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inventor and as described in the patent, it does not infringe the Beckwith dog. But the defendants, or some of them, have added to the Gowen dog a lower upward-moving hook, which is of the form of that in the Beckwith dog, and is placed substantially in the same position as that of the upward-working hook in the Beckwith device. The added hook in the Gowen dog is connected with the lever by an arrangement of movable bars or joints, that are very clearly the equivalent of those employed in the Beckwith dog; so that by one stroke of the lever this hook, with the upward movement and the series of teeth having a downward movement, are thrown out or drawn in. While, therefore, the Gowen dog, as constructed by the inventor and as described in the patent, does not infringe the Beckwith, I am of the opinion that the addition of the lower upward-moving hook constitutes infringement, and that the defendants, or such of them as use that hook on the Gowen dog, should be restrained from so doing.
There was put in evidence what is known as tlie Dann dog, which is described in letters patent No. 134,653, issued January 7, 1873, and in two reissues, one granted September 29, 1874, numbered 6,071, and the other granted November 9, 1875, numbered 6,733. Testimony has been taken on the question of priority of invention as between Beckwith and Dann. I think it is shown by testimony that is competent, within the decision of the supreme court in the case of Phila. & Trenton R. Co. v. Stimpson, 14 Pet. 448, that, as the inventor of a saw-mill dog, Beckwith was in advance of Dann. Upon the testimony of Morse I think the date of Beckwith's invention must be fixed as early as 1869, while Dann's invention must, in the light of the evidence, be held to have been perfected in 1870. Counsel for complainant admits in his brief that these suits were brought to restrain the use of the Gowen dog, and hence that no proof was made of any other infringing dog in opening complainant's case. But as the proofs on the part of the defendants developed the fact that some of the defendants were using the Dann dog, and as the complainant claims that the Dann dog infringes the Beckwith, counsel asked on the argument that, should the court find such infringement, a decree might be entered accordingly. As the record stands, I am not sure that it is essential or proper for the court now to determine whether the dog constructed by Dann infringes the Beck with patent. I have given the question of infringement some consideration, and am inclined to the opinion that the mechanical construction of the two devices is so different that the Dann dog should not be regarded as an infringement. My mind tends strongly to that conclusion for reasons stated in the opinion heretofore rendered in Neacy v. Allis, ante,'874, in which case it was sought by the assignee of the Dann patent to hold the complainant, Allis, as assignee of the Beckwith patent and manufacturer of the Beckwith dog, liable as an infringer. But this question, whether the Dann dog infringes the Beckwith, was not argued in the cases at bar as fully as its importance would seem to demand; and if it is deemed a question to be necessarily determined here, I shall reserve it for further argument and consideration, and in that case, as the question may be deemed a close one, and is in my judgment of great importance, I shall direct that it be argued before the full bench,
WAITTLESEY and others v. Ames and others, and two other cases.
(Circuit Court, N. D. Illinois. January, 1880.)
1. PATENTS FOR INVENTIONS-EXPERIMENTAL DEVICES.
Evidence of similar devices, merely experimental, will not defeat a patent,
though prior in point of time. 2. SAME_NOT TO DEFEAT SUBSEQUENT PATENTS.
Although prior unsuccessful experiments in part suggested the construction
which the patentee adopted and perfected, this fact will not defeat the patent. 3. COMBINATIONS IN REISSUES—USE OF A PART.
Although the owner of a patent had the right to claim a combination in his reissue, the claim cannot be extended to the sole right to the use of a part of
the combination. 4. SAME-PROTECTION OF_SUBSTITUTION OF PARTS.
The court will go protect a patented combination as not to allow it to be defeated by a mere substitution of parts performing the same functions.
BLODGETT, D. J. These are bills in equity for damages and injunction for alleged infringement by the defendants in each case of reissued letters patent No. 7,704, dated May 29, 1877, for an im. provement in bedstead frames, the original patent having been issued November 30, 1869.
The original specifications describe the invention in the following terms:
“ This invention relates to a new frame for single and double bedstead, which are provided with elastic or flexible sheets for the support of the bed
ding, or with other suitable bed bottom. The invention consists in the use of slotted or double-inclined end-pieces, in which the ends of the fabric are clamped, and in the employment of longitudinal adjustable standards, in which the said end-pieces are secured. By this arrangement the fabric is securely held, and can be stretched or slackened at will."
The claims in this patent were:
“(1) The inclined double end-bars, c, of a bedstead frame, arranged substan. tially as and for the purpose herein claimed and described.
"(2) The standard, B, arranged longitudinally adjustable on the side-bars of a bedstead frame, to permit the inclined side-bars (end-bars) to be set at a suitable distance apart, as set forth.”
In the reissue the owner of the patent, the Woven-wire Mattress Company, was allowed to restate the nature and scope of the invention in the following terms:
“My invention relates to a new frame, which is provided with an elastic or flexible sheet or fabric for the support of the bodding. The frame is made of proper size to be inserted within any ordinary bedstead. My invention consists in the combination of the side-bars and end-bars, with the end-bars elevated above the side-bars in such manner that the elastic fabric, stretched from end-bar to end-bar, can extend the entire width of the frame over the side-bars, and an elastic fabric attached to the end-bars only of the frame; and it also consists in the combination of the side-bars and end-bars of the frame, connected together by standards or corner-irons, B. By this arrangement the fabric is securely held.
It will be observed that the purpose of this method of attaching the fabric to the frame is to give to the fabric its greatest elasticity by attaching it at its ends only, and at the same time making it as nearly the full size of the frame as could be well done, while it is substantially free from contact with the frame when used, excepting at its ends, where it is rigidly secured to the end-bars."
The description of the parts and the drawings is the same in the reissue as in the original patent.
Two new claims are allowed in the reissue, as follows:
"(1) The combination of the side-bars and end-bars and elastic-coiled wire fabric, D, attached only to the end-bars, with the end-bars of the frame ele vated above the side-bars, so that the fabric will be suspended above the sidebars from end to end of the frame.
“(2) The combination, in a removable bed bottom or bedstead frame, of the side-bars, A, standards or corner-pieces, B, end-bars, C, and elastic fabric, D, combined and arranged substantially as and for the purposes specified."
The third and fourth claims are the same in the reissue as in the original patent.
The defendants in these cases are charged with an infringement of the first and second claims under the reissue. No dispute is made as to the complainants' title.
The defenses set up are
(1) That Farnham was not the original and first inventor of the device covered by the original patent and reissue; (2) that the two new claims allowed in the reissue are not sustainable under the specification and drawings of the original patent, and hence the reissue is void as to those claims; (3) that the defendants do not infringe the Farnham patent, either original or reissue.
It will be noticed that the original Farnham patent only covered the peculiar "inclined double end-bars," as they were arranged and shown in the mechanism described, and the standards, B,—that is, the frame of a bed bottom or bedstead with end-bars made double and inclined, as there shown, and performing the functions shown, and the standard, B, longitudinally adjustable on the side-bars, as and for the purpose shown; and the peculiar characteristic of the frame constructed under the original specifications was that the fabric which was to be used therewith was to be fastened only to the ends of the frame. This peculiarity is not stated in words, but it is manifested from the organization of the mechanism and the relation which the parts bear to each other. No language describing this feature of the mechanism is necessary. It is obvious from inspection alone that the intention of the inventor was to make a bed bottom in which the fabric should be attached only to the ends of the frame, so that the strain upon the fabric by the weight of the occupant or occupants of the bed would be lengthwise of the bed, and not crosswise.
By the reissue a claim is asserted to the combination of these parts and the elastic coiled-wire fabric-that is, the inclined double endbars and the adjustable standard for holding those end-bars above the side-bars, and the elastic coiled-wire fabric, D, so arranged that the fabric will be suspended above the side-bars from end to end of the frame; while it is insisted on the part of the defendants that the claim is invalid—First, because no such combination is shown in the original specification and drawing of the Farnham patent; second, for want of novelty in the original device.
As I have already said, it is obvious that Farnham intended that the "elastic or flexible sheet" for the support of the bedding "should be attached only to the ends of the frame.” He does not state of what material the “elastic or flexible sheets” were to be made. He does not use the words “elastic coiled-wire fabric” in any part of liis specification, nor any terms which would show that he meant that kind of fabric to be used. Any "elastic or flexible" fabric is allowed by the language of the specification; but in the drawing the fabric, D, is shown to be made of coiled wire. It is objected that the draw
ing shows only a coil, and not an interlocked connected series of coils. But it must be remarked that figure 1 in the drawing is a side view only, while the description in the specification called it a “fabric.” Clearly a single coil, or any number of coils not interlaced with each other, would not be a fabric. I think there is enough in the drawing and specification, when taken together, to show that the inventor meant to describe by the word "fabric, D," a fabric made of coiled wire, and he had the right to claim a patent on the combination of these parts if the combination was new.
This brings us to the most seriously contested portions of this case under the proof.
It is conceded that, so far as the inventor is concerned, the woven. wire fabric was old. He did not invent it, and does not claim to have done so. But it is insisted on the part of the complainants that by bringing it into combination with this peculiar frame Farnham was the first to utilize it for domestic purposes as a bed bottom, and make of it a bed bottom acceptable to the public, and which has gone into general use. It appears from the proof that some time prior to January 1, 1969, the Woven-wire Mattress Company, of Hartford, Connecticut, had attempted the manufacture of bed bottoms by the use of a fabric made by weaving or interlocking coiled wires.
They at first made the frames upon which the fabric vas stretched of iron, and the mechanism or organization consisted of the iron frame, to which the fabric was in some manner fastened at the ends and sides, so as to make a wire mattress upon which the bedding should rest. This device was unsuccessful. The mattresses so made were not acceptable, and there was no sale or demand for them. About the first of January, 1869, the company employed Mr. Charles E. Billings, of Hartford, to make experiments in getting up a more satisfactory device for utilizing the woven-wire fabric as a bed bottom. During the time he was so employed Mr. Billings was to some extent assisted by Mr. Henry E. Bissell, who was at that time secretary of the company. Mr. Billings was engaged by the company four or five weeks,-say until about February 6th,—and within that time he made four wooden bed-bottom frames, into which the woven.wire fabric was fastened. The general plan of all these Billings frames was that of a box of the width and length required for a bed bottom, into which the woven-wire fabric was fixed in the frame by various devices adopted for attaching it to the end-board. Some of them may have been attached to the sides; but I think the balance of proof shows that two, at least, of these frames had end-boards or end