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

agent or consignee, such entry and passage Emory R. Buckner, U. S. Atty., of New free of duty and such settlement of duties York City (Mary R. Towle

, Asst. U. S. Atty, the time of entry, in the absence of fraud and

shall, after the expiration of one year from of New York City, of counsel), for the in the absence of protest by the owner, imUnited States.

Frederick W. Brooks, Jr., of New York porter, agen or consignee, be final and conCity, for defendants in error.

clusive 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.

ument filed with the collector after his liq

uidation as to the rate and amount of duMANTON, Circuit Judge. These actions ties, and sets forth the importer's objecwere tried together, argued here as one, and ţions to such decision. Because no such prowill be considered in one opinion. In each test was made, the contention is that the case, the government seeks to recover for limitation of one year applied to the reliqadditional duties on merchandise imported uidations made and that therefore they were by each defendant under the Tariff Act of outlawed. The government argues that the October 3, 1913, 38 Stat. 114, and under term “protest," as used in the Act of June section 25 of the Tariff Act of 1894, 28 22, 1874, should reasonably be construed in Stat. 552 (Comp. St. § 6536), which were a more general sense, and should include a effective when the importations were made. notice of dissatisfaction with an appraiseThe cases were tried upon a stipulation as to ment leading to an appeal therefrom. The the facts.

argument proceeds that the appeal to reThe merchandise was entered, estimated appraisement, which was filed on March 23, duties were paid, and it was delivered to 1921, is a protest within the meaning of the defendants in error in November and this statute. December, 1919, and January, 1920. The Ever since the enactment and to the presbalance of duties were liquidated and paid ent time, an importer, in connection with his in May, July, and August, 1920, and March- importations, could ask for reappraisement April, 1921. There is no claim of fraud in of his merchandise, if dissatisfied with the the importations and entry of the merchan- valuations and assessments thereon. He dise. Appeals to reappraisement were filed could appeal from the appraisement. If disand decided March 23, 1921. A reliquida- satisfied with the decision of the collector tion was had September 28, 1921, and addi- as to the rate and amount, he could file a tional duties were assessed by the collector protest to that decision. The two are quite under instructions from the Secretary of distinct. In other words, the decision of the the Treasury under the provisions of sec- appraisers as to the value of merchandise is tion 25 of the Act of August 27, 1894 (28 the subject of an appeal to reappraisement, Stat. 552). No protests were filed in ac- and the decision of the collector as to the cordance with section 3, subd. N, of the Tar rate and the amount of duties chargeable is iff Act of 1913 (Comp. St. § 5595). the subject of protest. Learned counsel for [1] In answer to this suit for collection of the government argues, referring to earlier the items found due under the reliquidations, decisions, that the word "protest,” used in the defendants in error say the reliquidations the act in question, includes a notice of diswere illegal and void, in so much as they satisfaction of the appraisement and an aprespectively took place more than one year peal to reappraisement, and from this it is after the respective dates of entry of the said that the time within which liquidation merchandise. The argument proceeds up- could take place was extended in the case on the basis that the Act of June 22, 1874, at bar by the pendency of the appeals to 18 Stat. 186, was effective at the time of the reappraisement. If this be true, the reliqimportations and is a limitation of the right uidations were not affected by the one-year to reliquidate. The act provides (section limitation in question. 21):

In Davies v. Miller, 130 U. S. 284, 9 "That whenever any goods, wares, and S. Ct. 560, 32 L. Ed. 932, the Supreme Court, merchandise shall have been entered and in 1889, considering the Tariff Act of 1864 passed free of duty, and whenever duties up- (13 Stat. 214) reviewed the importers' varion any imported goods, wares, and merchan- ous rights of appeals up to 1864. There it dise shall have been liquidated and paid, is said that an importer who paid unauthorand such goods, wares, and merchandise shall ized duties might recover them from the col

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10 F.(20) 41 lector by an action in assumpsit. It was port upon their importations of merchanheld that this action could be based on an dise." Reappraisement statutes require a alleged incorrect appraisal, as well as on an notice in writing to be filed with the collector alleged incorrect decision of the collector as as an appeal to the reappraisement, whereas to the rate and amount. Of course, the force protests under the protest statutes require, of this decision is limited to the particular not only that the protest be in writing, but statutes considered. The terms “payment in addition "setting forth therein distinctly under protest” and “notice of dissatisfaction and specifically, and in respect to each entry for appeals to reappraisement" may have or payment, the reasons for his objections been used indiscriminately in cases decided thereto." See paragraph N, § 3, Act of under other acts; but whether dissatisfac- 1913 (Comp. St. § 5595); section 14, Act tion is with the appraisement, or whether June 30, 1864 (13 Stat. 214); Rev. Stat. it is with the collector's decision as to the $2931; Customs Administration Act of rate and amount, the method of voicing this June 10, 1890, 26 Stat. 136; Tariff Acts of dissatisfaction and obtaining relief is here July 24, 1897, 30 Stat. 151, and August 5, fixed. The collector has the power to decide 1909, 36 Stat. 11. Wherever Congress used as to the rate of duty or classification of the word "protest” in connection with the the merchandise, and computes the amount of customs statutes, it seems to have considduty predicated upon the amount or value ered the decision of the collector. found and returned to him by the officers [2,3] The cases to which our attention is in whom the law places the power to deter- called by the government considered protests mine these factors and amount.

challenging the legality of appraisements It is not the duty of the collector to fix after the appraisements had been concluded, or change the two factors of value or quan- for the reason that the appraisers had erronetity. He could not predicate his original de- ously included export taxes as an item of valcision or liquidation on his own findings as ue, or erroneously determined the time and to these factors, and it follows that he could place to find value, or erroneously made a secnot liquidate or reliquidate upon his own ond appraisement, or that the collector erfindings of the value of the currency where roneously assessed penalties because of an adthe statute (section 25 of the Act of Au- vance in values on appraisement. Bartlett gust 28, 1894) provides that the “value so v. Kane, 57 U. S. (16 How.) 263, 14 L. Ed. proclaimed shall be followed in estimating 931; Belcher v. Linn, 65 U. S. (24 How.) the value of all foreigri merchandise export- 508, 16 L. Ed. 754; Fielden v. Lawrence, ed to the United States during the quarter Fed. Cas. No. 4,774, 3 Blatch. 120; Godfor which the value is proclaimed. * dard v. Maxwell, Fed. Cas. No. 5,492, 3 Section 21 of the Act of June 22, 1874 Blatch. 131. These cases do not hold, as (Comp. St. § 5714), is in effect a statute of contended for, that the term “protest” was limitations. The word “protest," there used, used in connection with an appeal to reapindicates a written document which is filed praisement. Under the Tariff Act of 1913, by an importer with the collector against his the importer may challenge the legality of decision as to the rate and amount of duty an appraisal, or that the appraisal proceeded for the classification of the merchandise. In upon a wrong principle, contrary to law, by the revision of the statute (Rev. Stat. § 3011) filing a protest with the collector at the time Congress used the noun “protest” (act of the collector assessed the amount of the du1874) and again the term “protest” was used ties placed upon such illegal appraisement. in the revision of February 27, 1877 (19 See Oberteuffer v. Robertson, 116 U. S. 499, Stat. 247), which amended Rev. Stat. § 6 S. Ct. 462, 29 L. Ed. 706; Robertson v. 3011.

Frank Bros. Co., 132 U. S. 17, 10 S. Ct. In Saltonstall v. Birtwell, 164 U. S. 54, 5, 33 L. Ed. 236; Hermann et al. v. United 17 S. Ct. 19, 41 L. Ed. 348, the court con- States (C. C.) 84 F. 151. There was no sidered the Act of March 3, 1883, 22 Stat. protest filed within the meaning of this stat488, in an action by an importer to recover ute. The duties upon the imported goods duties paid under protest filed within 10 days were liquidated and paid, and the goods deafter the ascertainment and liquidation of livered to the importer, all more than one duties, and there referred to the testimony year before these actions. This settlement of of the protest clerk and her duties, which duties was final after the expiration of one it was said were “to receive and care for year, and in the absence of protest by the protests filed by importers against the rate importer is final and conclusive upon all. of duty exacted by the collector of said Judgment affirmed.

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WILLIAMS BROS. AIRCRAFT CORPORA. attachment. The defense of want of validity,
TION V. GOULD-MERSEREAU CO.

principally because of the state of the prior

art, is interposed. Infringement is denied. December 7, 1925.)

The object of the invention is to provide No. 133.

& mechanism for controlling the throttle

valves of motor-driven vehicles, which may 1. Patents Em90(1)—Patents of earlier appll. be controlled either by hand or foot power. cation, but making no conflicting claims, do not aid defense of prior invention.

The advantages urged are cheapness, simDefense of prior invention, as distinguished plicity, and durability of construction, and from anticipation, cannot be aided by patents it is clearly demonstrated that the contrivof earlier copending applications, making no

ance made under the patent may be installed claim directed to the subject-matter, conflicting with or included in the scope of the claims of in a Ford car merely by removing the standthe patent in suit.

ard connecting rod and substituting this

one. All that is required is to find a suitable 2. Patents Om 328-No. 1,284,523, for accelerator attachment, held not anticipated, to in place for the pedal and make the necessary volve invention, and infringed as to claims installation. It does not require a high de1 and 2.

gree of mechanical skill to do this. In addiWilliams patent, No. 1,284,523, for an ac- tion, there is an advantage in the factor of celerator attachment for automobile throttle safety which inexperienced drivers may have valve controller, held not anticipated, to involve invention, and infringed as to claims 1 and 2. in time of trouble, due to the mutually inde

pendent operation of both the hand and foot 3. Patents 49-Infringement lends force to mechanism. A considerable business has claim of utility against infringer.

been built up by the appellant in manufacInfringement of patent lends great force turing under the patent in suit. It is exto claim of utility, at least against infringer.

tensively used on Ford cars. 4. Patents 328–No. 1,139,685, claim 3, for

The invariable practice of the prior art automobile throttle valve controller, held not anticipated, valid, and infringed.

was to transmit motion from the pedal conJudd patent, No. 1,139,685, claim 3, for a necting rod through an instrumentality mechanism for controlling throttle valves of which holds the throttle rigid and immovautomobiles by hand or foot, held not antici- able so long as the pedal is depressed, as pated, valid, and infringed.

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

a jointed connection involving a lever ful

crumed at a fixed point upon the engine, and New York.

to provide a lost motion connection in the Suit by the Williams Bros. Aircraft Cor- connecting rod. This rendered the manual poration against the Gould-Mersereau Com- control inoperative whenever the pedal conpany for infringement of patent. Decree for trol is in use. The principle of the invention defendant, and plaintiff appeals. Reversed. in suit was making the connecting rod out of

Hervey S. Knight, of Chicago, Ill. (Wal- the primary and secondary member slide upter Christie, of San Francisco, Cal., and D. on one another. A transmitting connection Anthony Usina, of New York City, of coun- from the pedal to the connecting rod is carsel), for appellant.

ried at one end. It is so yielding in the William S. Pritchard, of New York City, direction of the connecting rod movement for appellee.

that motion may be imparted to the connectBefore ROGERS, MANTON, and ing rod bodily or as a whole by the manual HAND, Circuit Judges.

control, even while the pedal is depressed.

The pedal power is not transmitted by rigid MANTON, Circuit Judge. The appellant connecting parts, but by the pedal's operasues for infringement of claims 2 and 3 of tion on the connecting rod or part of the conpatent to Judd, No. 1,139,685, for a control. necting rod. The connecting rod is at all ling mechanism for throttle valves, which times operative and continuously a functionwas granted May 18, 1915, on an applica- ing element of control between the hand lever tion filed September 8, 1914; also for in- and the throttle. It is responsive to the

8 fringement of claims 1, 2, 3, and 4 of patent pedal, because the pedal changes the length to Lloyd M. Williams, Percy J. Williams, of the rod through which the hand lever is and Chester L. Williams, No. 1,284,523, holding the throttle, while the hand lever is granted November 12, 1918, on application still dependent upon a holding means. filed November 4, 1916, for an accelerator In claim 2 it is broadly stated: “A foot

*Certiorari granted 46 S. Ct. 350, 70 L. Ed.

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10 F.(20) 44 controlled device operative on said connec- the manner of a tightly wound spring; such tion to contract the same, against the tension a tube is freely flexible and may be divertof said spring, and thereby actuate said ed into any path, but it will always rethrottle valve independently of said hand- main noncompressible lengthwise, so that, if controlled rod.” In claim 3, a "foot-control- another wire is introduced into the flexiled device, operative on the primary section ble tube, it may be pulled in the tube, even of said rod.” In construction under this though partaking of the path of the tube, Judd patent in place of the rigid rod connec- without the wire straightening out or setion between the crank arms there is employ- curing the shortest distance between the two ed a longitudinally extensible and contract- points, and therefore be serviceable as a able rod, comprising a primary section and a

means for transmitting motion. Williams secondary section; the former being tele- used the Bowden wire between the operative scoped into the latter. The outer end of the upper end of the pedal and the sliding prirod section is pivotally secured to the free mary member of the connecting rod, with its end of the crank arm by a hooklike extension remote end in floating support upon the conscrewed into the rod section. Rigidly se- necting rod in the same sense that it rides cured to the rod section is a laterally project- with the connecting rod on the flexible tube, ing lug, which slidably works in a longitudi- and is anchored to the rod member, and the nally extended slot formed in the rod section, wire passes on to the sliding rod member, in and affords a stop to limit the longitudinal order to move the latter relatively to the part separation of the rod sections. A coiled performing upon the connecting rod the opspring is telescoped onto the rod section, eration of shortening the connecting rod compressed between a collar thereon and the without disturbing the continuity of the hand inner end of the rod section, and yieldingly lever control. holds said sections in their extended posi- The appellant's commercial structure uses tions. The rod sections complete the con- this flexible wire tube. The coiled spring innection between the hand piece and throttle terposed between the two collars, as in the valve. While contracted by the foot mech- Judd patent, performs the function of holdanism, this extendable or contractable con- ing the extendable and contracting.connectnecting rod exists as a continuing operative ing rod in its normally connecting position. and effective connection between the two When the throttle is depressed, the yielding crank arms and the throttle, and is the crux of the spring permits the throttle to open inof the whole situation in the Judd patent, dependently of the rigid connecting rod, because the necessary result thereof is to which latter is movable only as a hand mechcause the foot control to operate upon a anism. Thus the hand-actuated mechanism changed length of the rod without disturbing and the foot-actuated mechanism may open it as such operative connection between the and close the throttle valve independent of two cranks, thereby bringing about the inde- each other. pendence of the action between the hand and [1] Of the patents referred to as prior art, foot controls, which enables either to operate Hess, No. 1,174,981, granted August 26, without impairing the control which the 1923, Bowmann, No. 1,132,907, granted July other has over the throttle. And this is the 28, 1923, and Gibson & Staples, No. 1,131,identifying novelty of the invention.

831, granted March 16, 1915, were copending The Williams patent is the same oper- applications in the Patent Office with the ative principle as the Judd patent; that is, Judd patent. They cannot aid in the deit has a similar organization of elements, but fense of prior inventions as distinguished there is a different structural detail. The from anticipation. This court said in Davis, means through which the Williams structure etc., v. Alexander Milburn Co., 1 F.(20) embodied the Judd principle of rendering the 227 : pedal operative upon the two-part connect- "Priority of invention does not mean thro ing rod enables it to perform an operation same thing as anticipation in invention. The on the rod and change its length, while leav- logical reason for sustaining priority of ining the rod a continuing operative element vention is to prevent double patenting, and of control between the hand-adjusted crank double patenting is forbidden, not because and the carbureter crank, which consists of that phrase can be found in any statute, but a device known prior to the invention, al- because two monopolies of the same entity though never before used in this manner, as are inherently repugnant to the essential nathe Bowden wire. In its operative principle, ture of the patent system. a tube is produced by coiling a wire after The patents of earlier applications must

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be considered for whatever they disclose. In Spencer, No. 1,081,166, the power is “This should, we hold, be limited to such mat- transmitted from the pedal through a rigid ters as are included in their several claims, thrust rod to a bell crank, fulcrumed upon unaided by their specifications or by extrin- a fixed pivot upon the engine, and so consic evidence except where necessary to eluci- necting the throttle lever through another date and make the same clear." Farmers' rigid thrust rod as to render the pedal enHandy Wagon Co. v. Beaver, 236 F. 731, 150 tirely dominant, and of necessity a lost moC. C. A. 63. In neither of these patents tion connection. In this instance it is a flexcalled to our attention is there any claim ible chain, through which the hand crank may which is directed to the subject matter in any act upon the rod only when the throttle is way conflicting with or included in the scope not in function. with Judd's claims.

The citations of the prior art cause the The most important of the other prior foot-control devices to operate upon either patents upon which reliance is placed by the

a rigid arm, an unyielding thrust rod, or an appellee are the patents to Schmidt, Huff, intermediate lever pivoted upon a fixed point Benjamin, and Spencer. We find no reason outside of the rod, and which act upon the for considering the others.

throttle, with the result that the pedal comThe patent to Schmidt, No. 843,722, ei- pletely dominates the throttle whenever it is ther passes the power from the pedal to the in function, and the principle of operation throttle crank directly by the rigid nonexten- is in this respect different from that of the sible rod, and uses the spring acting upon the patent in suit. lever as a lost motion device in the opera- [2] As a reference against the Williams pattion of the hand crank, or it passes from the ent, we are referred to the Autocar illustrapedal, through the rod, to a lever fulcrumed tion of 1908. This shows a device for conon a fixed point on the engine, and this in trolling a timer on a car using the Bowden turn is connected by a rigid rod to the throt- wire. This illustration wholly lacks any distle lever, leaving the spring between the lever closure of mounting such transmitting conand the rod leading to the hand crank to nection upon an extensible connecting rod. serve as a lost motion device. There is no It refutes any such mounting by teaching, as operation of the pedal upon the extensible a basic and indispensable element of its use, connecting rod, and therefore there is no pos- the anchorage of one of its telescoping memsibility of performing the operation of the bers upon a fixed part of the car, and the Judd principle.

use of means for holding it positively to Huff, No. 1,029,685, operates upon the every adjustment. principle of transmitting the power from The British patent, No. 22,638, suggests the pedal through a rigid rod to a lever hav- the control of brakes and speed gears from ing a fixed pivot, that connects up to the two different positions, using the Bowden hand crank with the same rod through the wire. It refers to disadvantages, and to medium of springs, producing another in- overcome which the patent describes two telstance of pedal domination coupled with lost escoping members, which would not do for motion connection. It is distinguishable the purpose of the patent in suit. This befrom the pedal operation on the hand crank cause one of them is to be connected upon connecting the rod, for the purpose of chang- the fixed anchorage, while the other is ing such connecting rod without retiring the connected with the brake or gear to be hand crank from functioning.

moved. In Benjamin, No. 1,067,097, the pedal The contribution by Williams to the appeltransmits through a rigid rod to the slide, lant's commercial device is an improvement. which in turn rocks the intermediate lever It is more than the work of a skilled mechan. having a fulcrum on the rod, which is fixed ic. Nobody thought of transmitting power by the governor, so that, if the motion ul- by the Bowden wire. Others, seeking a solutimately reaches the throttle lever through tion of the want, adopted other methods. the rigid, unyielding connections, that ren- The need had existed, and the art seems to ders the pedal wholly dominant at all times. have been satisfied with what Judd and WilThe hand crank is so related to the slide that liams accomplished, as is evidenced by the springs act merely as lost motion devices. commercial success of the appellant's device. The foot pedal does operate upon [3] The appellee's device does not depart hand crank action, but takes the connection from the new principle of the appellant's entirely away from the influence of the hand commercial structure made under the patents, crank.

although it was changed in detail after the

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