Gambar halaman


11 F.(20) 432 on Shoemaker, except as to the down draft side fire box, and a single set of water legs. and the air-tight ash pit doors. I need add Before taking up the details I may consider nothing to what I have said in respect of the same objection raised by the plaintiff to these. Claim 22 is the same, except for the this disclosure as to Shoemaker and Greene; position of the grate, which is, however, re- i. e., that Bernhard's is not a down-draft furproduced in Shoemaker.. Claim 23 is the

The answer is the same. The draft same, except for the added element of the in these furnaces can only come in through small door L, giving into the combustion one or both of the doors indicated by the chamber. Apparently Shoemaker does not numbers 32, 33. If the bottom door be closed have this, though there are in Figs. 2 and 3 and the top opened, the furnace is a downsuch doors indicated, which could be so used. draft, at least in the only sense that the deIt is in any case a small matter, not suffi- fendant's is a down-draft boiler; if the cient to make an invention.

order is reversed, it is an up-draft. The difShoemaker seems to me to have thought ference, as in the case of the other references, ont and perfected every element which Sur- is merely in the use of the furnace; the derell disclosed in his general patent, at least sign is precisely the same as Surrell's in this so far as the defendant made use of Sur- regard, unless it be for the specification of rell's combination. The difference of design a tight ash pit door, which I have already is great enough, it is true; but these claims considered. There can be no patent for a speak generally. Anything which catches new use of an old disclosure. the defendant falls foul of Shoemaker, and Coming, then, to the details of constructhe claims in suit are in my judgment void. tion, one finds a boiler in sections, in this

Greene's patent, 766,440, is in design regard like Surrell's or the defendant's. The nearer to Surrell than Shoemaker; but the front receives the coal, which is held in a fire box is constricted at the base, and the triangular space between the front, the grate, difference may perhaps be patentable, more and a series of water legs. These legs do not so than the distinction on which in part, any- come down to the level of the water drum way, Surrell was allowed over it; i. e., that and are spaced more widely than in Surrell; the water drum was above the grate. The but they are nevertheless intended to form draft connections are not shown in Greene, the top and rear wall of the fire box (page 2, but the first examiner of Surrell's applica- lines 79–83), and must necessarily make a tion ruled, I think correctly, that they were grate for the coal. The combustion chamber, not necessary. Common knowledge certain- which lies above and to the rear of the fire ly supplies them. The furnace is represent- box, is between these legs, the bottom of the ed as blocked on four sides, except for a boiler (which Bernhard calls the “crown door to the ash pit. The feed magazine is not sheet member"), and its rear. The chamber disclosed. Clearly it must have openings is not entirely open, because there are two somewhere. If the ash pit door be closed rows of vertical tubes, or columns, 25, interand the feed doors left open, the furnace will posed in it, around which the gases must operate by down draft; if vice versa, then pass. These are part of the water circulaby up draft. While I think the patent not tion system of the boiler proper. The gases a sufficient anticipation, because of the form pass out of the combustion chamber at one of the fire box, already mentioned, and pos- side of the furnace and, reversing their disibly for the position of the water drum, rection, through another similar chamber to nevertheless the point on which the plaintiff the other side, where they again reverse dichiefly relies—i. e., the down draft-does not rection, and finally reach the chimney seem to me to be well taken. Shoemaker's through a second flue. disclosure was a little closer, but in substance There is but one substantial difference this feaure was the same in each.

between this patent and Surrell's, aside from [2,3] Surrell's second patent in suit, 14,003, the fact that it is, like the defendant's, a being for his sectional boiler, is met neither one-side boiler. In Surrell's the gases leave by Greene, nor by Shoemaker, although it the combustion chamber by means of the may be observed that Shoemaker's water narrow flues between the sections, made by legs and drums are in sections. The nearest fluting or corrugating the sides of the secanticipation to this patent is to be found in tions from the top of the chamber to the the patent to Bernhard, 794,773. Bernhard's lower of two rows of flues within the boiler, boiler is made up of identical intermediate the equivalent of the usual heating pipes. sections, with end sections of different de- In Bernhard's boiler there are no exits for sign. It is like the defendant's present boil- the gas from the combustion chamber, except er, and unlike Surrell's in having only a one- around one end of the boiler into the cham


[ocr errors]

ber, 27, above. Whether this added detail of called the last of them a "collecting flue," Surrell's is of itself a patentable variation, thus giving color to the supposition that it I believe I need not determine here, though was in some way different in function from it seems to me open to some question. I the others. But this cannot be, so far as I shall in any case assume for argument's sake can see. It is true that the gases are drawn that it is. Certainly, if in the form of "cor- out only from the end of this upper or last rugations,” it should be entitled to a nar- division of the chamber, and that all of it row protection.

must therefore pass up through the first and I need not dwell upon such elements as second, yet this would equally be true if the damper door, which I considered before; there were no rows of columns or tubes withthere can be no invention in such a detail, in it. any more than in having two legs, instead of If one looks at Surrell's boiler, and sees ono to each section, Passing these, I can what he had in mind in describing the “flues" come directly to the matter of infringement. in his claim, it must be apparent that it was In what terms is that feature described which something altogether different from what the distinguishes Surrell from Bernhard, I mean defendant has done. Flues are normally the connection between sections of the com- long, narrow passages through a wall, and bustion chamber directly with the first return that is how Surrell used the word. One may flue? In claim 1 it is described as consists casuistically argue that, if you divide an ing of flues made by "corrugations” in the open space by columns, the spaces between sides of the sections; in claim 2, as “means them are flues; but the impropriety of the upon the opposite face of each said section term is obvious, as soon as one is candid. whereby flues, extending from the air and The tail has been made to wag the dog. Just gas combustion chamber to the heat areas as no one would properly think of regarding of said boiler,

are formed.” The the two lower divisions of the combustion distinction so maintained between the claims chamber as connected by Aues, because there makes it necessary to hold rather rigidly in are columns within it, so one would not diclaim 1 to the word "corrugations”; it be- vide the third part from the rest, because, ing clear that claim 2 is intended to speak the twist being there most rapid, the colmore generally. · Certainly there is no war- umns are broadened at their circumferential rant whatever for speaking of the defend- end. ant's sections as having "corrugations” on It is therefore entirely clear what Butler the face of the sections. If the plaintiff can did. He took Bernhard's boiler and twisted hold the defendant at all, it must be under the combustion chamber upon itself through claim 2.

an angle of substantially 180°, making it Coming, then, to the defendant's boiler, necessarily deeper and longer in section. He and omitting any consideration of the fire kept the two rows of water tubes, 25, changbox, which is, so far as I can see, function- ing the shape of the second row for the reaally identical in all three structures, Bern- son just given. Had he stopped here, there hard's, Surrell's, and the defendant's, one could be no conceivable question of the profinds the combustion chamber with a struc- venience of his boiler; but he did more, and tural limit on one side-i. e., the grill of water it was only this step which has exposed him legs—but on the other structurally ended to any color of claim for infringement at all. only after the whole chamber has been Had he sucked the gas out of the end of all twisted on itself and abuts upon the front three of the divisions made by the two rows wall of the boiler. This space is, however, of tubes, he would have done no more than divided into three parts by two rows of col- Bernhard; but he closed up the ends of the umns or tubes, one leg of each row being in first two divisions and sucked out the gases each section, precisely as Bernhard's com- only through the third. In so doing, howbustion chamber was divided. The upper of ever, he did not change his combustion chamthese legs is not columnar, but a half square ber into three chambers connected by "flues," in section.

nor did he make the result different by calling The gas, entering the chamber through the third division a "collecting flue." His the grill, passes through all three divisions of boiler still shows the inheritance of its prothe chamber, and is sucked out at one end of genitor, and has no likeness to Surrell. Nor the boiler into a return flue, whence it reaches is it relevant that, after so doing, it has bethe chimney. I hardly think I should have come possible to omit altogether the upper even thought of distinguishing between the passage between the “crown sheet member" three divisions of the combustion chamber at and the "dome.” all, had it not been that the defendant has It is clear, then, that Surrell's claim

[ocr errors]

+(2(1) 444.

11 F.(20) 441 ought not to be interpreted as covering the John Ralph SURRELL and Molby Boller Com. defendant's boiler. The words have a dif.

pany, Plaintiffs-Appellants, v. PIERCE, BUT.

LER & PIERCE MFG. CORPORATION, ferent meaning, and are used colloquially, Defendants-Appellees. not esoterically. The defendant has no flues, and to speak of the spaces between the col

(Circuit Court of Appeals, Second Circuit.

January 4, 1926.) umns as such is to ignore their origin, and to make the claim invalid. I therefore find

No. 117. that neither claim of patent 14,003 is in

Appeal from the District Court of the fringed.

United States for the Southern District of Nor do I believe that Butler copied Sur- New York. rell's boiler, even after getting the supposed hint that a single-sided boiler might easily

Eugene Mackey, of Franklin, Pa., for aps be made. Butler had no need to look to Sur- pellant Surrell. rell, and, when he made his boiler, he kept of New York City, for appellant Molby

Charles Neave and Clarence D. Kerr, both far away from him. He was working upon

Boiler Co. Bernhard's disclosure, for Bernhard was an employee of the defendant. He had nothing

Howard P. Denison and Eugene A,
to learn and nothing to borrow from Surrell, Thompson, both of Syracuse, N. Y., for ap,
though, as is commonly the case with in- pellees.
ventors, Surrell supposed that all roads must Before ROGERS and HOUGH, Circuit
of necessity lead to Rome. There is no evi- Judges, and AUGUSTUS N. HAND, Dis,
dence to support his quite gratuitous assump- trict Judge.

PER CURIAM. Decree affirmed (11
The Counterclaim.

F.[20] 432), without costs.
[4] Surrell's boiler was certainly disclosed
before the date of filing of Butler's applica-
tion, and before any date which can be
stretched into an antecedent date of inven-

a tion, the latter part of the year 1911. Sur

'THE HELMSMAN, rell filed on November 25, 1911, and his Washington avenue boiler was in use still

THE TUSCAN, earlier. If the defendant can succeed at all, (District Court, S. D. New York. January 4, it must therefore be because it was an in

1924.) fringement to change Surrell's double boiler

1. Collision 66. into a single one. There is no difference be

Evidence held to show steamer at fault in tween the two forms, except that one side collision with scow in tow in comparatively has been cast away and the space closed up.

open water. Indeed, it is possible that Surrell got the idea 2. Collision Om75–Failure of scows to carry of a single-side boiler from Butler, in spite Tights required by International Rules held of his supposition that the derivation was

not to have contributed to collision (internaquite the opposite. It makes no difference.

tional Rules, art 3 [Comp. St. 8 7839]; In

land Rules Act, 8 2 [Comp. St. 8 7906]; inThere was nothing new in the idea of a land Regulations, art, 3 [Comp. St. 7877]). single-feed boiler for either of them, be- Failure of scows in tow on high seas to cause Bernhard had twice disclosed it in carry red and green lights, required by Interhis patents, assuming that it was patentable national Rules, art. 3 (Comp. St. & 7839), in

stead of white lights, required by regulations of at all. The idea being in existence, Surrell Board of Supervising Inspectors, with approval surely may make single his double boiler, of Secretary of Commerce, under Inland Rules whether it falls within Butler's claim 13 or Act, $ 2 (Comp. St. § 7906), held not to have not. If it does, the claim is invalid; if But- contributed to collision with steamer; the tug

having carried lights required by Inland Reguler's claim is to survive at all, it can be only lations, art. 3 (Comp. St. $ 7877), substantially because Surrell's single boiler does not in- identical with International Rules, art. 3. fringe it. I need not decide where the truth lies between these alternatives. In neither In Admiralty. Libel by the Munson event can the defendant succeed on this claim, Steamship Line against the steam tug Helmsand in the interest of the patent I may con- man, Robert Rogers and Frederick E. Jones, tent myself with a finding of noninfringe- claimants, and libel by Frederick E. Jones ment.

against the steamer Tuscan, the Munson Bill and counterclaim dismissed, without Steamship Line, claimant, wherein the Muncosts.

son Steamship Line impleaded the tug

*Decree affirmed in 11 F.(20) 444.

Helmsman. Libel of the Munson Steam- this was so, because the tide was setting ship Line dismissed, and interlocutory decree southward more or less in the course of the for libelant Jones.

tow, which is said to have been southeast

1/2 east. Nor do I credit the estimate of the Burlingham, Veeder, Masten & Fearey,


second officer of the Tuscan that the tide in New York City (Chauncey I. Clark, of New these wide, open coastal waters could have York City, of counsel), for Munson S. S. had a force of anything like three knots. It Line. Bigham, Englar & Jones, of New York much better evidence of the direction and

lay upon the claimant of the Tuscan to give City (L. J. Matteson, of New York City, force of the tide, if it intended to rely upon of counsel), for the Helmsman and cross

its effect upon the tow as the cause of the collibelant Jones.

lision. In point of fact, it relied principal.

ly upon a situation first developed by the WARD, Circuit Judge. November 20, pilot, the only witness it examined at the 1920, between 9:30 and 10:30 p. m., the trial. He said that the Helmsman, after steamer Tuscan was lying about 21/2 miles passing the Tuscan, changed her course to southeast of Scotland Lightship, waiting for starboard, and so brought the tow down upa pilot to take her in to New York. The on her. The testimony was quite overwhelmtug Helmsman, with a tow of two loaded ing that the tow always remained in line with dump scows tandem, with a hawser of 200 the tug, and I cannot accept this belated exfathoms to the first scow, F. J. 33, and a planation, which is quite inconsistent with hawser of 100 fathoms to the second scow, the statement of counsel for the Tuscan beF. J. 22, making a tow of about 2,000 feet fore the libel was filed, with its pleadings in length, was bound to the dumping ground filed, and with the testimony of its witnesses on the high seas outside of the limits of the examined by deposition within a few days inland waters.

after the collision. There was a light wind from the east, What, then, did cause the collision! I and the tide was ebb; but there was no think it was because, after the Tuscan had proof of its force, except the testimony of begun to proceed to New York on a course the pilot that it was setting to the south- to pass the Helmsman and her tow starboard ward about the strength of the ebb, and the to starboard, the pilot thought he was gettestimony of Cameron, second officer of ting too close, became excited, and rang full the Tuscan, who is not shown to have any speed astern on her engines several times, acquaintance with the harbor and coastal which had the effect of throwing her bow tides of New York, that he did not know the to starboard toward the tow and bringing strength of the tide, but thought it was about her into collision with F. J. 22. The orders 3 knots. The port bow of the Tuscan, head- to the engines, as given in the rough engine ing about north-northeast, came into colli- room and deck logs, do not correspond, as sion with the second scow, F. J. 22. Both appears from the following: , vessels sustained damage.


Engine Room, The Munson Steamship Line filed a libel P. M.

P. M.

10:20. Proceeding against the tug Helmsman, to which Robert

un- 10:13. Stop.

der slow bells Rogers and F. E. Jones filed an answer, as

astern. claimants of the tug. F. E. Jones, as owner 10:37. Full astern. 10:38. Half astern. of the dumper F. J. 22, filed a libel against

10:39. Full astern.

10:10. Barge rammed 10:40. Full astern. the steamer Tuscan, to which the Munson

ship. Line filed an answer, as claimant, and also 10:43. Stop.

10:45. Stop. filed a petition under the fifty-sixth rule in admiralty, impleading the tug Helmsman. So no orders were given to the engine, aoBoth causes were tried together.

cording to the engine room log, between [1] The statement of counsel for the Mun- 10:13 and 10:38; whereas, according to the son Line at the time depositions were taken, deck log, the steamer was proceeding under a few days after the accident and before the slow bells astern between 10:30 and 10:37. libel was filed, as well as its answer to the But both logs do agree that for some six libel of F. E. Jones, and the testimony of minutes the engines were working astern, all its witnesses examined by deposition, was during which period the collision took place. that the fault of the Helmsman was in let- The entry in the deck log has most obting her tow sag down under the influence of viously been altered, though the third mate, the ebb tide upon the Tuscan, which was who made it, denies that there was any algoing astern on her engines. I do not believe teration. We naturally inquire why this


11 F.(20) 441 was done, keeping in mind the inferences to way of the Helmsman and her tow, by the be drawn in odium spoliatoris. The words exercise of ordinary care and skill, in these "slow" and "astern" have been written over

open waters. The paper shows this plainly; [2] We now come to a question of law. It the longitudinal blue line, on which "slow" is is admitted that the Helmsman and her tow written, and a vertical red line, running were on the high seas, and not upon the through "astern," having been rubbed out. inland waters, when the collision occurred; Counsel for the tug and the dumper points and that under the International Rules the out that the word "proceeding" naturally dumper scows should have carried red and means going ahead; that the expression green lights, whereas they only had white “proceeding under var. bells" is frequently lights, in accordance with the rules adoptused, for instance, at 8:30 p. m. of the same ed by the Board of Supervising Inspectors night and twice in the entries for the preced- and approved by the Secretary of Commerce ing day. He gives reasons quite convincing applicable to barges towed by steam vessels to me that the word erased was “var.," for between Troy and the boundary line of New "various." The plural "bells" is consistent York Harbor at Sandy Hook, in accordance with various orders, but not with one order with section 2 of the Inland Rules (Act May to slow. There is nothing to show what word 25, 1914, 38 Stat. 381 [Comp. St. § 7906]). was erased when "astern" was written in. If this fact could have contributed to the I think it was "ahead," although that word collision, the Helmsman and F. J. 22 are also was superfluous, if "proceeding” means go- at fault. But the Helmsman did carry the ing ahead.

lights required by article 3 of the Inland I believe the Tuscan was proceeding on Regulations (Act June 7, 1897, c. 4, 30 Stat. her course to New York after she had picked 96 [Comp. St. § 7877]), which is almost up the pilot and starboarded, so as to shut exactly in the same words as article 3 of the out her red light and to show her green to International Rules (Act Aug. 19, 1890, c. the tug and tow, and that there was plenty of 802, 26 Stat. 320 [Comp. St. § 7839]). water in this space of more than four nau- Therefore the pilot and the licensed navigatical miles between Scotland Lightship and tors on the Tuscan, who admit that they the Ambrose Lightship for a powerful steam- saw these towing lights, knew that the Helmser like the Tuscan, under full steam, to give man had a tow of more than one scow and a wide berth to a slowly moving tug and tow, that the tow exceeded 600 feet in length. such as the Helmsman's, even if they were Furthermore, the pilot admitted that he swinging down upon her. When the pilot saw the two dumper scows from the time he blew the alarm and rang full speed astern, first discovered them, half a mile away, down some three minutes before the collision, he to the collision. So did the captain and was evidently in a state of great excitement chief mate; the latter, though saying he did because of the danger of collision. Backing not see the lights of the first scow, admitted full speed astern for three minutes would that he could see the tug and the barges, and have just the effect of carrying the Tuscan's the course they were on, without any difficulbow to starboard, quite likely as far as ty. The purpose of the International Rules north-northeast.

was accomplished, even if the dump scows I do not see any inconsistency between the did not carry red and green side lights, as testimony of Clark, the master of the Helms- required by article 3. No defense of this man, and Lindsay, the mate. Both say the kind was pleaded, and I find that the failure Tuscan showed her red light, heading about to comply with the regulation could not have north-northeast while she was waiting for contributed to the collision. the pilot, and that afterwards she got on a There may be a decree dismissing the licourse starboard to starboard with the bel of the claimant of the Tuscan and its Helmsman and her tow, and showed her petition under the fifty-sixth rule, with costs, green light. It is quite unbelievable that the and the usual interlocutory decree in favor Tuscan could not have kept well out of the of the owner of F. J. 22.

« SebelumnyaLanjutkan »