[64] [65] "The first claim of the original patent is for 'The step E, made substantially as described, and for the purpose set forth.' The corresponding claim in the reissue is for 'The step, combined with the wrench-bar, and supported by the nut F, or its equivalent, at the place where the step is connected with the bar, in such manner that the step can be removed from the bar without cutting or abrasion of parts.' On the 9th of August, 1880, the Collins Com- | states that it may be, screwed up firmly against The defendants contend that the patent in suit did not disclose a patentable invention in view of the prior state of the art; that the reissue described and claimed a different invention from that for which the original patent was granted; that the reissue was taken too long after the date of the original patent to be permitted upon equitable grounds; and that there was no infringement. The circuit court originally granted an interlocutory decree in favor of the plaintiff in accordance with the opinion of Judge Lowell, reported in 5 Bann. & Ard. 548, and 3 Fed. Rep. 225. But a rehearing was afterwards moved for and granted, the interlocutory decree, vacated and the bill dismissed, for the reasons, stated in the opinion of Mr. Justice Gray, presiding in the circuit, in a similar suit by the plaintiff against other defendants, which opinion was as follows: "This is a bill in equity for the infringement of the first claim in the specification of the second reissue to the complainant, dated February 25, 1873, of letters patent originally issued to Lucius Jordan and Leander E. Smith, on October 10, 1865, for an improvement in wrenches. "The wrench, as described, both in the original patent and in the reissue, has the following parts: The wrench-bar A, the upper part of which is of the usual shape, and has attached to it the movable jaw B, and the lower part of which is of convenient form to receive upon it the wooden handle; a screwrod, C, parallel to the main bar; a rosette, D, at the lower end of the screw-rod, by means of which the movable jaw is worked; a ferrule or step, E, having a hole through it for the admission of the bar, and a recess in its upper face as a bearing for the lower end of the screw-rod; a nut, F, screwed on a thread in the bar, under the step, and having a recess in its under face to receive the top of the wooden handle, G; and the wooden handle secured at its lower end to the main bar by a nut in the usual way. "Both the original patent and the reissue state that the object of the invention is to make the strain come upon the nut F instead of coming upon the wooden handle. The original patent states that the nut F is, and the reissue "The parallel screw-rod, with a rosette thereon to work the movable jaw, and resting upon a ferrule or step, had been introduced in the original Coes wrench, patented in 1841; and, long before the issue of the patent to Jordan & Smith in 1865, large numbers of the Hewitt or Dixie wrench had been made and sold, in which there was no separate screw-rod, and the screw that worked the movable jaw revolved on the main bar, but that screw rested on a ferrule or step, which was secured sometimes by driving it on under heavy pressure and sometimes by a nut screwed under it on the bar. "The application to the bar of the Coes wrench, for the purpose of securing and supporting the step, and resisting the strain, of a nut already in use for the same purpose on the Hewitt or Dixie wrench lacks the novelty of invention requisite to support a patent within the decisions of the supreme court at the last term, which have in effect overruled the earlier decisions of this court in the suit of this complainant against Loring Coes and others, reported in 5 Bann. & Ard. 548. Pa. R. Co. v. Locomotive Engine Safety Truck Co. 110 U. S. 490 [28: 222]; Bussey v. Excelsior Mfg. Co. 110 U. S. 131 [28: 95]; Double Pointed Tack Co. v. Two Rivers Mfg. Co. 109 U. S. 117 [27: 877]; Phillips v. Detroit, 111 U. S. 604 [28: 532]. "The complainant's patent being void for want of novelty, it becomes unnecessary to consider the other defenses. "Bill dismissed with costs." Mr. Wm. Edgar Simonds, for appellant: The reissue claims were not unduly ex- Saladee v. Racine Wagon & C. Co. 27 Pat. Off. Gaz. 1133; Globe Nail Co. v. U. S. Horse Nail Co. 19 Fed. Rep. 819; Hicks v. Otto, 19 Fed. Rep. 749: McArthur v. Brooklyn Railway Supply Co. 19 Fed. Rep. 263: Dunbar v. White, 15 Fed. Rep. 748; Starrett v. Athol Machine Co. 14 Fed. Rep. 910; Holt v. Keeler, 22 Pat. Off. Gaz. 1291; Brainard v. Cramme, 12 Fed. Rep. 621; Eames v. Andrews, 122 U. S. 40 (30: 1064). The patent is prima facie evidence that the patentee was the original and first inventor. Crouch v. Speer, 6 Pat. Off. Gaz. 188; Hawes v. Antisdel, 8 Pat. Off. Gaz. 685; Wood v. Cleve land Rolling Mill Co. 4 Fish. Pat. Cas. 559-60; Parham v. Am. B. O. & Sewing Machine Co. 4 Fish. Pat. Cas. 482; Miller v. Smith, 5 Fed. Rep. 364; Woven Wire Mattress Co. v. Wire Web Bed Co. 8 Fed. Rep. 89-90. [66] [67] Brown Mfg. Co. v. Deere, 21 Fed. Rep. 713; If a new combination and arrangement of It required more than mere mechanical skill | The step, combined with the wrench-bar and to produce what is shown in this patent. supported by the nut F, or its equivalent, at the place where the step is connected with the bar, in such manner that the step can be removed from the bar without cutting or abrasion of parts." The specification says: "On the bar A, just below the step E, is cut the screw thread i, on which screws the nut F, forming a projection from the wrench-bar, on which rests the step E, and thus transmits the back pressure put upon the step directly to the wrench-bar at the place of connection therewith, and thus relieves the wooden handle therefrom, the connection of the step with the bar being made in such manner that the step may be removed or taken off the bar without any cutting or abrasion of parts." Webster Loom Co. v. Higgins, 21 Pat. Off. Mr. George L. Roberts, for appellees: Pa. R. Co. v. Locomotive Engine Safety Truck We concur with the circuit court in its disposition of this case and the grounds upon which it rested its decision. was disclaimed, except when said recessed nut The wrench-bar, the fixed jaw upon its upper It was said in Hailes v. Albany Stove Com- The complainant's qualified disclaimer is an admission that the second claim of the patent is void for want of novelty, which is true, even if the qualification were effectual, since, as we have seen, the screw rod and movable jaw of the patent have no different effect from the screw-sleeve and movable jaw of the prior Dixie wrench, upon the other parts of the combina [68] [69] [87] 88] a ferrule for the top of the wooden handle.' The purpose of supporting the step by the nut F, and fastening the step rigidly to the wrenchbar by means of that nut, is the relief of the wooden handle from the strain of back pressure. In the Dixie wrench the step and nut were made of one and the same piece of metal, thereby fully attaining the object of holding the step-plate rigidly fastened in position. In the Coes wrench the step was rigidly fastened to the bar by being griped between a shoulder above it and upon the bar and the handle below it, which was backed up by the nut screwed upon the lower extremity of the bar. Dispensing with a washer between a nut and that upon which it acts, makes no change in the office of the nut. The action of the nut M of the Coes wrench in griping the step-plate is the same as that of the nut F of the patent. This third claim is also void for want of novelty. The decree of the Circuit Court is affirmed. TALLMADGE E. BROWN, Appt., D. THE DISTRICT OF COLUMBIA. (See 8. C. Reporter's ed. 87-103.) Patent for wood pavement-well known invention-patentable novelty-mechanical skill. 1. A wood pavement, composed of blocks, each side having a single plain surface and one or more of the sides being inclined and the blocks being so laid on their larger ends as to form wedge-shaped grooves or spaces to receive concrete or other suitable filling, was not, in view of the state of the art, patentable April 5, 1870. tion. 2. The formation of wedge-shaped spaces to receive concrete or other filling by laying blocks with one or more inclined sides with their larger ends downwards the filling acting as a key, and the use of wooden blocks in that way, were well known at the time of the alleged invention under considera3. As Cowing's combination simply embraces blocks of the same shape and material and similar filling applied in substantially the same way and producing substantially the same results as in the prior patents referred to in the opinion, it cannot be regarded as possessing patentable novelty. 4. To cut the block so as to get the grain in a particular way and so as to avoid waste, requires simple mechanical skill without involving invention. [No. 137.] Argued Jan. 8, 9, 1889. 1889. Decided March 11, preme Court of the District of Columbia on the 14th day of April, 1880, counting upon three patents alleged to have been infringed by the respondent, namely: Patent No. 101,590, issued to Turner Cowing, April 5, 1870, for "a new mode of constructing wood pavements for streets." The specification and claim are as follows: "The nature of my invention consists in providing and arranging blocks of a peculiar shape in manner to form wedge shaped crevices in such earth or gravel will be retained to act for the reception of earth or gravel, and whereas a key to bind and confine the blocks in their place. with the blocks, complete. Figure 2 represents Figure 1 represents a section of road paved the straight side of a block, with the inclined side at E. Fig. 3 represents the top of a block, and also the section of the base D. Fig. 4 represents the straight side of a block, which is set next to the inclined side of the adjoining block. "In Fig. 1 letter A represents the top of the block, B the side, and E the crevice and gravel. The blocks should, of course, be placed so that the gravel spaces may extend lengthwise across the direction of the street or road, so that, besides wedging and holding the blocks securely, they may furnish a better foothold for animals drawing heavy loads. "In the drawing the front edge of the pavement, as shown, represents the side next the curb or a section parallel to the curb. "It is obvious that the wedge-shaped crevices may also be formed by setting the above described blocks so that two vertical sides and two inclined sides come together alternately, as shown in Fig. 5; and it is equally obvious that two blocks having their vertical sides together may be replaced by a single block having two inclined faces, as shown in Fig. 6, without any material change of plan, and with a considerable saving of labor and expense in the construction. "To construct my pavement, prepare the roadway by grading it to the proper form and ramming solid; then set the blocks as shown in Fig. 1, confining them permanently between the curbs of walks; then fill and ram the crevices with earth and gravel. "I do not claim a wood pavement composed of wedge-shaped blocks, when the blocks are laid alternately on larger and smaller ends, so as to form a continuous surface of wood, but APPEAL from 8. dec of Columbia, in a what I do claim, and desire to secure by letters Court District suit for the infringement of patent No. 101,590, issued to Turner Cowing April 5, 1870, for a new mode of constructing wood pavements in streets, and patent No. 94,062, issued to William W. Ballard and Buren B. Waddell August 24, 1869, for improvements in street pavements and patent No. 94,063, issued to said Ballard and Waddell August 24, 1869, for an improved mode of cutting blocks for street pavements; by which it was decreed that no case of actual infringement was made out as to No. 94,063, and that Nos. 94,062 and 101,590, were void for want of patentable novelty. Affirmed. Statement by Mr. Chief Justice Fuller: Tallmadge E. Brown fled his bill in the Su patent of the United States, is: each side having a single plain surface and one "A wood pavement composed of blocks, or more of the sides being inclined, and the blocks being so laid on their larger ends as to form wedge-shaped grooves or spaces to receive concrete or other suitable filling, substantially as set forth." [89] "Figure 1 is a perspective view of a section of pavement embracing our improvement. Fig. 2, is a perspective view of a piece of tim. [90 [91] ber from which the block is cut and showing | to one and oblique to the other of their beveled To more clearly illustrate our invention we will proceed to describe the construction, etc., referring by letters to the drawings. "A represents the bed of the street, which is made slightly arched, the ends of the arch resting against the curbs B B. Strips C are laid upon said arch at right angles to the curb and at convenient distances apart. Upon said strips is laid a flooring, composed of boards of any desired dimensions, and the blocks are then I laid on this flooring in rows, and so as to break joints. These blocks are of a wedge shape, and are so laid as that their bases shall touch, forming a continuous arch across the street, and leaving V-shaped spaces between the rows. These spaces are filled with concrete or its equivalent, and the whole surface tarred over, if thought necessary. The gutters are formed by inclining the bed slightly upward at the curb and splitting the ends of the blocks off to fit against the curb and the last one of the street blocks. "The peculiarity of the blocks used in this pavement is that they are wedge shaped and having both sides at acute angles with the base and the grain running parallel with one and oblique to the other of these sides. " 'A more perfect description of these blocks and the manner of producing them is given in another pending application, now on file in the United States Patent Office, entitled 'A method of cutting blocks for street pavements,' prepared and executed by us on the 29th day of September, 1868. "2. A wooden street pavement constructed, substantially as hereinbefore described, of wedge shaped blocks with the grain running and produced in the manner and for the purpose set forth." Patent No. 94,063, issued to said Ballard and Waddell, August 24, 1869, for "an improved of which the specification and claim are as folmode of cutting blocks for street pavement," lows: "Figure 1 represents the lumber as the blocks are being cut off in order to give the ends of the blocks the proper angle or bevel. "Fig. 2 represents the blocks after being cut off as above described before splitting. Fig. 3 represents the blocks in the act of being split on a saw table, showing the rest or guide necessary to cut them in the proper direction. Fig. 4 represents the blocks finished and placed in the pavement. "Our invention consists in a novel method of cutting and splitting blocks for wood pavement in such a manner that two cuts, or rather one cut and one splitting, will produce two finished blocks with level top and bottom and two sides beveled, one being with the grain and the other slightly oblique to the grain, without more waste of timber than is occasioned by the saws. "We take a piece of lumber four and a half feet long, twelve inches wide, and seven inches thick. This is placed under the saws, as shown in Fig. 1, in an inclined position, so that the first cut will produce blocks with two "The advantages of blocks having both sides inclined, the top and bottom level or in sides beveled, with the grain running, as de- parallel planes. The first cut produces nine scribed, over the ordinary wedge-shaped block, blocks, such as shown in Fig. 2, out of a piece are first and most important-that only one of lumber, as described above. Each such corner of the base is at all likely to become block will then be twelve inches long, six inches broken off by transportation and rough hand- high with the fiber, and seven inches wide ling; whereas, in the ordinary block both across the fiber. These blocks are then split, corners are liable to such accidents. Another as indicated in dotted lines, Fig. 2, slightly obadvantage of the relation of grain to the sides lique to the fiber, as seen also in Fig. 3, being of the block is that the V-shaped spaces have brought toward the splitting saw in an inclined one perfectly smooth side, and consequently position, inclined in contradistinction to a posiless opportunity is afforded to the gravel in the tion level at top and bottom, in such a manner filling to jam and leave the lower portion of that the line of the cut will form the other two the space loosely or entirely unfilled. This is beveled sides of two blocks, each of which has believed to be a difficulty in pavements con- the top and bottom level, or in parallel planes, structed of wedge-shaped blocks having the and the sides beveled as shown in Fig. 4, and, grain running vertically, and thereby exposing moreover, has the grain running in the direc the fiber on both the beveled sides of the blocks. tion of one of the beveled sides, as clearly shown "A pavement constructed of our improved in Figs. 2 and 3. These blocks will then be blocks can be laid at a less cost than any other twelve inches long, six inches high, three inches wedge-shaped pavement, owing to the cheap-wide at top, and four inches wide at the base. ness of the blocks. "It has always been desirable to build pavements of wedge-shaped blocks, as they make a stronger and more durable pavement and are more easily laid, but so far it has been impracticable owing to the expense of producing the blocks caused by the waste in material and extra sawing. "Having described the construction and advantage of our improved pavement, what we claim as new and desire to secure by letters patent is "1 As an article of manufacture, wedgeshaped blocks having the grain running parallel "The figures of feet and inches we have, of course, used only as an illustration, as different dimensions of lumber may be used, but those given will do for an ordinary street block. "The two great advantages of this method are economy of lumber and of labor and time, the only loss of lumber being the small pieces cut off at each end to start the bevel. Each two cuts, or rather one cut and one splitting, produces two complete blocks ready for use. "Having thus described our invention, what we desire to secure by letters patent is "The herein described method of cutting blocks for wooden pavement, so as to form by [92 two cuts, or one cut and one splitting, two finished blocks with top and bottom level, or [93] in parallel planes, and the sides beveled, one side being inclined with the fiber, and without waste of material, substantially as set forth." The defendant pleaded the Statute of Limitations, whereupon the complainant amended, and the defendant subsequently demurred, and, the demurrer being overruled, the defendant, after interposing another plea of want of notice, answered, denying that it had, in any way, violated the rights of the complainant, and, among other things, averring that all the substantial claims of complainant's alleged patents were covered by previous patents granted to Nicolson, De Golyer, Miller and Mason, Stone, Cranford, and others; and that wooden pavements, in all substantial particulars identical with those claimed by complainant, had been laid and used for more than two years before the patents were applied for, in Chicago, New York, Boston, etc., and that the alleged patents are null and void because the alleged invention is neither new nor useful. Replication was filed and proofs taken. It appeared that patent No. 101,590 was originally granted to Cowing, whose first application was made in November, 1865, and rejected December 27 of that year, whereupon it was amended and renewed in 1869, but the decision was that the application had been abandoned. It was afterwards entertained, and was twice amended in 1870, and the patent was finally issued April 5, 1870. In the original application Cowing said, as in the patent as issued: 94] "The nature of my invention consists in providing and arranging blocks of a peculiar shape in manner to form wedge-shaped crevices for the reception of earth or gravel, and wherein such earth or gravel will be retained to act as a key to bind and confine the blocks in their place." The amended claim of May, 1869, was: "The above described wood pavement, constructed of rectangular blocks, having each a wedge-shaped piece cut from one of its four vertical sides to form a corresponding space for filling, and placed and filled in, substantially as set forth." The amended claims of February 22, 1870, were: "1st. A wood pavement consisting of blocks having one or more inclined sides, forming between them wedge shaped spaces or crevices, which are filled with earth, gravel, or other suitable material, substantially as herein described. 2d. In wood pavement, wedge shaped spaces or crevices for the reception of earth, gravel, or other filling to act as a key to bind and confine the blocks in their places substantially as described. 3d. A wood pavement block having one or more oblique or inclined sides, so as to form, when set, wedge-shaped spaces or crevices to receive earth, gravel, or other filling, substantially as set forth. 4th. In wood pavement, in combinations with wedge-shaped crevices above, formed by the peculiar shape of the blocks, for receiving gravel or other filling, a continuous base beneath, formed by the complete fitting together of the same blocks at the bottom, substantially as specified." On the 31st of March, 1868, a patent was issued to Miller and Mason, of Chicago, Illinois, for "certain new and useful improvements in wood pavements," in which the claim is "A pavement constructed of wedge-shaped blocks A, when laid so as to break joints with those of the opposite rows, in combination with a concrete filling, and in further combination with a continuous wood foundation and so laid as to form continuous rows across the street." It is said in the specification of that patent: "The blocks A are to be cut from plank, and are of the usual size, having the fiber vertical. The blocks of our pavement, however, differ from all other blocks in use for pavements, in having both sides beveled from top to bottom, as shown by the end view of the blocks in the drawings. The blocks thus prepared are placed in the board or plank foundation B cured to the foundation by a nail or spike as in transverse rows. Each block may be seIt will be observed that in conseshown at a. quence of the peculiar shape of the blocks those in the several rows touch each other at the bottom, but are some distance apart at the top, forming between the rows wedge-shaped channels. These channels are to be filled with concrete, or gravel and coal tar, or other suitable substance, furnishing the necessary foot hold for horses. * "The blocks can be cut with less waste of material by cutting them from timber, and splitting the timber blocks with the proper bevel. This makes a strong pavement, and as the blocks have a broad base they will not cut or break the foundation when very heavilyloaded teams are driven over it.” August 20, 1867, letters patent were reissued to Samuel Nicolson, of Boston, for "a new and useful improved wooden pavement," the origi nal letters having been issued August 8, 1854, and new letters issued dated December 1, 1863, The claims of the second reissue are: "1. Placing a continuous foundation or support, as above described, directly upon the roadway, then arranging thereon a series of blocks, having parallel sides, endwise in rows, so as to leave a continuous narrow groove or channelway between each row, and then filling said grooves or channel-ways with broken stone, gravel and tar, or other like materials. 2. The formation of a pavement by laying a foundation directly upon the roadway, substantially as described, and then employing two sets of blocks; one, a principal set of blocks that shall form the wooden surface of the pavement when completed, and an auxiliary set of blocks or strips. of board which shall form no part of the surface of the pavement, but determine the width of the groove between the principal blocks, and also the filling of said groove, when so formed, between the principal blocks, with broken stone, gravel and tar, or other like material. 3. Placing a continuous foundation or support, as above described, directly upon the roadway, and then arranging thereon a series of blocks having parallel sides end wise in a checkered manner, so as to leave a series of checkered [95] |