfies me upon these points, and has also, though not quite so