Petition for Rehearing.

and purpose is the same, namely, the housing and storage of grain in great quantities for indefinite periods of time.

"Now, the object of Mr. Richards' invention is to entirely obviate and do away with elevators, and the adoption of the invention of Mr. Richards' patent would mean the conversion of every elevator in this country to other and different commercial purposes. There can be no better practical illustration of the truth of this statement, than to call the attention of this court to the fact, which we think the court will take judicial notice of from simply travelling upon the lines of two of the principal railroad defendants in these cases, in late years, namely, the Michigan Central Railroad Company and the Chicago Grand Trunk Railroad Company. Both of these roads have 'elevators' of all sizes and capacities in connection with and along the lines of their main track and branches. 'Elevators' on the banks of lakes, elevators' on the banks of rivers, elevators' on the banks of canals, yet neither of these defendant roads will or can use such elevators 'for transferring and weighing grains without mixing the different lots or loads with each other, thus preserving the identity of each lot while it is being transferred from one car to another.' And both of these defendants will let their elevators' lie idle and vacant and will build alongside of them the cheap and simple device of Richards' patent, for transferring their grain from one car to another without storage and without mixing, etc.

"This court says: We do not feel compelled to shut our eyes to a fact so well known as that elevators have, for many years, been used for transferring grain from railway cars to vessels lying alongside, and that this method involves the use of a railway track, entering a fixed or stationary building; an elevator apparatus; elevator hopper scales for weighing the grain; and a discharge spout for discharging the grain into the vessel.'

"While it may be true that in some part of an 'elevator' building all of the above may be found with no suggestion or capacity of utilization, as described by Richards, we most earnestly contend that the court should not also shut its eyes to the fact that no elevator ever constructed in this country

Petition for Rehearing.

was ever used or adapted or could be used or adapted for continuous and automatic transfer of grain from one car to another, weighing the grain in transitu and preserving the identity of each lot of grain in such transfer.

We

"There is not the slightest capacity in the grain transferring and weighing devices of Richards for any housing or storage capacity. That element has been entirely eradicated by the employment of the Richards devices and intentionally so. believe that this whole confusion of the Richards invention at stake with elevators, arises from the fact of the illustrative drawings which Mr. Richards' solicitor saw fit to employ in setting forth Mr. Richards' invention.

'Figure 1 of said drawings furnishes grounds of suggestion of the elevator characteristic,' but it will be readily seen, even by reference to figure 1, that such drawing simply discloses a covered framework for weather protection in the employment of the transferring apparatus of Richards from one car to another. There is no possible opportunity of storage or warehouse purposes present in such drawings, as the hopper H is merely a unit part of the hopper scales and serves its only purpose in retaining the grain on the scales until the desired weight is registered. This whole question of elevator identity' was raised in the Patent Office, and that office, upon an investigation of the facts, at once recognized the distinction between every and all classes of elevators in this country and the Richards invention, and passed the patent to grant, and all we ask in this case, is that this great court will not itself decide these mechanical questions and the question of mechanical effects, upon a recollection of devices, wherein there is opportunity for mistake and an equal opportunity of making certain disputed questions by testimony in relation to which there can be no mistake.

"Take, for example, where this court finds that in the elevators' of this country there can be found 'hopper scales for weighing grain.' This court certainly cannot take judicial notice of the fact, for such fact never exists, that grain is taken from one car and delivered directly to these hopper scales for any purpose whatever; much less for automatically weighing

Petition for Rehearing.

the grain by such scales and delivering such grain without deposit in the elevator to a companion car for continuous transferring.

"Take, for example again, the quoted reference of the judicial knowledge of this court as to a discharge spout. This court cannot certainly take judicial notice that there has ever existed in any elevator construction a spout connected with hopper scales, wherein grain is weighed by such scales and delivered continuously and instantly therefrom to an awaiting railroad car. To make our position more apparent, supposing Mr. Richards, in the drawings of his patent, had not disclosed the skeleton framework of the building for supporting his transferring and weighing mechanism, but had simply disclosed the means for effecting such transfer, and his claim had read as follows: 'What I claim as new and desire to secure by letters patent is: In combination with two oppositely facing railroad tracks and cars, means for continuously receiving ard elevating the grain of one car into elevated hopper scales, means for automatically weighing and registering such elevated grain by such hopper scales, and means for discharging such elevated grain, so weighed, and registered into said oppositely facing railroad car, continuously by one opera

tion.'

"Could there have been any contention that this invention so stated, would be met by any elevator or warehouse in this country, and of which this court could take judicial notice? Yet the above represents the actual invention of Mr. Richards, and we most earnestly contend that the awkward and inartistic description of his invention by such statement of his specification, as associates and connects such invention in the mind of the court with a supposed elevator building, should not stand to the destruction of his patent and invention, without any opportunity given him by a trial and day in court to demonstrate and convince this court of the correctness of his contentions.

"II. The second ground of contention upon which we base this petition for rehearing resides in the statement of Mr. Justice Brown that Not a new function or result is sug

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gested by the combination in question.' Most earnestly and emphatically do we take issue with this statement.

"We again state in italics, Mr. Richards' statement of invention as taken from his patent: The purpose of my invention is to provide improved means for transferring and weighing grain without mixing the different lots or loads with each other, thus preserving the identity of each lot, while it is being transferred from one car to another.'

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Every function and result of this means and apparatus is new. What was the new function or result suggested by the combination in question? Briefly stated, such new function and result of Richards' combination, was its continuous transfer by the mechanical means described of a carload or lot of grain from one car to another, weighing the grain in its travel, so that when the grain was lodged in a desired car by a continuous operation its identity had been preserved and its weight actually ascertained. No such function or result in any kind of a combination had ever existed in this country, as can be shown, absolutely, by unassailable testimony, if the opportunity is given, and nothing can be more clearly demonstrated if such opportunity is given, that in no elevator,' warehouse or store in this country was such function or result known or capable of employment. In every elevator that exists or ever existed in this country, as can be demonstrated, and proven if the opportunity is offered, it is simply impossible to transfer and weigh the grain without mixing the different lots or loads with each other, and it was and is simply impossible to preserve the identity of one lot or load one from the other in any elevator ever constructed, or to continuously transfer one carload of grain to another, weighing the grain as a part of such transfer, and no contention has ever been made that such function or result could be accomplished in any elevator in this country. The Lake Shore and Michigan Southern Railroad Company paid the patentee Richards more than $100,000 for employing this new function and result, that railroad having elevators galore along the sides of their track at the time they made such payment, and incurred its obligation. Is it too much to ask at the

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hands of this court an opportunity to prove the correctness of this statement, that the function and result of this combina tion is new, especially as the government has so decided and given Richards his grant here in contest therefor?

"We fail to appreciate the relevancy of the suggested parallelism between Mr. Richards' invention of means for transferring and weighing grain without mixing different lots;' and the conditions set forth in the opinion of Mr. Justice Brown. "Take, for example, the statement of the opinion as follows: Suppose, for instance, it were old to run a railroad track into a station or depot for the reception and discharge of passengers, it certainly would not be patentable to locate such stations between two railroad tracks for the reception of passengers on both sides, and to add to the accommodation a ticket office, a newspaper stand, a restaurant, and cigar stand, or the thousand and one things that are found in buildings of that character. It might as well be claimed that the man who first introduced an elevator into a private house, it having been previously used in public buildings, was entitled to a patent for a new combination. What connection have these conditions to do with Mr. Richards' invention when analyzed and applied?

"A fair illustration of the value of Mr. Richards' inventions using the conditions set forth in the above quotation from the opinion can be illustrated as follows: Supposing Mr. Richards had invented an improved means by which the railroad depots and stations for the reception and housing of passengers could be done away with in this country, and the passengers in the different cars, first and second class, and parlor cars, could be transferred to their respective associate and companion cars upon oppositely facing tracks without delay and harmoniously and continuously by mechanical devices without any effort, danger or responsibility upon the part of the passengers themselves, would not the doing away with the passenger stations and depots of this country and the mechanical transferring of passengers from one car to another be an invention of a high order, the principal element of which would have been the avoidance of expense, and delay attendant to the erection,