By means of this process the corrugations in the tubing were so crimped or folded together at the ends as to cause the tubing to conform to the shape of said dies. There was no shortening or thickening or thinning of the metal itself. The material remained of the same thickness. The changes in size and shape of the article were due solely to the expansion and contraction of the folds of the corrugations.

The specification of the patent in suit describes a process for converting seamless metal tubing into spheroidal bodies by first forming thin sheet metal into a tube and then subjecting it to end wise compression with dies having the form of the body to be made. The patentee states that this process is based upon his discovery

that comparatively thin tubes of large diameter can be swaged and upset into spheroidal form by dies, and that the metal can thereby be upset without crimping to receive the desired forms.

All the drawings which concern the claim in suit show either tubing or spheroids with plain surfaces.

In his original application for a process patent the applicant said:

*

I am aware that the folding together of the ends of sections of corrugated tubing for ornamental purposes is not new. But my invention relates to the conversion of seamless plain sections of tubing into hollow ornamental bodies ready for use, etc.

This paragraph was afterward stricken out, and in its place the following paragraph was inserted:

Having described my improved process of forming hollow spheroidal bodies, I would state that I am aware that very small articles like beads have heretofore been shaped by compressing the ends only of tubular sections into a rounded form without shaping the periphery thereof, the tube being comparatively thick in relation to size of the article to be formed, so that sufficient body is provided in the tube to prevent crimping or doubling; and I am aware that larger hollow articles have been swaged into more or less rounded form from comparatively thin tubular metal by first casting a thick temporary lining of soft metal into the tube to give body thereto, and then shaping in one or more sets of rounded dies; but my invention differs from the former in making bodies of any desired size without using tubing of a thickness increased as the diameter is enlarged, and also in not only swaging and upsetting the ends of the tube into a smaller diameter, but also enlarging the diameter of the middle part thereof, and it differs from the latter most essentially in not employing lining of soft metal or any other material, and it differs from both in that, whereas in those cases there is only a changing of the shape of the tube, there is no upsetting of the metal, making it thinner in some parts and in others thicker. My process does thus greatly change the thickness of the metal in different places, and, so far as I am aware, I am the first to discover that comparatively thin tubes of large diameter can be swaged and upset into spheroidal form by dies, and that the metal can thereby be upset without crimping to receive the desired forms.

It seems manifest from these various statements of the patentee that he thereby limited himself to a swaging or upsetting process which does not embrace the process used by defendants. Of course he is not estopped by the original disclaimer, which was afterward stricken out; but, as is forcibly urged by counsel for defendants, said language— is a distinct statement upon the record of the facts as he knew them to exist, and although the statement never became a part of the patent, it nevertheless discloses the inventor's conception of the true nature of his invention, and what was new and what was old.

In the patent itself the patentee says:

My process does thus greatly change the thickness of the metal in different places— by swaging and upsetting the metal, and differs from the prior art, where

there is only a changing of the shape of the tube, there is no upsetting of the metal, making it thinner in some parts and in others thicker.

And he claims to be the first discoverer of this capacity of such metal tubes to be thus "upset without crimping," and shows in his drawings only plain tubes as the ones possessing such capacity.

Inasmuch as defendants' process is applied only to corrugated tubes, and changes the shape of such tubes solely by folding or unfolding the corrugations therein, and does not upset the metal or make it thicker in some parts and thinner in others, in which respects it differs from the alleged discovery of the patentee, as described by him and differentiated from the prior art, there is no infringement.

Let the bill be dismissed.

[U. S. Circuit Court-Eastern District of Wisconsin.]

TRAVERS v. GEM HAMMOCK AND FLY NET COMPANY.

Decided March 2, 1896.

75 O. G., 678.

ROOD-ART OF MAKING HAMMOCKS-MECHANICAL OPERATION-INVALID. Letters Patent No. 296,460, granted April 8, 1884, to A. O. Rood, for an improvement in the art of making hammocks, cover merely mechanical operations without any chemical action or the operation of natural elements, and are therefore invalid. (Risdon I. & L. Works v. Medart, C. D., 1895, 330; 71 O. G., 751; 158 U. S., 68, and Wells Glass Co. v. Henderson, C. D., 1895, 462; 72 O. G., 285; 67 Fed. Rep., 935.)

Messrs. Briesen & Knauth for the complainant.

Messrs. Benedict & Morsell for the defendant.

STATEMENT OF THE CASE.

The patent to which the demurrer relates is No. 296,460, granted April 8, 1884, to Albert O. Rood, assignor to Vincent P. Travers, the complainant, for an improvement in the art of making hammocks. Figures 4, 5, and 6 of the drawings accompanying the patent are diagrams showing different stages of progress in the manufacture of the hammock ends, and Fig. 3 is a top view of a hammock having one of its ends finished and the other in process of construction. The specification states:

This invention has for its object to simplify the mode of constructing hammocks, and particularly the ends thereof, which are the parts of hammocks containing the converging threads and the suspension eyes or loops.

The invention consists, principally, in forming the hammock-body with loops in the ends thereof in any known manner; in then forming each end of the hammock by drawing a cord, from which the converging strands are to be made, through the loops at the ends of the hammock-body in a straight line, and in then drawing this thread from between said loops, forming of it the converging strands of the hammock end and finally uniting these strands into a terminal eye, all as hereinafter more fully described and claimed.

The two claims of the patent read as follows:

1. The art of making hammocks which consists in forming the hammock-body with loops b b in the ends thereof in any known manner, then forming each end of the hammock by drawing the cord E, from which the hammock end is to be made, in a straight line through the end loops b b of the hammock-body, and in then drawing said cord from between said end loops b b, forming of it the converging strands of the hammock end and in finally uniting these strands into a terminal eye, i, substantially as herein shown and described.

2. The art of making hammocks which consists in forming the hammock-body with loops b b in the ends thereof in any known manner, then forming each end of the hammock by drawing the cord E in a straight line through the loops b b that are at the ends of the hammock-body D, in then drawing this cord out from between the end loops b and holding it temporarily, in then coiling or winding the outer part of this cord, and in then forming from this coiled or wound portion the eye i at the end of the hammock, substantially as herein shown and described.

SEAMAN, J.:

The bill of complaint alleges infringement, respectively, of two Letters Patent-viz., first, No. 277,161, issued May 8, 1883, and, second, No. 296,460, issued April 8, 1884. Demurrer is interposed to so much of the bill as relates to the latter patent, No. 296,460, on the ground that the patent is for a process and is void upon its face.

This patent contains two claims of similar nature and each stated as for "the art of making hammocks." I think each clearly states a process under the definitions of the patent law, that it involves merely mechanical operations without any chemical action or the operation of natural elements, and that therefore the process is not patentable

under the rule held in Risdon I. & L. Works v. Medart (C. D., 1895, 330; 71 O. G., 751; 158 U. S., 68) and Wells Glass Co. v. Henderson, (C. D., 1895, 462; 72 O. G., 285; 67 Fed. Rep., 935.)

The question is clearly presented upon the fact of this patent, and it does not seem to me that aid can be furnished by extraneous or expert testimony. Therefore it is well raised by demurrer and will thus reach a final determination in the best method for all concerned.

The demurrer is sustained.

[U. S. Circuit Court of Appeals-Sixth Circuit.]

AMERICAN FIBRE CHAMOIS COMPANY v. BUCKSKIN FIBRE COMAMERICAN FIBRE CHAMOIS COMPANY v. WILLIAMAMERICAN FIBRE CHAMOIS COMPANY v. MUELLER

PANY et al.

SON et al. et al.

Decided February 10, 1896.

75 O. G., 833.

1. SCOTT-MANUFACTURE OF FLEXIBLE PAPER-VOID.

Letters Patent No. 216,108, granted June 3, 1879, to T. Seymour Scott, for an improvement in the manufacture of flexible paper, are void for want of patentable novelty.

2. APPEAL-ASSIGNMENT OF ERROR-FAILURE TO MAKE ARGUMENT.

Where counsel for an appellant or a plaintiff in error files a brief and makes an oral argument and does not allude in either to one or more of his assignments of error, he must be taken to have waived them. The court cannot be expected to examine the assignment of error and find the reason for reversal itself. 3. MCLAUCHLIN-MANUFACTURE OF IMITATION CHAMOIS FROM PAPER-PULP— DOUBTFUL PATENTABILITY-DEMURRER-JUDICIAL NOTICE OF MATTERS OF COMMON Knowledge.

The patentability of the claims of Letters Patent No. 511,789, granted to John C. McLauchlin January 2, 1894, for improvements in the manufacture of imitation dressed chamois buckskin from paper-pulp in sheets, was sufficiently doubtful to require the overruling of a demurrer that upon the specification of the patent the court was able to declare, in view of matters of common knowledge of which the court could take judicial notice, that there was no patentable novelty or invention shown in the patent.

4. PATENTABILITY-VALIDITY OF PATENT ON ITS FACE-JUDICIAL NOTICE OF MATTERS OF COMMON Knowledge.

In considering the question of the validity of a patent on its face the court may take judicial notice of facts of common and general knowledge tending to show that the device or process patented is old or lacking in invention, and the court may refresh its recollections of what facts were of common knowledge at the time of the application for the patent by reference to printed matter which is known to be reliable and to have been published prior to the application for the patent.

5. MECHANICAL PROCESS-PATENTABILITY.

A process of reducing fibrous sheets to a soft and pliable condition by first moistening and then pounding the sheets while in a moist condition is not a mere mechanical process or an aggregation of functions within the limitation

announced by the Supreme Court in the case of Risdon Iron and Locomotive Works v. Medart, (C. D., 1895, 330; 71 O. G., 751; 158 U. S., 68.) The moistening of the sheets and the treatment in a moistened condition is more or less chemical in its character.

APPEALS from the Circuit Court of the United States for the Eastern Division of the Northern District of Ohio.

Mr. Laurence Maxwell, Jr., Mr. M. B. Philipp, and Mr. M. H. Phelps for the appellants.

Mr. M. D. Leggett, Mr. A. E. Lynch, and Mr. John P. Corrothers for the appellees.

STATEMENT OF THE CASE.

These are six suits in equity brought to enjoin the infringement of patent-rights by the same complainant. Three of them, Nos. 332, 333, and 336, were brought against three different defendants to restrain the infringement of United States Letters Patent No. 511,789, issued to John C. McLauchlin January 2, 1894, for new and useful improvements for the manufacture of imitation dressed chamois buckskin from paper-pulp in sheets. The defendants in each of these cases filed answers. No replications were filed by the complainant, and the defendants made motions to dismiss the bills on that account. Thereupon the complainant appeared and moved to dismiss the bills without prejudice on the ground that, having acquired another patent, it wished to include both in the same actions against the defendants and proposed the dismissal without prejudice in order to unite the patents in a new bill. To this motion the defendants objected, asked leave to withdraw their answers and to file demurrers to the original bills. This leave was granted to defendants, the demurrers were filed and, after argument, were sustained by the court on the ground that upon the specifications of the patents the court was able to declare, in view of the matters of common knowledge of which it could take judicial notice, that there was no patentable novelty or invention shown in either patent. Notwithstanding the action of the court in refusing to dismiss, the same complainant filed three new bills, Nos. 334, 335, and 337, for an injunction against the same defendants, respectively, in which it charged the defendants with the infringement of both the McLauchlin patent and of a patent to T. Seymour Scott, No. 216,108, dated June 3, 1879, for an improvement in the manufacture of flexible paper, which the complainant had since acquired by assignment. To these bills demurrers were filed on the ground that both the McLauch lin and the Scott patents were void for want of patentable novelty. These demurrers were sustained and decrees entered dismissing the bills. Appeals have been taken from all six decrees and they have been heard as one case in this court. The specification of the Scott patent, which was applied for February 8, 1879, was as follows: