3. APPEAL RULE BINDING AFTER PROMULGATION. Even if there were no rule at the time the right of appeal accrued, after the promulgation of a rule regulating the time for taking appeals the appellaut became bound by it. Mr. Wm. H. Singleton for the appellant. No appearance for the appellee. Mr. W. A. Megrath (law-clerk) for the Commissioner of Patents appeared as amicus curia on motion to dismiss the appeal. MORRIS, J.: This is an appeal taken on May 12, 1896, from a decision rendered by the Commissioner of Patents on June 9, 1894, C. D., 1894, 92; 68 O. G., 657; and the appeal was not filed in this court until June 2, 1896, nearly two years after the rendition of the Commissioner's decision. We have just determined in the case of "in the matter of the applica tion of George Bryant" that no such appeal can be entertained by us. It comes too late. There is no justification for the delay and no attempt to excuse it. Whether the case is to be governed by the rules of this court promulgated on September 29, 1894, whereby a limitation of forty days was provided for appeals, or by the rules in force prior thereto, which provided for a general limitation of twenty days for appeals to this court, the right of appeal is now barred. The theory of the appellant seems to be that he had two years wherein to file his appeal, and this theory is based upon section 4894 of the Revised Statutes of the United States, wherein it is provided that— All applications for patents shall be completed and prepared for examination within two years after the filing of the application, and in default thereof, or upon failure of the applicant to prosecute the same within two years after any action therein, of which notice shall have been given to the applicant, they shall be regarded as abandoned by the parties thereto, unless it be shown to the satisfaction of the Commissioner of Patents that such delay was unavoidable. But even if we assume that before the promulgation of the rules of this court on September 29, 1894, there was justification for this theory, there was no justification for it after the date of such promulgation. The right of appeal is not a vested right that may not be altered by statute or by rule of court made in pursuance of statutory authority to enact such rules, and when the rule of this court regulating the time for taking appeals was promulgated the appellant became thereafter bound by it, and, having the full time limited by the rule, he has no just cause of complaint. The appeal in this case must be dismissed, and it is accordingly dismissed. The clerk of this court will certify this opinion and the proceedings in the cause to the Commissioner of Patents in accordance with the law. [Court of Appeals of the District of Columbia.] PELTON . EVERED. Decided November 10, 1896. 77 0. G., 1600. APPEAL-FAILURE TO PRINT RECORD. The parties failing to print the transcript of record, the appeal was dismissed. APPEAL from the Commissioner of Patents. Mr. T. J. W. Robertson for the appellant. MORRIS, J.: This cause having been called for hearing in its regular order, and it appearing to the court that the parties have failed to print the transcript of record, it is therefore, in pursuance of the eighteenth rule of this Court, now here ordered and adjudged by this court that this appeal be and the same is hereby dismissed. [U. S. Circuit Court-Eastern District of Pennsylvania.] J. G. BRILL COMPANY v. WILSON et al. 1. BRILL-Street-Car-VOID. Decided June 29, 1896. 77 O. G., 1937. Letters Patent No. 315,898, granted April 14, 1885, to George M. Brill, for improvements in summer-cars for street or tram railways, Held to be void for want of invention. 2. INVENTION-SUBSTITUTION OF MATERIAL. An improvement consisting mainly in the use of metal instead of wooden panels for the ends or sides of seats for street-cars does not amount to invention. STATEMENT OF THE CASE. This was a suit in equity by the J. G. Brill Company against Edward H. Wilson and others, trading as E. H. Wilson & Co. and as the Lamokin Car Works, for alleged infringement of a patent. Mr. Francis Rairle for the complainant. Mr. Bernard Gilpin for the defendants. ACHESON, J.: The defendants are charged with the infringement of Letters Patent No. 315,898, granted on April 14, 1885, to George Martin Brill, for improvements in summer-cars for street or tram railways. The nature and object of the alleged invention are thus set forth in the specification: My invention has relation to that form of cars for street or tram railways known as "open or summer cars," and of that kind provided with transverse seats, and has particular reference to the panels for the ends or sides of the seats, and the manner of securing the panels, seat-arms, and frames to one another, and the panels to the sillpieces of the car. Heretofore these panels have been made of thin wood or veneering suitably backed and provided with strengthening ribs or cleats, and screwed to the side posts and seat-frames. These wooden panels being extremely light and frail soon crack or break, and are susceptible of being readily damaged, besides which, as they do not provide any support for or strengthen the connections of the seatframe and side posts, the latter have to be made of extra thickness, in order to obtain the requisite strength for supporting the seat-frames, and in many cases bent or curved or other metal braces or bars attached to the side posts are used for supporting the seat-frames. My invention has for its object to overcome the above-described objections or to provide a summer or open street-car with panels which are not liable to cracks, cannot be readily damaged, and which form a support for the seat-frame and strengthen the side-post connections, whereby the thickness of said posts may be reduced, and all sustaining braces or bars for the seat-frame are dispensed with. My invention accordingly consists of the combination, construction, and arrangement of parts, as hereinafter described and claimed, having reference particularly to a curved or other appropriately-configured panel made of metal, and provided with inwardly-projecting lugs with bolt or screw holes at its bottom and near its top, and with cups or boxes for supporting the ends of foot bars or rungs; second, to a summer-car having side panels bolted to the sill-pieces, and having supporting-lugs for the ends of the seat-frame, which is secured to the panels by a bolt connection known as a "bed-post bolt;" and, third, to a like car having metal panels supporting the seat-frame and the ends of the foot bars or rungs. Then, after a particular description of the several parts, the specification further states: It is evident, therefore, that the use of the metal panels F affords strong and durable end supports for the seat-frames and attached parts, and that said parts may be of a lighter construction than has heretofore been employed in the above-described class of street-cars. All the claims of the patent are for combinations, and the panel is an element in each of them. One cannot read the above extracts from the specification, especially in connection with the plaintiff's proofs, without perceiving that a "panel made of metal" is the great feature of this patented improvement. The other described details of construction and arrangement are incidental and subordinate. It will be observed that the specification states that heretofore these panels have been made of thin wood or veneering suitably backed. In substance, the representation is here made that metal panels for the ends or sides of car-seats had never been used in the construction of street-cars before the described improvement was devised. Now, had this been true the patent possibly might be sustained. (Smith v. Vulcanite Co., C. D., 1877, 171; 11 O. G., 246; 93 U.S., 486.) But the proof is clear that as early as the year 1878 the plaintiff built a street-car in which the panels for the ends or sides of the car-seats were made of metal, and this car was successfully used on the Thirteenth and Fif teenth Streets Passenger Railway (Philadelphia) in March, 1879, and thereafter. It is also shown that in 1883 the plaintiff built and delivered to the East Saginaw Company four cars equipped with metal panels of the same construction. Moreover, the metal panel of the Thirteenth and Fifteenth Streets car structure was used in connection with a post, the latter, however, being on the outside of the panel, whereas the post of the patented structure is on the inner side of the panel. Had this old car structure been brought to the attention of the Patent Officer Examiner, it may be confidently affirmed, in view of the contents of the file-wrapper, that the patent would not have been allowed, but the original rejection would have been adhered to. The evidence now produced, I think, completely overthrows the presumption of patentability arising from the grant of the patent. There is no novelty in any of the elements of the combinations, and all these elements had been used previously in street cars for the like purposes as in the patented structure. Whatever may be new in the construction and arrangement of parts seems to have been the result of mere good judgment and the natural outgrowth of mechanical skill. (Brown v. District of Columbia, C. D., 1889, 398; 47 O. G., 398; 130 U. S., 87; 9 Sup. Ct., 437; Florsheim v. Schilling, C.D., 1890, 560; 53 O.G., 1737; 137 U.S., 64; 11 Sup. Ct., 20.) The improvement of the patent at the most was the mere carrying forward to better results of the original idea embodied in the car structure of 1878, and therefore was not invention. (Smith v. Nichols, 21 Wall., 112, 119; Burt v. Erory, C. D., 1890, 245; 50 O.G., 1294; 133 U. S., 349; 10 Sup. Ct., 394; Belding Manufg. Co. v. Challenge CornPlanter, Co., C. D., 1894, 228; 67 O. G., 141; 152 U. S., 100, 107; 14 Sup. Ct., 492.) If the Brill patent could be sustained, then in view of the prior state of the art the plaintiff would be limited to the precise form and arrangement of parts described and shown in the patent. (Bragg v. Fitch, C. D., 1887, 338; 39 O. G., 829; 121 U. S., 478; 7 Sup. Ct., 978.) Under such a construction of the patent it is questionable whether infringement is shown. The post of the patent is mortised into the sill, whereas the defendants' post is not let into the sill, but fits in a metal socket or cup on the bottom of the panel and is held by arib on the interior of the panel. These differences are slight, it is true; but where the patented improvement itself is so slight there is great force in the suggestion that these differences are sufficent to avoid the charge of infringement. (Bernheim v. Boehme, 20 C. C. A., 31; 73 Fed. Rep., 833; Bragg v. Fitch, supra.) This point, however, was not much discussed, and I express no positive opinion thereon, but place my decision upon the lack of invention. Let a decree be drawn dismissing the bill, with costs. [U. S. Circuit Court-Northern District of Ohio, Eastern Division.] F. E. KOHLER & COMPANY v. GEORGE WORTHINGTON COMPANY, et al. Decided November 6, 1896. 77 O. G., 1938. 1. PLANT-CURRYCOMB-NOT INFRINGED. Letters Patent No. 220,986, granted October 28, 1879, to Paschal Plant, for an improvement in currycombs, Held not infringed by currycombs made under Letters Patent No. 407,313, granted July 16, 1889, to James Dushane. 2. INFRINGEMENT OF PRIOR PATENT-GRANT OF SUBSEQUENT Patent-PresumpTION CREATED THEREBY, The grant of Letters Patent by the United States Patent Office creates a presumption of non-infringement of a prior patent claiming a similar device. (Ney Manufacturing Co. v. Superior Drill Co., C. D., 1893, 475; 64 O. G., 1133; 56 Fed. Rep. 152, cited and approved.) Mr. Charles R. Miller for the complainant. Mr. Wm. H. Doolittle for the defendants. RICKS, J.: The complainant brings this suit on Letters Patent No. 220,986, issued October 28, 1879, to Paschal Plant, for an improvement in currycombs. Complainant alleges that it is the owner of said patent, that the defendants are infringing the same, and it prays for an account and a perpetual injunction. The defendants in their answer claim that they are the assignees of James Dushane, of South Bend, Ind., to whom a patent was issued on July 16, 1889, No. 407,313. It appears from the pleadings and testimony that nearly thirteen years intervened between the grant of the Plant patent and the commencement of this suit. The defendants in their answer allege that no currycombs were in fact ever made under complainant's patent and that they have no plant or establishment for the manufacture and sale of such currycombs. The complainant's own expert admits that he has never seen a comb made as shown and described in said patent. The defendant's expert says: I have never seen any of the Plant currycombs upon the market. The defendants in their answer aver that the alleged improvement of the complainant hath never been applied to any practical use by the patentee or his alleged assignor, and that currycombs embodying the said alleged improvement are not in the market. nor to be obtained; and that said alleged Letters Patent have not been acquiesed in by the public or by the trade, because the said improvements are of no value. The defendants are not manufacturers, but are venders and dealers in hardware supplies, and in this line of business deal in currycombs made under the Dushane patent by the Spring Curry Comb Company, of South Bend, Ind. It is a little significant that no combs were made under the com |