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fully in formed, he was inclined to question it. And while this is by no means conclusive, and it is not, of course, to be expected that, with becoming modesty, he would bespeak more for his own contribution to the art, however conspicuous, than it was entitled to, to the disparagement of others, he would certainly be the first to detect their shortcomings, and to appreciate whether the advance claimed was all that was said of it. Nor is it true that this advance was one of degree merely. The fact is, as stated by Dr. Sauveur, confirmed by Dr. Chandler, and already alluded to—which Prof. Langley and Prof. Richards, the defendants' experts, men of the highest professional standing, by the way, do not seem to deny—that alloys manufactured in accordance with the patent are sharply and critically different from those not so manufactured, the difference being one of kind, all tincopper-lead alloys dividing into those which contain the relative proportions named in the patent, which, by reason of their high setting point and the absence of eutectic compounds, permit the introduction of a large quantum of lead, and those which fall outside of these limits, where it is not practicable. This does not present simply the case of a copper-tin-lead alloy, low in tin and high in lead, nor yet of a specially composed journal-bearing material. But it consists in the establishment of a precise rule or formula, by which within certain limits, to the extent desired, and without other than the ordinary foundry methods, a homogeneous mixture of this general character, known to be of the highest utility for the purpose, is capable of being successfully produced. Standing for this, as the patent clearly does, there is nothing in what is so sought to be urged against it which detracts from the merit or the validity of the invention.
Neither is there in the various anticipations charged. It is said, for instance, that a bronze coin of the Atilia family of the date of 45 B. C., an analysis of which was given in a work on mixed metals and metallic alloys, published by A. H. Hiorns in 1890, was made of a composition within the terms of the patent; there being 4.77 per cent. of tin, 25.43 per cent. of lead and 68.72 per cent, of copper. But an ancient coin is no guide for a modern railroad journal, and a disclosure with respect to the one teaches nothing of value as to the other. Conceding, therefore, that the analysis so published shows that an alloy of the character given could be successfully coined, it was not to be assumed that it could be made use of under the very different conditions which obtain in the case of a journal bearing.
It is further said that the Hahn (1873) British patent is for a copper-tin-lead alloy, which is suggested as suitable, among other things, for anti-friction bearings, the copper being stated at from 70 to 73 per cent., the tin from 9 to 11 per cent., and the lead from 15 to 20 per cent., with zinc from 12 to 1 per cent. But on this there is no occasion to dwell. Not only is it outside of the proportions named in the patent and the critical relation upon which these are based, but it does not approach by a considerable so near as Dr. Dudley did, and, if his experiments did not anticipate, neither by so much the more does this.
The Vaughan (1874) British patent stands no differently. It too is for an anti-friction bearing metal, in which tin, copper, and lead are the principal constituents, with a certain amount of phosphorus and zinc. It is of interest as advancing the theory, of which use is made in the patent in suit, as well as in all such mixtures, that, in the process of melting, alloys of the metals named are formed having different degrees of fusibility and solidifying at different temperatures, whereby a porous cellular mass of the harder and less fusible metals is produced, in which the softer and more easily melted are held, the interstices or cells of the one being filled with the others, presenting a soft-bearing surface for contact with the friction producing parts. But, outside of this, the disclosures of the patent are of little consequence. The proportion of tin suggested runs all the way from 4 to 15 per cent., and lead the same, varied by phosphorus and zinc, the latter being given at from 8 to 20 per cent., with enough copper added to it all to make up 100 parts, between which extremes the inventor does not seem to discriminate. All this to too wide of the mark to require discussion.
So, also, is the Hewitt (1901), besides which it is later in date than the patent in suit, from which time alone it takes effect as a publication. Bates v. Coe, 98 U. S. 31, 25 L. Ed. 68; Diamond Drill Co. v. Kelley (C. C.) 120 Fed. 282. And, even assuming that the date of the application, which is earlier, could be considered, it amounts to no more than the other patents referred to, if so much, it being doubtful, also, whether it states anything practicable.
This brings us to the real issue in the case, which is more seriousthe alleged prior knowledge and use of the invention by the Brady Metal Company, with which Mr. Brady, the president of the defendant company, was formerly associated. The contention is that in April, 1896, some four years before the application for the present patent, the Brady Metal Company, which was an extensive manufacturer of railroad bearings, made a successful casting of substantially the same proportions of tin, lead, and copper, as are now practiced by the defendants within the terms of the patent, and continued to make use of the same from that time on, as have the Brady Brass Company succeeding them. This, if established, is, of course, the end of the patent, the novelty of which it effectively negatives. There can be no question, under the evidence, that at the date stated the Brady Metal Company did make a journal composed of copper, tin, and lead in the proportions suggested. This is proved by documentary evidence which cannot be controverted, the original letters from the metallurgical chemists who made the analysis having been produced, where the copper is given at 65.29 per cent., the tin at 7.54 per cent., and the lead at 26.56 per cent., with traces of zinc and iron which are not material, the percentage of tin being subsequently corrected and reduced to 5.93, by taking out the antimony which had been inadvertently included. But while a single previous knowledge or use, such as this, may be enough to negative novelty (Coffin v. Ogden, 18 Wall. 120, 21 L. Ed. 821; Daniel v. Restein [C. C.] 131 Fed. 469), the use must be something more than an accidental or casual one (Tilghman v. Proctor, 102 U. S. 707, 26 L. Ed. 279). It must, indeed, be so far understood and practiced or persisted in as to become an established fact, accessible to the public and contributing definitely to the sum of human knowledge. Gayler v. Wilder, 10 How. 477, 497, 13 L. Ed. 501; Acme Flexible Clasp Co. v. Cary Mfg. Co. (C. C.) 96 Fed. 344. It is incumbent on the defendants, therefore, to show that the prior use which is set up was so far appreciated at the time, and adopted or followed, as to create a well-understood, if not an established, practice, capable at any time of being resorted to, and not something incidental, indefinite, and fugitive, which is now hunted up and brought forward simply for the purpose of defeating the patent. It is just here that the use by the Brady Metal Company, which is relied upon, is challenged, and is open to question. It is true that the requirements in this respect have apparently been met, if the statements of Mr. Brady, the president of the company, as well as of Mr. Reubens, his assistant, and Mr. Adams, the assistant superintendent, are taken broadly, as they are made, without discrimination. Mr. Brady, for instance, says, in substance, that for some time prior to April, 1896, they had been experimenting to get a cheap low-grade mixture that would be high in lead and low in tin, and that, upon the occasion in question, the particular bearing journal appearing to be so good, they thought it an excellent sample, and sent it to their chemists to be analyzed accordingly, and that, when it came back, “Eureka” would best express his feelings with regard to it; that he at once sent to Mr. Onslow, the superintendent of the works (now dead), for another piece; and that from then on bearings were produced and sold by them of substantially the proportions of tin, lead, and copper so shown, not exclusively, indeed, there being bearings made by them of different composition and character, and some under specific orders, but definitely, extensively, and continuously, so long as he was connected with the Brady Metal Company where this occurred, and afterwards with the Brady Brass Company, upon its organization.
But, comprehensive as this testimony may seem to be, upon examining it critically, it does not stand the test; its deficiencies not being disclosed in this résumé of it. The principal difficulty with it is that it deals in generalities, without much knowledge. Mr. Brady, as he has to admit, only knew in a broad way what was going on at the works, for which he had to rely on Mr. Onslow, the superintendent, his own office being elsewhere. That which they were striving for, as he says, was a cheap, low-grade bearing, such evidently as would satisfy the trade, and allow them to compete successfully with others, rather than one of any particular excellence. The piece sent to the chemists for analysis was not selected upon any such account as is stated by Mr. Brady, but, as is shown by the letter 2 to Mr. Onslow of April 13, 1896, ordering it, was produced for the express purpose of having a test, being made up, as directed, of 50 per cent. clean copper and 50 per cent. of copper shells, with whatever tin was deemed necessary. The object of the test is not disclosed, nor the considerations which controlled the mixture, but it was evidently to see how far copper shells would economically answer; the result which followed being regarded solely to that end. That this result was altogether haphazard and unexpected is shown, not only by the way it was brought about, but by the fact that, in his estimate of the contents of the copper shells, Mr. Onslow took them for 50 per cent, lead and 50 per cent, copper, when, by the analysis made at the same time with that of the journal, they were found to be 79.66 per cent. lead, as against 9.72 per cent. copper, the rest being tin and antimony, and it was because of this mistake that the relative percentages of tin and lead turned out as they did in the casting. This, of course, would not matter, provided the effect of these percentages was appreciated, and the proportions shown were adopted and followed. But clearly that was not the case. The journal analyzed was a single test piece of 19 pounds, of which Mr. Onslow, upon being applied to, could not furnish any more, not having saved any, and there was apparently no call upon him to reproduce it. That there was any change at the works in the mixture of these metals as a result of the showing made is not pretended. On the contrary, Mr. Brady says that they had been putting them together in about the same shape for a number of years, and simply continued on as they had been doing; the time assigned for this previous practice being anywhere from 10 to 15 years, carrying it back of even the Dudley experiments. It is difficult to understand, if this was the case, why he was particularly elated or moved to cry out “Eureka” as to a matter with which they had been so long acquainted. For the prior, as well as the subsequent, course at the works, however we have only the say-so of Mr. Brady and his assistants, no record being produced, nor any working practice shown; the men who weighed out and mixed the metals, as we shall presently see, who ought to be acquainted with it, if any one, knowing nothing about it. Mr. Brady also admits that no regard was paid to impurities in the shape of iron, zinc, etc., which were permitted as high on an average as 3 or 4 per cent., with a maximum at times of 8 or 10, which not only carries the practice outside of the patent, where only incidental or inappreciable impurities are allowed, but, as is shown by the evidence, with impurities in such quantity, commercial castings could not be made. It is thus evident that the chance proportions of tin and lead, shown by the analysis relied on, have simply been seized upon, because they happen to fall within the terms of the patent, in the hope that they may do duty as an instance of prior knowledge and use, without their having any such real character. In this respect Dr. Dudley's advice, in his letter of September, 1903, to look up their records, and see whether they would not show bearings containing over 20 per cent. lead and less than i per cent. tin, seems to have been effectively followed, and may have inspired this whole defense; suggesting a lack of independent knowledge on the subject outside of it. But, however that may be, no particular virtue was recognized in the mixture at the time, except as it might help to produce a cheap or low-grade bearing, and even now is stoutly denied; success, as it is claimed, residing in the manner of mixing and melting, which the defendants' workmen have achieved by experience and skill without regard to proportions. There was thus, as the outcome of the disclosure made by the analysis, no modification of the practice previously pursued, no rule deduced for future guidance, no excellence of quality perceived, except as it made for cheapness. While, then, taking Mr. Brady's testimony at the best, and allowing all that can be fairly claimed for it, it may show that, upon the one occasion, by chance experiment, the terms of the patent were realized, and that to this extent and in this sense a prior use may have been established, there must be something more in order to satisfy the statute than that which was so purely accidental, unappreciated, ineffective, and impermanent.
2 This letter was not put in evidence at the hearing before the examiner, but was produced by the defendants upon call by the court, and is treated as though it were regularly offered.
Nor is this materially improved by the testimony of Mr. Reubens or Mr. Adams, which is not, of course, to be lost sight of. The knowledge of the former beyond that of Mr. Brady may be doubted. As assistant to the president, and his stenographer, he was no more likely to be acquainted with what was going on at the works than his superior. And while, as chemist, which he also seems to have been, he may have been in shape to make analyses, as well as to interpret them, there is nothing to prove that he ever did anything for the company in this line. He does say that he talked over with Mr. Onslow, from time to time, the percentages of tin and lead which were being used, and he is satisfied from this, as he says, and the one particular analysis which was made, that the directions for more lead and less tin were being followed. The statements of Mr. Onslow, as to what he was doing, are mere hearsay, and, of course, not evidence. But, accepting what passed between them in this way as indicative of what was desired and was being aimed at, it amounts to no more than that they were striving for as little tin and as much lead as was practicable, which may be conceded; that being the wish of every one. It is no proof, however, of the actual percentages successfully realized, and by the analyses made in July, 1896, of some of the products of these works by the same parties who made the earlier one in April, lead and tin are shown by no means within the proportions now claimed, to say nothing of the large per cent. of zinc present, thus proving that, notwithstanding the disclosure made by the first analysis, it had up to that time resulted in no confirmed knowledge or practice such as is set up, which naturally throws doubt as to any that followed.
It is true that in the testimony of Mr. Adams we apparently have something more specific. He was assistant superintendent under Mr. Onslow, and thus presumably acquainted with what was being done. And he states, positively and definitely, that at both the Brady Metal Company and the Brady Brass Company, where he was also employed as superintendent, as high as 30 per cent. of lead, and as low as 5 per cent. of tin, were successfully employed in making bearing alloys. But neither does this bear the requisite scrutiny. The only way that he can swear to it, as he says, is that upon one occasion he weighed out 30 pounds of lead himself and put it into the crucible. But, without holding him down to any such particularity, he admits that, as a matter of general practice, they were making use of composition scrap, consisting of copper shells, turnings, old oil cups, castings, “and such stuff," as much lead being put in as they could hold up. But this is just the indiscriminate way that every one else was