giving the opinion, decided, after a fair contest-for from the record it seems to have been a bona fide contest-that this patent is valid. I make the remark "after a fair contest," because sometimes it has been supposed that a mere decree entered pro forma on the merits is sufficient in itself to require all other United States circuit courts to grant a provisional injunction. Not so. We have held in this circuit that it must have been an honest and not a collusive matter. In a case in the United States Circuit Court of Alabama a matter formerly arose which illustrates my remark.

When one of the most distinguished lawyers of New York was before me he cited a case which was decided in California, and which, on an examination of the record, I found to be a sham case, the decree being obtained by collusion, in order to allow parties who held the patents to put under restraint parties refusing to submit to their demands, and, of course, I considered it of no force. Just so in the Alabama case. was another one of collusion. Perhaps there has been a more remarkable illustration arising out of the milling cases concerning what are known as the "new process" patents. An alleged collusive case arising as to those patents went to the Supreme Court.

It

When one of these matters is presented to the judges of the circuit court they are bound to see whether it was a "consent" or collusive decree, in order to form a basis on which the party obtaining it might go through the country levying tribute. Such is not this case. This is an honest case, has been fully considered, and everything connected with it appears to be a fair and honest contention. In making these remarks I make them in a general way. Here is a case which has been decided after a full and fair contest by parties struggling for their respective interests in the matter.

We come, now, to a consideration of what the patent is. As already stated, the matter in controversy here is as to one of a number of devices to effect a particular end. It is a little remarkable that in this case there is no disclaimer. Ordinarily after the specifications set out the condition of the art, &c., it disclaims certain things. This patent does not.

The patentee divides his claims into five parts. It is alleged that the fourth claim is infringed. Without a model of the drawings those who listen to me could hardly understand the claims of the patent. We find that the principal object was this: That inasmuch as with the old cutting-board, which constantly becomes frayed or chipped when a fishmouth chisel was used, great difficulty and trouble occurred, Mr. Kirby invented an automatic contrivance by which, through (or over) the fishmouth chisel, there would be conveyed little square blocks the diameter of which would be the diameter of the bung desired, with a slide pushing over the mouth of the chisel one block on top of another. But the chisel being fish-mouthed, of course it would be passed into the upper block a short distance, and that block thus answers the ordinary pur

poses of a cutting-board, sliding another on top of that, so that it continued successively to utilize each block and give the bung desired without the loss of any material. He had a very ingenious arrangement for that, and it operated with the whole machine automatically; but that involved a cam, eccentrics, various bars, slots, slides, &c., which it would take too much time to explain, unless I had the model before me. The patentee's claim is described by himself as follows:

1. The chisel or cutter D, with cylindrical cavity, in combination with the plunger C and feeding-bar i, constructed and arranged substantially as described, for the purpose of cutting bung-blanks from separate square blocks of wood.

2. The combination of feeding slide-bar i, feed-box C. guides o o, and spring oʻ, for feeding successively one of a series or pile of bung-blocks forward in exact line with the cutting-edge of the chisel of a bung-machine, operating substantially as described. 3. The cutter D, feeding slide-bar i, and plunger C, so arranged relatively to each other as that the cutter or chisel shall, when cutting, have at least two blocks or blanks in line with its cutting-edge, and that at each stroke of the machine the cutter shall finish cutting one block or blank and enter and partly cut a second blank, instead of cutting a single blank at cach stroke, substantially as and for the purpose herein before described.

4. The cutter and feeding device of a bung-cutting machine, arranged substantially as herein before described, so that each block as it is fed into the machine shall serve a3 a cutting-board for the next preceding block.

5. The use of the hinged bar m in the slot of the sliding feed-bar i, in combination with the vibrating shaft h', whereby, by raising the bar m, the motion of the feed-bar i is suddenly arrested without stopping the motion of the other parts of the machine. The fourth claim is the one which it is alleged the defendant infringes. Now, if the combination for placing one block after another on the fishmouth cutter, whether underneath or sidewise, vertical or longitudinal, so as to operate as a cutting-board through which that fish-mouth may penetrate, is an infringement of this patent, the complainant would be correct. But it is not so. It is a particular way of doing a particular thing. It is a mechanical device wrought out by combinations, which combinations are not in defendant's machine.

To support this motion the complainant, Mr. Kirby, gives a general affidavit, which, on examination, amounts practically to nothing more than his verification of the original bill. On the other hand, we have a description given of what the defendant's operations are. They are not produced by plaintiff's combination of mechanical devices. The consequence is that the motion must be denied.

But it is proper to remark, in this connection, that it is desirable that on these motions for preliminary injunction the court should give no elaborate opinions, because the merits are not fairly before it, and this case illustrates it. We have the opinion of the complainant in the bill that the defendant has infringed his patent; but what does that amount to? He ought to give us what the defendant is doing. It is not for him to assume the functions of the court and swear that his case is as he has averred. He should give the facts to the court and let it determine on those facts whether there is an infringement or not. On the other hand,

we have from the defendant a description of what he is doing, illustrated by drawings.

In this imperfect state of the case, without passing upon the merits, the court decides that there is nothing before it at this stage of the case to show an infringement. That is all the court decides this morning. The motion for a provisional injunction is denied.

[Supreme Court of the United States.]

Decided October Term, 1879.

BAKER v. SELDEN.

17 O. G., 1029.

1. The copyright of a book, if not pirated from other works, will be valid without regard to the novelty of the subject-matter.

2. The description of an art in a book entitled to the benefit of copyright lays no foundation for an exclusive claim to the art itself. The description alone can be protected by copyright. The art can only be secured, if it can be secured at all, by letters patent.

3. A work on the subject of book-keeping, explanatory either of old systems or of an entirely new system, considered as a book conveying information on the subject and containing detailed explanations of the art, is the subject of copyright; but the use of the peculiar systems of book-keeping described cannot be protected thereby.

4. Blank account-books with ruled lives and headings are not the subject of copyright, nor can the copyright of a work on book-keeping with portions illustrated by such ruled lines and headings secure the exclusive right to make, sell, and use account-books prepared upon the plan set forth in such book.

5. Although the proofs show that the defendant makes account-books arranged on substantially the same system as that explained in the copyright book of the plaintiff, it does not appear that he has violated the copyright of the same regarded merely as an explanatory work, and, as the plaintiff is not entitled to an exclusive right in the system, the charge of infringement is not sustained.

APPEAL from the circuit court of the United States for the southern district of Ohio.

Mr. Justice BRADLEY delivered the opinion of the court:

Charles Selden, the testator of the complainant in this case, in the year 1859 took the requisite steps for obtaining a copyright of the book entitled "Selden's Condensed Ledger, or Book-keeping Simplified," the object of which was to exhibit and explain a peculiar system of bookkeeping. In 1860 and 1861 he took the copyright of several other books, containing additions to and improvements upon the said system. The bill of complaint was filed against the defendant Baker for an alleged infringement of these copyrights. The latter, in his answer, denied that Selden was the author or designer of the books, and denied the infringement charged, and contends on the argument that the matter alleged to be infringed is not a lawful subject of copyright.

The parties went into proofs, and the various books of the complainant, as well as those sold and used by the defendant, were exhibited before the examiner, and witnesses were examined on both sides.

The book or series of books of which the complainant claims the copyright consists of an introductory essay explaining the system of bookkeeping referred to, to which are annexed certain forms or blanks, consisting of ruled lines and headings, illustrating the system and showing how it is to be used and carried out in practice. This system effects the same results as book-keeping by double-entry, but, by a peculiar arrangement of columns and headings, presents the entire operation of a day, a week, or a month on a single page or on two pages facing each other in an account-book. The defendant uses a similar plan, so far as results are concerned, but makes a different arrangement of the columns and uses different headings. If the complainant's testator had the exclusive right to the use of the system explained in his book, it would be diffi cult to contend that the defendant does not infringe it, notwithstanding the difference in his form of arrangement; but if it be assumed that the system is open to public use it seems to be equally difficult to contend that the books made and sold by the defendant are a violation of the copyright of the complainant's book considered merely as a book explanatory of the system. Where the truths of a science or the methods of an art are the common property of the whole world any author has the right to express the one or explain and use the other in his own way. As an author, Selden explained the system in a particular way. It may be conceded that Baker makes and uses account-books arranged on substantially the same system; but the proof fails to show that he has violated the copyright of Selden's book, regarding the latter merely as an explanatory work, or that he has infringed Selden's right in any way, unless the latter became entitled to an exclusive right in the system, The evidence of the complainant is principally directed to the object of showing that Baker uses the same system as that which is explained and illustrated in Selden's books. It becomes important, therefore, to determine whether, in obtaining the copyright of his books, he secured the exclusive right to the use of the system or method of book-keeping which the said books are intended to illustrate and explain. It is con. tended that he has secured such exclusive right because no one can use the system without using substantially the same ruled lines and headings which he has appended to his books in illustration of it. In other words, it is contended that the ruled lines and headings given to illustrate the system are a part of the book, and as such are secured by the copyright, and that no one can make or use similar ruled lines and headings, or ruled lines and headings made and arranged on substantially the same system, without violating the copyright; and this is really the question to be decided in this case. Stated in another form, the question is whether the exclusive property in a system of book-keeping can be claimed under the law of copyright by means of a book in which th it

system is explained. The complainant's bill and the case made under it are based on the hypothesis that it can be.

It cannot be pretended, and indeed it is not seriously urged, that the ruled lines of the complainant's account-book can be claimed under any special class of objects, other than books named in the law of copyright existing in 1859. The law then in force was that of 1831, and specified only books, maps, charts, musical compositions, prints, and engravings. An account-book consisting of ruled lines and blank columns cannot be called by any of these names unless by that of a book.

There is no doubt that a work on the subject of book-keeping, though only explanatory of well-known systems, may be the subject of a copyright; but, then, it is claimed only as a book. Such a book may be explanatory either of old systems or of an entirely new system, and, considered as a book, as the work of an author, conveying information on the subject of book-keeping and containing detailed explanations of the art, it may be a very valuable acquisition to the practical knowledge of the community. But there is a clear distinction between the book as such and the art which it is intended to illustrate. The mere statement of the proposition is so evident that it requires hardly any argument to support it. The same distinction may be predicated of every other art as well as that of book-keeping. A treatise on the composition and use of medicines, be they old or new, on the construction and use of plows or watches or churns, or on the mixture and application of colors for painting or dyeing, or on the mode of drawing lines to produce the effect of perspective, would be the subject of copyright, but no one would contend that the copyright of the treatise would give the exclusive right to the art or manufacture described therein. The copyright of the book, if not pirated from other works, would be valid without regard to the novelty or want of novelty of its subject-matter. The novelty of the art or thing described or explained has nothing to do with the validity of the copyright. To give to the author of a book an exclusive property in the art described therein, when no examination of its novelty has ever been officially made, would be a surprise and a fraud upon the public. That is the province of letters patent, not of copyright. The claim to an invention or discovery of an art or manufacture must be subjected to the examination of the Patent Office before an exclusive right therein can be obtained, and it can only be secured by a patent from the gov ernment.

The difference between the two things, letters patent and copyright, may be illustrated by reference to the subjects just enumerated. Take the case of medicines. Certain mixtures are found to be of great value in the healing art. If the discoverer writes and publishes a book on the subject (as regular physicians generally do), he gains no exclusive right to the manufacture and sale of the medicine; he gives that to the public. If he desires to acquire such exclusive right, he must obtain a patent for the mixture as a new art, manufacture, or composition of matter. He