the dredge without fault for injury to a gas pipe, the Standard Gaslight Company of the City of New York appeals. Affirmed.

For opinion below, see 222 Fed. 576.

The final decree of the District Court was entered upon the petition of the R. G. Packard Company as owner of dredge No. 6, adjudging said dredge to have been without fault in respect of the injury set forth in the petition. Petitioner's dredge was engaged in improving the navigation of the Harlem River, beneath the bottom of which stream extended pipes or mains for the conveyance of illuminating gas belonging to claimant, Standard Gaslight Company. The operation of the dredge broke the Standard Company's main, causing considerable damage. To recover for this injury the Standard Company began an action at law against the Packard Company. Thereupon this petition was filed, denying all liability and praying in the usual alternative for a decree limiting liability to the value of the dredge. The District Court held: (1) That it had jurisdiction to entertain the proceeding, and (2) that the injury wrought had been inflicted without fault or negligence of petitioner; a conclusion involving the finding (3) that there was no privity or knowledge on the part of the petitioner. From final decree in accordance with the foregoing, appeal was taken by the Standard Company.

Shearman & Sterling, of New York City (John A. Garver and Carl A. Mead, both of New York City, of counsel), for appellant.

Alexander & Ash, of New York City (Mark Ash, of New York City, of counsel), for appellee.

Before COXE, WARD, and HOUGH, Circuit Judges.

HOUGH, Circuit Judge (after stating the facts as above). While this appeal rests principally upon alleged infirmity of jurisdiction in the court below, error is also asserted in that the trial judge failed to find the breaking of the Standard Company's main a trespass, and refused to deny limitation on the ground of privity or knowledge imputable to the Packard Company.

[1] Release from all liability was granted because petitioner affirmatively proved freedom from negligence in the management of its dredge; whereas, if the injury to the main resulted from a trespass, no exercise of care would avoid responsibility, under authorities of which Frontier, etc., Co. v. Hepp, 66 Misc. Rep. 265, 121 N. Y. Supp. 460, is a fair example.

Assuming, with appellant, that the main was broken by the spud of the dredge descending into the ground under water where the pipe was buried, to call such injurious contact a trespass involves the assumption that appellant's pipe had a right in or to the ground covering it, or a right to be where it was, superior to that of the dredge spud. Granting for purposes of argument (but not holding) that Standard Company had duly obtained permission from all necessary authorities to lay pipes where they were, it is not true that, as to the ground under the navigable waters of the Harlem River, the pipes or their owner had rights superior to a craft which was improving the navigation of the stream, and such was the occupation of the dredge when it fouled the main. The dredge was responsible only for negligence; the rights of navigation and of improving navigability were paramount. Our decision in Western Union, etc., Co. v. Inman, etc., Co., 59 Fed. 365, 8 C. C. A. 152, is applicable.

[2] The assertion of privity or knowledge, made at bar, must be considered under the rule stated by Wallace, J., in The Republic, 61 Fed. 113, 9 C. C. A. 390, that to "affect a corporate shipowner with privity or knowledge, such privity or knowledge must be of the managing officers." Our later decisions (In re Smith & Sons, 193 Fed. 395, 113 C. C. A. 391, and In re P. Sanford Ross, 204 Fed. 248, 122 C. C. A. 516) have but applied that rule to other facts. In this case, if it be assumed that petititioner's shore manager was a managing officer, we agree with the lower court that, after reasonable efforts to ascertain the location of claimant's pipes, he did not know where they were, and was not negligent in respect of such ignorance.

[3] The ground for challenging jurisdiction herein is briefly that the wrong complained of, and for which Standard Company brought suit, is not a maritime tort. As it was not wrought on or in the water, this is admitted. But the limitation proceeding was brought in strict conformity with Richardson v. Harmon, 222 U. S. 96, 32 Sup. Ct. 27, 56 L. Ed. 110, and this is also admitted. The rest of appellant's proposition is that this decision was erroneous, in that the Supreme Court, while holding that a nonmaritime tort might be limited against, overlooked the fact that such limitation necessarily constituted an exercise of nonmaritime jurisdiction-something beyond the constitutional grant of power to the judicial arm of the government, and equally beyond the power of Congress to create or confer.

It would, indeed, be remarkable that a point such as this could be overlooked by the court, even had it not been argued. An examination of the record and briefs in that case shows that the District Court certified as the reason for dismissing the petition in the lower court that the act of 1884 (Act June 26, 1884, c. 121, 23 Stat. 57) did "not limit the liability of the shipowner in respect of any transaction or subject, except those within the jurisdiction of the District Court sitting as a court of admiralty.". In argument it was plainly put, and by distinguished counsel, that proceedings for limitation of a shipowner's liability from all demands, whether ex contractu or ex delicto, are within the general maritime law and admiralty jurisdiction, and that such a proceeding was an independent head of jurisdiction, without regard to whether the claims limited against were such as might have been sued upon in the admiralty or not.

There is no doubt that the case relied upon is controlling authority here, and the decree appealed from is affirmed, with costs.

NATIONAL MACH. CORP., Inc., v. BENTHALL MACH, CO., Inc.

(Circuit Court of Appeals, Fourth Circuit. November 23, 1916.)

No. 1439.

1. PATENTS 328-INVENTION-PEANUT STEMMING SAW.

The Benthall patent, No. 890,401, for a peanut stemming saw consisting of a disk with teeth on its periphery, and the essential features of which are that the teeth have a straight front edge, the heels of the teeth are farther from the center of the disk than the points thereof, and the edges of the adjacent teeth meet at an acute angle, is void for lack of invention in view of the prior and analogous arts; also held not infringed. 2. PATENTS 112(1)—VALIDITY-EFFECT OF DECISION OF PATENT OFFICE.

The decision of the Patent Office in the allowance and issue of a patent creates a presumptive right only, and upon all the questions involved the validity of the patent is subject to examination by the courts.

[Ed. Note. For other cases, see Patents, Cent. Dig. § 162.]

3. PATENTS 26(2)—INVENTION-COMBINATION OF OLD ELEMENTS.

While a new combination of old things may be patentable, it is only where the combination is new and the combined elements co-operate to produce a new result; otherwise their joinder is a mere aggregation, and not patentable.

[Ed. Note. For other cases, see Patents, Cent. Dig. § 29.]

4. PATENTS 58-ANTICIPATION EVIDENCE TO CARRY BACK DATE OF INVEN

TION.

Where the date of use of an alleged anticipating device is shown beyond doubt, the burden rests on a subsequent patentee to carry his invention back to an earlier date, and for that purpose oral testimony alone is not sufficient.

[Ed. Note.-For other cases, see Patents, Cent. Dig. § 75.]

5. PATENTS54-ANTICIPATION-ABANDONED EXPERIMENT.

An alleged anticipating device which has been in continuous practical use for a number of years and is still being used without any change in the principle of its operation, although there may have been changes made in minor parts of the machine, cannot be considered an abandoned experiment.

[Ed. Note. For other cases, see Patents, Cent. Dig. § 73.]

6. PATENTS 312(3)—INFRINGEMENT EVIDENCE TO ESTABLISH.

Infringement, which is a tort, cannot be established by evidence which is speculative in its character, and this is especially true where a witness who attempts to testify as an expert does not possess the qualifications of an expert.

[Ed. Note.-For other cases, see Patents, Cent. Dig. §§ 548, 549.]

7. PATENTS 165-SCOPE-DESCRIPTION OF INVENTION.

One who seeks a patent must necessarily do so with the understanding that he is dealing with the public at large, and for that reason he is required to clearly define the scope of his invention, and he is bound by the limitations so imposed.

[Ed. Note. For other cases, see Patents, Cent. Dig. § 241.]

8. PATENTS 30(1)—INVENTION-COMMERCIAL SUCCESS AS EVIDEnce.

The extent to which a patented article has gone into use is an unsafe criterion of invention, and commercial success alone will not establish invention.

[Ed. Note.-For other cases, see Patents, Cent. Dig. § 34.]

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes *Rehearing denied February 28, 1917.

9. PATENTS 328-ANTICIPATION-PEANUT STEMMING MACHINE.

The Jones patent, No. 908,271, for a peanut stemming machine, is void for anticipation.

Cross-Appeals from the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge.

Suit in equity by the Benthall Machine Company, Incorporated, against the National Machine Corporation, Incorporated. From the decree, both parties appeal. Affirmed on complainant's appeal, and reversed on defendant's appeal.

For opinion below, see 222 Fed. 918.

George W. Ramsey, of New York City, and Melville Church, of Washington, D. C. (Menalcus Lankford, of Norfolk, Va., on the brief), for appellant and cross-appellee.

T. Hart Anderson, of New York City (Munn & Munn, of New York City, and Tazewell Taylor, of Norfolk, Va., on the brief), for appellee and cross-appellant.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

PRITCHARD, Circuit Judge. The appellee and cross-appellant will be referred to as complainant, and the appellant and cross-appellee as defendant, such being the respective positions occupied by the parties in the court below.

Suit was brought by the complainant, a corporation doing business in the city of Suffolk, Va., against the National Machine Corporation, organized under the laws of the state of Virginia, and doing business in the city of Suffolk, Va., alleging an infringement of the patent to Benthall, No. 890,401, on a peanut stemming saw, and a patent to Jones, No. 908,271, on a peanut stemmer. The court below dismissed the bill as to the Jones patent and sustained the Benthall patent on the saw and granted an injunction against the defendant. The National Machine Corporation took an appeal from the injunction, and the Benthall Machine Company filed a cross-appeal from the decree of the court below dismissing the bill as to the Jones patent. The subjectmatter of the Benthall patent is different from that of the Jones patent. Therefore each will be treated in its turn in the course of this opinion.

[1] Defendant insists that the court below erred in holding that the letters patent No. 890,401, to Jesse T. Benthall, is, in respect to claims 4 and 5, good and valid. Complainant insists that defendant has infringed its patent by the use of a saw for stemming peanuts. The saw in question is described in the Benthall patent, page 1, line 60, as follows:

"It will be noticed from inspection of Fig. 3 that the sides of the throat meet each other at an acute angle, and that the front edge of each tooth is straight, and that the widest part of the throat is approximately the width of the tooth. By this construction the stems when engaged by the throat are drawn to the bottom thereof, and the gradual narrowing of the stem exerts a wedging action on the stem, thus gripping the same sufficiently tight to draw it between the slats and to strip the nuts therefrom."

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

The claims of the Benthall patent in suit are:

"(4) In a peanut stemmer, a stemming device comprising a disk provided on its periphery with a plurality of teeth, said teeth being inclined to radii of the disks, and having their front edges straight, the edges of the adjacent teeth meeting at an acute angle, and the points of the teeth being nearer the centers of the disks than the heels thereof, and the spaces between the teeth being of a width at the widest part approximately equal to that of the teeth. "(5) In a peanut stemmer, a stemming device comprising a disk provided on its periphery with a plurality of spaced teeth having straight front edges, the heels of the teeth being farther from the centers of the disk than the points thereof, whereby to form a guard for the point, and the edges of the adjacent teeth meeting at an acute angle, whereby to exert a wedging action on the stem."

Among other things, it appears that the limitations in the specifications and claims that the sides of the adjacent teeth meet at an acute angle were introduced by the attorney after the application was filed and the claims rejected by the Patent Office. It is insisted by defendant that the patentee is bound by this limitation, and it cites in support thereof the following cases: Burns v. Meyer, 100 U. S. 672, 25 L. Ed. 738; Keystone Bridge Co. v. Phoenix Iron Co., 95 U. S. 274, 24 L. Ed. 344; American Tobacco Co. v. Streat, 83 Fed. 700, 28 C. C. A. 18; Bonsack Machine Co. v. Smith (C. C.) 70 Fed. 383; Crown Cork & Seal Co. v. Aluminum Stopper Co. (C. C.) 100 Fed. 849; Ashton Valve Co. v. Coale Muffler & Safety Valve Co., 52 Fed. 314, 3 C. C. A. 98.

It is further insisted that, when Benthall made application for a patent (January 12, 1906), “it came into a well-developed art which begins with the patent to Eli Whitney, March 4, 1794, on the saw cotton gin; saw cotton gins were in use stemming peanuts long before Benthall, and as early as April 2, 1872, a patent was granted to Edwin Scott on a peanut 'gin';" also that, when Benthall filed his application in the Patent Office, nothing was said in either the specification or claims about any "acute angle" of the teeth to wedge the peanut stem. An examination of defendant's exhibit (the certified copy of file wrapper and claims, Benthall patent, 890,401) sustains this contention. It appears that at that time great stress was laid upon the "bills (points) of the hooks (teeth) being nearer the centers of the disks than the heels thereof." (Original claims 9 and 10.)

It further appears that saws having protected points so as to prevent scraping of the hulls or seeds were public property anterior to the time Benthall applied for his patent; patents covering these points being known as the Hazelton patents, No. 293,576 and No. 313,412, having expired in 1901 and 1902, respectively. Patent No. 293,576 was the patent for a gin saw. A description of this patent is in the following language:

"Various other modifications will readily suggest themselves to those skilled in the art, as it is manifest that the form of the tooth is immaterial so long as the heel of the tooth is higher than its point, whereby the heel or base protects or guards the point of the tooth."

Upon this description Hazelton claims this device as his patent, employing the following language in respect to the same: