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10 F.(2d) 41

lector by an action in assumpsit. It was held that this action could be based on an alleged incorrect appraisal, as well as on an alleged incorrect decision of the collector as to the rate and amount. Of course, the force of this decision is limited to the particular statutes considered. The terms "payment under protest" and "notice of dissatisfaction for appeals to reappraisement" may have been used indiscriminately in cases decided under other acts; but whether dissatisfaction is with the appraisement, or whether it is with the collector's decision as to the rate and amount, the method of voicing this dissatisfaction and obtaining relief is here fixed. The collector has the power to decide as to the rate of duty or classification of the merchandise, and computes the amount of duty predicated upon the amount or value found and returned to him by the officers in whom the law places the power to determine these factors and amount.

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It is not the duty of the collector to fix or change the two factors of value or quantity. He could not predicate his original decision or liquidation on his own findings as to these factors, and it follows that he could not liquidate or reliquidate upon his own findings of the value of the currency where the statute (section 25 of the Act of August 28, 1894) provides that the "value so proclaimed shall be followed in estimating the value of all foreign merchandise exported to the United States during the quarter for which the value is proclaimed. Section 21 of the Act of June 22, 1874 (Comp. St. § 5714), is in effect a statute of limitations. The word "protest," there used, indicates a written document which is filed by an importer with the collector against his decision as to the rate and amount of duty for the classification of the merchandise. In the revision of the statute (Rev. Stat. § 3011) Congress used the noun "protest" (act of 1874) and again the term "protest" was used in the revision of February 27, 1877 (19 Stat. 247), which amended Rev. Stat. § 3011.

In Saltonstall v. Birtwell, 164 U. S. 54, 17 S. Ct. 19, 41 L. Ed. 348, the court considered the Act of March 3, 1883, 22 Stat. 488, in an action by an importer to recover duties paid under protest filed within 10 days after the ascertainment and liquidation of duties, and there referred to the testimony of the protest clerk and her duties, which it was said were "to receive and care for protests filed by importers against the rate of duty exacted by the collector of said

port upon their importations of merchandise." Reappraisement statutes require a notice in writing to be filed with the collector as an appeal to the reappraisement, whereas protests under the protest statutes require, not only that the protest be in writing, but in addition "setting forth therein distinctly and specifically, and in respect to each entry or payment, the reasons for his objections thereto." See paragraph N, § 3, Act of 1913 (Comp. St. § 5595); section 14, Act June 30, 1864 (13 Stat. 214); Rev. Stat. § 2931; Customs Administration Act of June 10, 1890, 26 Stat. 136; Tariff Acts of July 24, 1897, 30 Stat. 151, and August 5, 1909, 36 Stat. 11. Wherever Congress used the word "protest" in connection with the customs statutes, it seems to have considered the decision of the collector. [2, 3] The cases to which our attention is called by the government considered protests challenging the legality of appraisements after the appraisements had been concluded, for the reason that the appraisers had erroneously included export taxes as an item of value, or erroneously determined the time and place to find value, or erroneously made a second appraisement, or that the collector erroneously assessed penalties because of an advance in values on appraisement. Bartlett v. Kane, 57 U. S. (16 How.) 263, 14 L. Ed. 931; Belcher v. Linn, 65 U. S. (24 How.) 508, 16 L. Ed. 754; Fielden v. Lawrence, Fed. Cas. No. 4,774, 3 Blatch. 120; Goddard v. Maxwell, Fed. Cas. No. 5,492, 3 Blatch. 131. These cases do not hold, as contended for, that the term "protest" was used in connection with an appeal to reappraisement. Under the Tariff Act of 1913, the importer may challenge the legality of an appraisal, or that the appraisal proceeded upon a wrong principle, contrary to law, by filing a protest with the collector at the time the collector assessed the amount of the duties placed upon such illegal appraisement. See Oberteuffer v. Robertson, 116 U. S. 499, 6 S. Ct. 462, 29 L. Ed. 706; Robertson v. Frank Bros. Co., 132 U. S. 17, 10 S. Ct. 5, 33 L. Ed. 236; Hermann et al. v. United States (C. C.) 84 F. 151. There was no protest filed within the meaning of this statute. The duties upon the imported goods were liquidated and paid, and the goods delivered to the importer, all more than one year before these actions. This settlement of duties was final after the expiration of one year, and in the absence of protest by the importer is final and conclusive upon all. Judgment affirmed.

for defendants, and the United States brings have been delivered to the owner, importer, error. Affirmed.

Emory R. Buckner, U. S. Atty., of New York City (Mary R. Towle, Asst. U. S. Atty, of New York City, of counsel), for the United States.

agent or consignee, such entry and passage free of duty and such settlement of duties the time of entry, in the absence of fraud and shall, after the expiration of one year from in the absence of protest by the owner, importer, agent, or consignee, be final and conclusive upon all parties." Comp. St. § 5714. The defendants in error argue that "proBefore ROGERS, HOUGH, and MAN- test," as used in the statute, refers to a docTON, Circuit Judges.

Frederick W. Brooks, Jr., of New York City, for defendants in error.

MANTON, Circuit Judge. These actions were tried together, argued here as one, and will be considered in one opinion. In each case, the government seeks to recover for additional duties on merchandise imported by each defendant under the Tariff Act of October 3, 1913, 38 Stat. 114, and under section 25 of the Tariff Act of 1894, 28 Stat. 552 (Comp. St. § 6536), which were effective when the importations were made. The cases were tried upon a stipulation as to the facts.

The merchandise was entered, estimated duties were paid, and it was delivered to the defendants in error in November and December, 1919, and January, 1920. The balance of duties were liquidated and paid in May, July, and August, 1920, and MarchApril, 1921. There is no claim of fraud in the importations and entry of the merchandise. Appeals to reappraisement were filed and decided March 23, 1921. A reliquidation was had September 28, 1921, and additional duties were assessed by the collector under instructions from the Secretary of the Treasury under the provisions of section 25 of the Act of August 27, 1894 (28 Stat. 552). No protests were filed in accordance with section 3, subd. N, of the Tariff Act of 1913 (Comp. St. § 5595). [1] In answer to this suit for collection of the items found due under the reliquidations, the defendants in error say the reliquidations were illegal and void, in so much as they respectively took place more than one year after the respective dates of entry of the merchandise. The argument proceeds upon the basis that the Act of June 22, 1874, 18 Stat. 186, was effective at the time of the importations and is a limitation of the right to reliquidate. The act provides (section 21):

"That whenever any goods, wares, and merchandise shall have been entered and passed free of duty, and whenever duties upon any imported goods, wares, and merchandise shall have been liquidated and paid, and such goods, wares, and merchandise shall

ument filed with the collector after his liquidation as to the rate and amount of duties, and sets forth the importer's objections to such decision. Because no such protest was made, the contention is that the limitation of one year applied to the reliquidations made and that therefore they were outlawed. The government argues that the term "protest," as used in the Act of June 22, 1874, should reasonably be construed in a more general sense, and should include a notice of dissatisfaction with an appraisement leading to an appeal therefrom. The argument proceeds that the appeal to reappraisement, which was filed on March 23, 1921, is a protest within the meaning of this statute.

Ever since the enactment and to the present time, an importer, in connection with his importations, could ask for reappraisement of his merchandise, if dissatisfied with the valuations and assessments thereon. He could appeal from the appraisement. If dissatisfied with the decision of the collector as to the rate and amount, he could file a protest to that decision. The two are quite distinct. In other words, the decision of the appraisers as to the value of merchandise is the subject of an appeal to reappraisement, and the decision of the collector as to the rate and the amount of duties chargeable is the subject of protest. Learned counsel for the government argues, referring to earlier decisions, that the word "protest," used in the act in question, includes a notice of dissatisfaction of the appraisement and an appeal to reappraisement, and from this it is said that the time within which liquidation could take place was extended in the case at bar by the pendency of the appeals to reappraisement. If this be true, the reliquidations were not affected by the one-year limitation in question.

In Davies v. Miller, 130 U. S. 284, 9 S. Ct. 560, 32 L. Ed. 932, the Supreme Court, in 1889, considering the Tariff Act of 1864 (13 Stat. 214) reviewed the importers' various rights of appeals up to 1864. There it is said that an importer who paid unauthorized duties might recover them from the col

10 F.(2d) 44

controlled device operative on said connection to contract the same, against the tension of said spring, and thereby actuate said throttle valve independently of said handcontrolled rod." In claim 3, a "foot-controlled device, operative on the primary section of said rod." In construction under this Judd patent in place of the rigid rod connection between the crank arms there is employed a longitudinally extensible and contractable rod, comprising a primary section and a secondary section; the former being telescoped into the latter. The outer end of the rod section is pivotally secured to the free end of the crank arm by a hooklike extension screwed into the rod section. Rigidly secured to the rod section is a laterally project ing lug, which slidably works in a longitudinally extended slot formed in the rod section, and affords a stop to limit the longitudinal separation of the rod sections. A coiled spring is telescoped onto the rod section, compressed between a collar thereon and the inner end of the rod section, and yieldingly holds said sections in their extended positions. The rod sections complete the connection between the hand piece and throttle valve. While contracted by the foot mechanism, this extendable or contractable connecting rod exists as a continuing operative and effective connection between the two crank arms and the throttle, and is the crux of the whole situation in the Judd patent, because the necessary result thereof is to cause the foot control to operate upon a changed length of the rod without disturbing it as such operative connection between the two cranks, thereby bringing about the independence of the action between the hand and foot controls, which enables either to operate without impairing the control which the other has over the throttle. And this is the identifying novelty of the invention.

The Williams patent is the same operative principle as the Judd patent; that is, it has a similar organization of elements, but there is a different structural detail. The means through which the Williams structure embodied the Judd principle of rendering the pedal operative upon the two-part connecting rod enables it to perform an operation on the rod and change its length, while leaving the rod a continuing operative element of control between the hand-adjusted crank and the carbureter crank, which consists of a device known prior to the invention, although never before used in this manner, as the Bowden wire. In its operative principle, a tube is produced by coiling a wire after

a

the manner of a tightly wound spring; such
a tube is freely flexible and may be divert-
ed into any path, but it will always re-
main noncompressible lengthwise, so that, if
another wire is introduced into the flexi-
ble tube, it may be pulled in the tube, even
though partaking of the path of the tube,
without the wire straightening out or se-
curing the shortest distance between the two
points, and therefore be serviceable as
Williams
means for transmitting motion.
used the Bowden wire between the operative
upper end of the pedal and the sliding pri-
mary member of the connecting rod, with its
remote end in floating support upon the con-
necting rod in the same sense that it rides
with the connecting rod on the flexible tube,
and is anchored to the rod member, and the
wire passes on to the sliding rod member, in
order to move the latter relatively to the part
performing upon the connecting rod the op-
eration of shortening the connecting rod
without disturbing the continuity of the hand
lever control.

The appellant's commercial structure uses this flexible wire tube. The coiled spring interposed between the two collars, as in the Judd patent, performs the function of holding the extendable and contracting.connecting rod in its normally connecting position. When the throttle is depressed, the yielding of the spring permits the throttle to open independently of the rigid connecting rod, which latter is movable only as a hand mechanism. Thus the hand-actuated mechanism and the foot-actuated mechanism may open and close the throttle valve independent of each other.

[1] Of the patents referred to as prior art, Hess, No. 1,174,981, granted August 26, 1923, Bowmann, No. 1,132,907, granted July 28, 1923, and Gibson & Staples, No. 1,131,831, granted March 16, 1915, were copending applications in the Patent Office with the Judd patent. They cannot aid in the defense of prior inventions as distinguished from anticipation. This court said in Davis, etc., v. Alexander Milburn Co., 1 F. (2d) 227:

"Priority of invention does not mean the same thing as anticipation in invention. The logical reason for sustaining priority of invention is to prevent double patenting, and double patenting is forbidden, not because that phrase can be found in any statute, but because two monopolies of the same entity are inherently repugnant to the essential nature of the patent system.

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The patents of earlier applications must

44

21-d Ed. 1318, 47 kup. 67.577.

10 FEDERAL REPORTER, 2d SERIES

WILLIAMS BROS. AIRCRAFT CORPORA-
TION v. GOULD-MERSEREAU CO. *
Circuit Court of Appeals. Second Circuit.
December 7, 1925.)

certented Circuit C

770us 638 78£ Ed. 77446 Jeep!

350.

No. 133.

I. Patents 90(1)-Patents of earlier appll
cation, but making no conflicting claims, do
not aid defense of prior invention.

Defense of prior invention, as distinguished
from anticipation, cannot be aided by patents
of earlier copending applications, making no
claim directed to the subject-matter, conflicting
with or included in the scope of the claims of
the patent in suit.

2. Patents 328-No. 1,284,523, for acceler

ator attachment, held not anticipated, to in-
volve invention, and infringed as to claims

I and 2.

Williams patent, No. 1,284,523, for an accelerator attachment for automobile throttle valve controller, held not anticipated, to involve

invention, and infringed as to claims 1 and 2.

3. Patents 49-Infringement lends force to
claim of utility against infringer.

Infringement of patent lends great force
to claim of utility, at least against infringer.
4. Patents 328—No. 1,139,685, claim 3, for
automobile throttle valve controller, held not
anticipated, valid, and infringed.

Judd patent, No. 1,139,685, claim 3, for a
mechanism for controlling throttle valves of
automobiles by hand or foot, held not antici-
pated, valid, and infringed.

attachment. The defense of want of validity, principally because of the state of the prior art, is interposed. Infringement is denied.

The object of the invention is to provide a mechanism for controlling the throttle valves of motor-driven vehicles, which may be controlled either by hand or foot power. The advantages urged are cheapness, simplicity, and durability of construction, and it is clearly demonstrated that the contrivance made under the patent may be installed in a Ford car merely by removing the standard connecting rod and substituting this one. All that is required is to find a suitable place for the pedal and make the necessary installation. It does not require a high degree of mechanical skill to do this. In addition, there is an advantage in the factor of safety which inexperienced drivers may have in time of trouble, due to the mutually independent operation of both the hand and foot mechanism. A considerable business has been built up by the appellant in manufacturing under the patent in suit. It is extensively used on Ford cars.

The invariable practice of the prior art was to transmit motion from the pedal connecting rod through an instrumentality which holds the throttle rigid and immovable so long as the pedal is depressed, as through the medium of an arm or a thrust

Appeal from the District Court of the rod extending rigidly from the foot lever, or

United States for the Eastern District of
New York.

Suit by the Williams Bros. Aircraft Cor-
poration against the Gould-Mersereau Com-
pany for infringement of patent. Decree for
defendant, and plaintiff appeals. Reversed.

a jointed connection involving a lever fulcrumed at a fixed point upon the engine, and to provide a lost motion connection in the connecting rod. This rendered the manual control inoperative whenever the pedal control is in use. The principle of the invention in suit was making the connecting rod out of the primary and secondary member slide upon one another. A transmitting connection from the pedal to the connecting rod is carried at one end. It is so yielding in the

Hervey S. Knight, of Chicago, Ill. (Walter Christie, of San Francisco, Cal., and D. Anthony Usina, of New York City, of counsel), for appellant. William S. Pritchard, of New York City, direction of the connecting rod movement for appellee.

Before ROGERS, MANTON,
HAND, Circuit Judges.

that motion may be imparted to the connectand ing rod bodily or as a whole by the manual

MANTON, Circuit Judge. The appellant sues for infringement of claims 2 and 3 of patent to Judd, No. 1,139,685, for a controlling mechanism for throttle valves, which was granted May 18, 1915, on an application filed September 8, 1914; also for infringement of claims 1, 2, 3, and 4 of patent to Lloyd M. Williams, Percy J. Williams, and Chester L. Williams, No. 1,284,523, granted November 12, 1918, on application filed November 4, 1916, for an accelerator *Certiorari granted 46 S. Ct. 350, 70 L. Ed.

control, even while the pedal is depressed. The pedal power is not transmitted by rigid connecting parts, but by the pedal's operation on the connecting rod or part of the connecting rod. The connecting rod is at all times operative and continuously a functioning element of control between the hand lever and the throttle. It is responsive to the pedal, because the pedal changes the length of the rod through which the hand lever is holding the throttle, while the hand lever is still dependent upon a holding means.

In claim 2 it is broadly stated: "A foot

10 F.(2d) 44

controlled device operative on said connection to contract the same, against the tension of said spring, and thereby actuate said throttle valve independently of said handcontrolled rod." In claim 3, a "foot-controlled device, operative on the primary section of said rod." In construction under this Judd patent in place of the rigid rod connection between the crank arms there is employed a longitudinally extensible and contractable rod, comprising a primary section and a secondary section; the former being telescoped into the latter. The outer end of the rod section is pivotally secured to the free end of the crank arm by a hooklike extension screwed into the rod section. Rigidly secured to the rod section is a laterally project ing lug, which slidably works in a longitudinally extended slot formed in the rod section, and affords a stop to limit the longitudinal separation of the rod sections. A coiled spring is telescoped onto the rod section, compressed between a collar thereon and the inner end of the rod section, and yieldingly holds said sections in their extended positions. The rod sections complete the connection between the hand piece and throttle valve. While contracted by the foot mechanism, this extendable or contractable connecting rod exists as a continuing operative and effective connection between the two crank arms and the throttle, and is the crux of the whole situation in the Judd patent, because the necessary result thereof is to cause the foot control to operate upon a changed length of the rod without disturbing it as such operative connection between the two cranks, thereby bringing about the independence of the action between the hand and foot controls, which enables either to operate without impairing the control which the other has over the throttle. And this is the identifying novelty of the invention.

The Williams patent is the same operative principle as the Judd patent; that is, it has a similar organization of elements, but there is a different structural detail. The means through which the Williams structure embodied the Judd principle of rendering the pedal operative upon the two-part connecting rod enables it to perform an operation on the rod and change its length, while leaving the rod a continuing operative element of control between the hand-adjusted crank and the carbureter crank, which consists of a device known prior to the invention, although never before used in this manner, as the Bowden wire. In its operative principle, a tube is produced by coiling a wire after

the manner of a tightly wound spring; such a tube is freely flexible and may be diverted into any path, but it will always remain noncompressible lengthwise, so that, if another wire is introduced into the flexible tube, it may be pulled in the tube, even though partaking of the path of the tube, without the wire straightening out or securing the shortest distance between the two points, and therefore be serviceable as a means for transmitting motion. Williams used the Bowden wire between the operative upper end of the pedal and the sliding primary member of the connecting rod, with its remote end in floating support upon the connecting rod in the same sense that it rides with the connecting rod on the flexible tube, and is anchored to the rod member, and the wire passes on to the sliding rod member, in order to move the latter relatively to the part performing upon the connecting rod the operation of shortening the connecting rod without disturbing the continuity of the hand lever control.

The appellant's commercial structure uses this flexible wire tube. The coiled spring interposed between the two collars, as in the Judd patent, performs the function of holding the extendable and contracting. connecting rod in its normally connecting position. When the throttle is depressed, the yielding of the spring permits the throttle to open independently of the rigid connecting rod, which latter is movable only as a hand mechanism. Thus the hand-actuated mechanism and the foot-actuated mechanism may open and close the throttle valve independent of each other.

[1] Of the patents referred to as prior art, Hess, No. 1,174,981, granted August 26, 1923, Bowmann, No. 1,132,907, granted July 28, 1923, and Gibson & Staples, No. 1,131,831, granted March 16, 1915, were copending applications in the Patent Office with the Judd patent. They cannot aid in the defense of prior inventions as distinguished from anticipation. This court said in Davis, etc., v. Alexander Milburn Co., 1 F. (2d) 227:

"Priority of invention does not mean the same thing as anticipation in invention. The logical reason for sustaining priority of invention is to prevent double patenting, and double patenting is forbidden, not because that phrase can be found in any statute, but because two monopolies of the same entity are inherently repugnant to the essential nature of the patent system.

The patents of earlier applications must

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