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a patented device is made and sold and finds an extensive market and supplies a long-felt want and supplants all other devices of a like nature are evidence on the question of patentability, when want of patentable invention is the issue; but the mere fact that it is a paper patent, conceding it to be valid, is no evidence of noninfringement. The defendant presses attention to Hillard's prior patent No. 554,874, and to this I have already referred. It also invites attention to the Cash patent, No. 717,347. The defendant contends that Hillard has admitted that the Cash specification described and claimed an ordinary escapement. A reference to the record demonstrates that this is error. Hillard's testimony is to the effect that the original specifications of the Cash patent described a reversed escapement, and that Cash sought by amendment to substitute an ordinary escapement. Hillard said:
"The escapement described and claimed in the amended specification is an escapement absolutely, entirely, and fundamentally different from the escapement originally shown and described by Cash in his original specification."
Again, he testified, as shown by the interference record:
"Since Cash filed his original application, he has entirely reversed the de scription of his invention, so that, where he originally disclosed what is now known in the art as a 'reversed escapement,' he now discloses what is known in the art as a 'regular escapement.'"
Mr. Hillard was asked whether the Cash patent showed the invention in suit, and he answered emphatically, “It does not,” and he gave his reasons why not. Without going into detail, I am satisfied that his reasons are satisfactory and quite conclusive.
The complainant charges infringement of the claims in suit by the use and sale of typewriting machines made in accordance with patent No. 573,868, dated December 29, 1896, and issued to Robert J. Fisher, except in one particular, viz., that the escapement of the patented machine was changed from a simple escapement, the function of which is to control the motion of the power-driven carriage, to an escapement which had the additional function of communicating the power of the mainspring immediately after the printing took place—that is, after the key had been depressed and released—to re-engage the members of the escapement, and to restore the finger-key and type-bar to normal position. It is conceded that the result of this change was to make the machine described in the Fisher patent an infringement, where otherwise it was not. This change was made after the defendant began manufacturing his machine, and after Hillard had introduced his improvement into the Remington machine, and it had been adopted by the Remington Company, and after he had granted a license to the Brooks Company, and these two companies had put the improvement into public use, and its value had been disclosed. The defendant's machine belongs to the class of book typewriters. Perhaps the similarity of the defendant's machine with that of the patent in suit is best described hy quoting from the evidence of Mr. Dorsey, one of complainant's witnesses. He says:
"In the machine described in the patent in suit, as well as in defendant's machine, is found a two-part structure, one of which parts comprises a carriage movable in respect to the other under the influence of a carriage-propelling power; an escapement for controlling the speed of the carriage under the power, and comprising a rack-member and a dog-member wbich may be disengaged (as shown in 'Illustrative Drawings of Patent in Suit, Disengaged Position,' and in 'Sectional View of Defendant's Machine, Longitudinal Section, Disengaged Position'), and re-engaged (shown in Illustrative Drawing of Patent in Suit, Engaged Position,' and in 'Sectional View of Defendant's Machine, Longitudinal Section, Engaged Position'); a printing mechanism consisting of a type-bar and a type carried thereon; a key, properly connected to the printing mechanism to cause the latter to print; and a connection between the key and the dog-member of the escapement for disengaging the members of the escapement. In both machines, when the escapement is in its disengaged position, the pull of the carriage-propelling power is transmitted to the spacing-dog of the escapement and tends to force the same out of engagement with the rack-member and to restore the engagement of the detaining-dog with the rack-member, thus restoring the escapement to normal position, or, in the language of the patent in suit, ‘re-engaging the normally engaged dog with the rack' (lines 41, 42, page 12). As in both the defendant's machine and the machine of the patent the printing mechanism (i. e., the type-bars) is connected to the escapement through the universal bar, key-levers, and connecting wires, the movement of the escapement will be communicated to the printing mechanism wbich will be thus returned to normal position, in both cases the pull of the mainspring being exerted on the printing member while the latter is still at the printing point, so that the pull of the mainspring starts the typebar back to normal position, and in both machines the spacing-dog in moving out of engagement with a tooth of the rack-member moves in a direction oblique to the direction of movement of that tooth in spacing, and in both machines it is during this movement that the carriage-propelling power acts to restore the parts. In both machines, moreover, the return of the escapement to normal position is aided by the escapement retracting spring, marked be in the 'Illustrative Drawing of Patent in Suit,' and as 13a in the 'Sectional View of Defendant's Machine, Longitudinal Section.'”
I think infringement is made out.
It would serve no good purpose to describe the numerous typewriters claimed to show anticipation. I have examined them all, and on the question of prior use I have carefully examined the Hammond typewriter. In no one of the selected 11 cited as anticipations do we find any reference whatever to the invention disclosed in the patent in suit. A leading expert on the part of the defendant says on this question:
"The patents I have referred to make no reference to the effect of the carriage-propelling power upon the finger-key to raise it from its lowest position; nor to the effect of said power or mainspring in re-engaging the escapement members."
The truth is that, until Hillard made his invention, and later, embodied it in the Remington machine, the value of the principle of that invention was not realized or recognized. The principle of his invention is:
"The utilization of the carriage-propelling power for the re-engagement of the members of the escapement and the return of the key and type-bar to normal position synchronously with the feed of the carriage.”
Hillard discovered it, Hillard devised means for utilizing it, and Hillard, having embodied it in a machine, put it into practical operation. Quite likely it was more or less involved in many of the prior machines.
I think the following cases are pertinent in this connection: Tilghman v. Proctor, 102 U. S. 711, 26 L. Ed. 279; Andrews v. Carman, 13 Blatchf. 323, Fed. Cas. No. 371; Pittsburg Reduction Co. v. Cowles, etc., Co. (C. C.) 55 Fed. 307; Chase v. Fillebrown (C. C.) 58 Fed. 377; Clough v. Barker, 106 U. S. 175–176, 1 Sup. Ct. 188, 27 L. Ed. 134; Am. Sewage Co. v. Pawtucket, 138 Fed. 823, 71 C. C. A. 177.
In Tilghman v. Proctor, supra, the court said:
"We do not regard the accidental formation of fat acid in Perkin's steam cylinder from the tallow introduced to lubricate the piston (if the scum which rose on the water issuing from the ejection pipe was fat acid) as of any consequence in this inquiry. What the process was by which it was generated or formed was never fully understood. Those engaged in the art of making candles, or in any other art in which fat acids are desirable, certainly never derived the least hint from this accidental phenomenon in regard to any practicable process for manufacturing such acids."
"The accidental effects produced in Daniell's water barometer and in Walther's process for purifying fats and oils preparatory to soap-making are of the same character. They revealed no process for the manufacture of fat acids. If the acids were accidentally and unwittingly produced, whilst the operators were in pursuit of other and different results, without exciting at. tention, and without its even being known what was done or how it had been done, it would be absurd to say that this was an anticipation of Tilghman's discovery."
In Andrews v. Carman, supra, it was said: "A chance operation of a principle, unrecognized by any one at the time, and from which no information of its existence, and no knowledge of a method of its employment, is derived by any one, if proved to have occurred, will not be sufficient to defeat the claim of him who first discovers the principle, and, by putting it to a practical and intelligent use, first makes it available to man."
In Pittsburg Reduction Co. v. Cowles, supra, Judge Taft said: "But, suppose it to be a fact that in De Ville's process alumina was dissolved in the bath from the anode, and that thereupon it was electrolyzed as in the Hall process, it was a mere accident, of which De Ville made no note, and which therefore, we may reasonably infer, he did not observe. Accidents of this character cannot be relied on as anticipations of a patented process, when the operator does not recognize the means by which the accidental result is accomplished, and does not thereafter consciously and purposely adopt such means as a process for reaching the result.”
I think the complainant entitled to a liberal application of the doctrine of equivalents. I find nothing either in the Patent Office records or in the patent itself that limits the claims to the precise mechanical means described in the specifications.
The result is that I hold the claims in suit valid, not anticipated, and infringed by defendant. There will be a decree for an injunction as demanded, and an accounting, with costs.
AMERICAN SULPHITE PULP CO. v. DE GRASSE PAPER CO.
(Circuit Court, N. D. New York. February 12, 1907.) PATENTS-INVENTION-\VooD PULP DIGESTERS.
The Russell reissue patent, No. 11,282 (original No. 445,235), for an improvement in wood pulp digesters which consists in applying to the inner surface of the metal shell of such a digester a continuous lining or coat of adhesive acid-resisting material applied in a plastic condition to protect the shell from injury by the acid solution used in such digesters is void for lack of patentable invention, in view of the prior art, which disclosed a similar cement lining employed for the same purpose in open vessels used for heating acid solutions, all that is claimed by the patentee being the discovery tbat it is equally effective under the increased heat and pressure to which it is subjected in pulp digesters, which discovery did not constitute invention. Claim 1, conceding its validity, held not infringed. Suit in equity to restrain alleged infringement of United States letters patent No. 11,282, dated November 15, 1892, for pulp-digester, and issued to complainant, American, Sulphite Pulp Company, as assignee of George F. Russell, who filed his application for reissue June 24, 1892.
Howard P. Denison (Frank T. Benner, of counsel), for complainant.
W. B. Van Allen (J. P. Allds and Henry R. Follett, of counsel), for defendant.
RAY, District Judge. This alleged invention relates, as alleged in the specifications, to improvements in the construction of the vessels ordinarily called "digesters,” in which wood pulp is manufactured by what is known as the “sulphite process.” The patentee declares the object to be "to improve the construction of these digesters so as to prevent their injury by the solution employed.” In short, the purpose and object of the alleged improvement in construction is to prevent injury to the digester itself by the solution employed in digesting the pulp contained therein. In other words, to prevent injurious action by the solutions on the walls of the digester.
An analysis of the alleged invention shows as follows: (1) A cylindrical outer shell, ordinarily constructed of metal, such as iron, steel, or brass, and which metals are, says the patent, liable to be injuriously affected by the acid solution employed in digesting the pulp; (2) a continuous lining or coat of acid-resisting material, on the interior surface of this shell, which is to be applied in a plastic condition; and (3) that this lining or coat is of the nature of a cement, and may be composed of any material, or mixture of materials, which are acidresisting and capable of being made plastic and adhesive to the shell of the digester and so compact as to prevent the acid solution from reaching the iron shell in consequence of, or because of, the high steampressure required when the digester is in operation. The patentee says that a convenient material for this interior lining or coat is commercial cement, preferably Portland, made plastic with water, and applied with any suitable implement on the interior of the shell, so as
to form a continuous covering therefor. The specifications then suggest materials other than Portland cement for this lining, but “the long and short of it is” that a plastic material is to be used and it must be so applied as to form a continuous coating, which may vary in thickness; but the coating must be of some plastic and also acid-resisting material, capable of being made, of itself, adhesive to the shell, and also so compact, of itself, when applied by a trowel or similar means, and by that means "compacted,” as to prevent the acid solution from reaching the metal shell. The specifications then state that, under some circumstances, it will be found in practice that the friction of the mass of pulp within the digester is liable to wear away the abovedescribed lining. It is then stated that this objectionable feature may be remedied by setting an inner lining of tiles upon the "continuous lining" of cement "the plasticity and adhesiveness of which may be utilized to hold the tiles in place.” Also, “In many cases, however, the use of this inner lining of tiles will not be found necessary.”'
All these matters referred to are stated in the patent in the following language:
"My invention relates to improvements in the construction of the vessels ordinarily called 'digesters,' in which wood pulp is manufactured by what is known as the 'sulphite process.' Its object is to improve the construction of these digesters so as to prevent their injury by the solution employed. A, represents the outer shell of the digester. It is ordinarily constructed of metal-such as iron, steel, or brasswhich is liable to be injuriously affected by the acid solution employed. Upon the interior of the shell of the digester, I form a continuous lining or coat, B, of acid-resisting material, applied in a plastic condition. This lining or coat is of the nature of a cement, and may be composed of any material or mixture of materials which is acid-resisting and capable of being made plastic and adhesive to the shell of the digester and so compact as to prevent the acid solution from reaching the iron shell in consequence of the high steam-pressure required in practice. A convenient material for the purpose is commercial cement, preferably Portland, made plastic with water and applied with any suitable implement upon the interior of the digester-shell, so as to form a continuous covering therefor. Other cementlike materials or mixtures having similar properties or characteristics may be used, such as the ordinary ceinent mixtures, sand, and Portland cement, sand, and tar, and the like. The thickness of the cement lining when compacted as it is by laying on with a trowel will vary more or less according to the different materials used. In practice, I find that with a lining composed of sand and Portland cement a layer of from three to five inches suffices to prevent the acid from reaching the metal shell. Under some circumstances, it will be found to practice that the friction of the mass of pulp within the digester, particularly when of the rotary pattern. is likely to mechanically wear away the lining constructed as described. This objectionable feature my be remplied by setting an inner lining. C, of tiles upon the continuous lining, B, the plasticity and adhesiveness of which may he utilized to hold the tiles in place. In many cases, however, the use of this inner lining of tiles will not be found necessary."
It is self-evident that the improvement which is the subject of the patent is the use on the interior of the metal shell of “a continuous lining or coat of acid-resisting material applied in a plastic condition," and that this coating or lining must be composed of substances capable of being made plastic and adhesive before application to the shell. The object or purpose to be accomplished was, therefore, to prevent the acid solution from reaching, or coming in contact with, the shell