the joints, and in the specification the patentee has described tar-paper or its equivalent.

A liberal construction is to be given to the language of all patents and specifications, so as not to limit the actual invention of the patentee.

EDWARD FITCH and JOHN VAN SANTVOORD for plaintiff.

ARTHUR VAN BRIESEN, for defendant.

SHIPMAN, J.:

This is a motion for an attachment for contempt of court by reason of the alleged violation of an injunction order.

Reissued letters patent dated May 2, 1871, were issued to the plaintiff for an improved concrete pavement. The specification, including the portions subsequently disclaimed, and which are inclosed in brackets, states that the invention

Relates to a concrete pavement which is laid in sections, so that each section can be taken up and relaid without disturbing the adjoining section. With the joints of this sectional concrete pavement are combined strips of tar-paper, or equivalent material, arranged between the several blocks or sections in such manner as to produce a suitable tight joint, and yet allow the blocks to be raised separately without affecting the blocks adjacent thereto.

After describing the composition of the concrete the specification continues:

While the mass is plastic I lay or spread the same on the foundation or bed of the pavement, either in molds or between movable joists of the proper thickness, so as to form the edges of the concrete blocks a a, one block being formed after the other. When the first block has set I remove the joists or partitions between it and the block next to be formed, and then I form the second block, and so on, each succeeding block being formed after the adjacent blocks have set [and since the concrete in setting shrinks, the second block when set does not adhere to the first, and so on], and when the pavement is completed each block can be taken up independent of the adjoining blocks. Between the joints of the adjacent blocks are placed strips b, of tar-paper or other suitable material, in the following manner: After completing one block, a, I place the tar-paper b along the edge where the next block is to be formed, and I put the plastic composition for such next block up against the tar-paper joints, and proceed with the formation of the new block until it is completed-in this manner I proceed until the pavement is completed, interposing tar-paper between the several joints, as described. The paper constitutes a tight water-proof joint, but it allows the several blocks to heave separately from the effects of frost, or to be raised or removed separately whenever occasion may arise, without injury to the adjacent blocks. [In such cases where cheapness is an object the tar-paper may be omitted, and the blocks formed without interposing anything between their joints, as previously described. In this latter case the joints soon fill up with sand or dust, and the pavement is rendered sufficient tight for many purposes, while the blocks are detached from each other and can be taken up and relaid, each independent of the adjoining blocks.]

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The claims are—

1. A concrete pavement laid in detached blocks or sections, substantially in the manner shown and described.

2. The arrangement of tar-paper, or its equivalent, between adjoining blocks of concrete, essentially as and for the purpose set forth.

On February 2, 1875, the plaintiff disclaimed the portions included in brackets, and in his disclaimer also said: "Your petitioner hereby

disclaims the forming of blocks from plastic material without interposing anything between the joints while in the process of formation." In April, 1875, the bill in equity of the plaintiff against the defendant, alleging an infringement of said letters patent, and praying for an injunction and an account, was heard upon the pleadings and proofs by this court.

It was clearly proved that the defendant had made and laid the pavement described in the patent, except that he had substituted tin-foil between the joints in lieu of tar-paper. An attempt was made to show that the invention had been anticipated by other manufacturers of concrete pavement in this country, which attempt was unsuccessful.

The American patent of Horace P. Russ, dated March 14, 1848, and the English patent of John Little, dated April 29, 1864, were also relied upon by the defendant as anticipatory of the plaintiff's invention. The Russ invention consisted of a foundation pavement of concrete, which was afterward to be covered with ordinary stone flagging. This subpavement of concrete was divided in places where it covered a sewer or drain into panels, by bars of iron forming crosses united by an eyebolt with a ring in the head of each bolt. When repairs were to be made upon the sewer the panel could be lifted without injury to the rest of the concrete, by suitable appliances attached to the ring.

The Little patent was for a metallic frame-work, filled in with concrete blocks. Neither device had substantial similarity to the pavement of the plaintiff.

As the novelty of the plaintiff's invention was not disproved, and as the infringement was manifest, a decree was rendered directing an injunction and an accounting before a master.

The plaintiff has now filed a motion for attachment claiming that the defendant is violating the injunction and the patent by the construction of the pavement which is hereafter described.

As the parties were at issue upon the manner in which the pavement was constructed, a reference was directed to a master to find the facts, who has reported as follows:

The ground was prepared by grading to four inches below the final and completed surface of such pavement. Upon the surface of the ground so graded were placed wooden frames or mold-boards four inches in height or thickness. In such frames or mold-boards were first formed the one-half of the proposed diamond-shaped blocks, the said frames were then removed back, so that their points of separation rested against and accorded with the points of the half-blocks of pavement already laid, then making, by means of the sides of the two completed half-blocks and the two sides of the frames or mold-boards, the shape for the diamond-shaped block to be made by the next operation. The materials used and the manner of using them were as follows: A lower course upon the ground, as graded, was laid, composed of one part of cement, three parts of sand, and two parts of gravel or broken stone (none of the particles of gravel or broken stone exceeding two inches in diameter). This lower course was laid to the depth of three inches and tamped down. Before the second block is then laid, in its lower course, the lower course of the first block is allowed to become "well set." After the lower layer has been thus laid to within one inch of the

final surface, the upper layer is then put on, which upper layer consists of one part of cement and one part of fine sand, such upper layer being put upon the first formed block first, and shortly after such first block had been made with the bottom layer thereon. The top layer of cement and sand was then placed upon the bottom layer of the second block up to and against the top layer of the first block, and the laying of the pavement was then continued. After the laying of the two adjoining blocks, and while the upper material for the second block was in a soft or plastic state, a trowel or other similar instrument was inserted between the top layers of the first and second block through the upper layer for the purpose of making a separation or joint between them thus making what is commonly known and designated as a block pavement. It is conceded that this description of the method in which the pavement is made is correct.

The question at issue between the parties is whether a pavement constructed in the manner described is an infringement of the patent. That the defendant's pavement is constructed of separate layers of coarse and fine cement I do not regard as material. The upper layer is divided into blocks by the insertion of a trowel after the separate sections have been made in the frame and while the concrete of the second block is still plastic. The defendant thus makes a block pavement, which can be taken up, so far as the blocks into which the top layer is divided are concerned, without injury to the adjoining blocks. The pavement possesses the advantages of the plaintiff's invention.

The plaintiff forms his joints by the permanent interposition of some material between the blocks, which material also serves in some degree to make a tight joint. The defendant forms a joint by the insertion of a cutting instrument between the blocks and then removing the instru ment, leaving the joint an open one for the time.

The question between the parties becomes one of construction of the patent. Is the patent confined to the making of the joints by the permanent interposition of some material between the blocks, or does it embrace the making of the joints by the temporary interposition of a cutting material while the pavement is in process of formation? For the purpose of determining this question, it is necessary to ascertain the actual invention of the patentee.

It was manifest upon the former hearing of this case that the old methods of laying cement or concrete pavements were in sections, be tween joists or frames, without any attempt to divide the pavement into blocks. The pavement was a uniform surface of concrete, subject to contraction and expansion from natural causes, and when it became cracked through the agency of frost, was not easily repaired. The improvement and the invention consisted in dividing the pavement into blocks, so that one block might be removed and repaired without injury to the rest of the pavement. Although this improvement, however effected, whether by the insertion of a trowel or by the permanent interposition of some other means of separation between the blocks, now appears to have been a simple invention, yet it was one which the history of the arts shows to have been previously unknown, and to have been of practical importance, and to have been received with much favor by the public.

The plaintiff supposed that his invention included a block pavement in which the blocks were formed either with or without the interposition of something between the joints. He subsequently ascertained that he was mistaken, and that the pavement was not divided into blocks with out the interposition of some material to form joints. The discovery of this fact led to his disclaimer, wherein he disclaimed the forming of blocks from plastic material without interposing anything between the joints. This disclaimer left the patent for a pavement wherein the blocks were formed by the interposition of some separating material between the joints, and in the specification he has described tar-paper or its equivalent.

A strict construction of the patent would limit the patented invention to the permanent interposition of the equivalent material, but such a construction would be a limitation of the actual invention. The method adopted by the defendant accomplishes the substantial results of the plaintiff's invention in substantially the same way in which they are attained by the plaintiff. The difference in method is that the material is not permanently interposed between the blocks, and this leads to the only difference and result, which are, that the defendant's method leaves an open joint instead of the tight joint of the plaintiff, which is not the material part of the plaintiff's invention. The material part was to make a cement pavement separated into blocks by joints. This was the end to be accomplished by each party.

Inasmuch, then, as the plaintiff's actual invention is substantially reproduced by the defendant, and there is substantial identity in the means by which the material portion of the result is accomplished, I am of opinion that the mode of operation which the defendant has adopted is within the proper limits of the patent and is included within the first claim.

The well-known and just principle of the courts of this country is that a liberal construction is to be given to the language of all patents and specifications, ut res magis valeat quam pereat. In pursuance of that rule, "the technical claims of a patent are to be construed with reference to the state of the art, so as to limit the patentee to, and give him the full benefit of, the invention he has made." (Estabrook vs. Dunbar, 10 PATENT OFFICE GAZETTE, 909.)

It was well understood by both parties upon the argument that the object of the motion was not to mulct the defendant in damages, but to obtain a decision in regard to the extent to which the plaintiff was to be protected in the enjoyment of his patent, which had been decided to be valid and to have been infringed. I am of opinion, from all circumstances which are disclosed in the affidavits and the testimony before the master, that there has been a studied attempt on the part of the defendant to obtain the benefit of the plaintiff's invention. But I am not disposed to impose a severe fine in view of the fact which has been stated.

The motion is granted, and a nominal fine of fifty dollars, in addition to a sum equal to the fees of the master upon this reference, is imposed upon the defendant, to be paid to the plaintiff as partial indemnity for his expenses.

[United States Circuit Court-Northern District of New York.]

PAUL DENNIS vs. WALDEN EDDY AND ABRAM REYNOLDS, SURVIVORS OF SAMUEL LANGDON.

JOHNSON, C. J.:

O. G., vol. xi, p. 833.

In Equity-Before JOHNSON, J.-Decided March 22, 1877.

DECRRE.

This cause coming on to be heard upon the pleadings and evidence, and it being suggested that the defendant, Langdon, has died since this action was commenced, and after hearing E. F. Bullard, counsel for the complainant, and E. Cowan, counsel for the defendants, and the court having duly considered the same, and being of the opinion that the complainant was the first and original inventor of certain new and useful improvements in shovel-plows, not known or used before, as described and claimed in his patent bearing date June 19, 1866, adjudges and decrees that the defendants, and each of them, have infringed the said patent in making and vending shovel-plows with wings, embracing the invention and improvement covered by said letters patent.

And it is further adjudged that the wings upon the mold-board of the plow, made by the defendants and marked "Complainant's Exhibit T, Dennis," and referred to in the complainant's evidence, are in substantial accordance with the specifications annexed to said patent, and are an infringement of the rights secured to the complainant by said patent dated June 19, 1866, referred to in said complaint.

And it is further adjudged and decreed that the said defendants, their agents and servants, and each and all of them, be restrained and enjoined from making, vending, or using, or in any manner disposing of shovel-plows, or mold-boards for such plows, embracing the inventions and improvements described in said letters patent.

And it is further adjudged and decreed that this cause be referred to E. W. Paige, of Schenectady, as special master, to ascertain and report the number of shovel-plows made, and the number sold by the defendants, or either of them, with steel wings of the form mentioned in said "Exhibit T-Dennis," or substantially of the form covered by the said patent, and the damages the complainant has sustained, and the profits derived by the defendants, or either of them, by reason of such infringements.

And, upon the coming in and confirmation of the said report, that said complainant have a decree and execution for the amount found due him, and also for the costs of this suit to be taxed.