59 F. 902 | U.S. Circuit Court for the District of Eastern Michigan | 1894
(after stating the facts.) The single question arising upon this record is as to the patentability of the Ross railway brake shoe. The defense admits this to be the only issue, and insists that the prior state of the art and the simplicity of the device both negative the validity of the patent. The proofs taken in the cause since the granting of the injunction by Judge Brown afford no ground for varying the conclusions which he then reached. The drawing of the Ross shoe in the patent office was made by his attorney, and shows that the lug or rib on the inner side of the flange was not carried down to the wheel,-as is done in the shoe as constructed. Ross’ first application was rejected in the patent office on this, and the' further ground that the extension of the inner lug or rib to the wheel was not described in the specification, and therefore the Steel patent answered Ross’ claim of invention. The error in the drawing was that of Ross’ attorney. The patentee’s own drawing showed the projection of the wheel. The examiner, however, was in error in the statement that the extension of the rib, O, to the tread of the wheel, was not described in this specification. This expressly states that “between the grooves in the shoe is a rib, 0, which forms a portion of one side of the flanged groove, and projects down to reach that portion of the wheel not worn much by the track.” Notwithstanding this error or defect in the drawing, it is plain that this explicit language not only sets forth unmistakably the inventor’s idea, but also, in view of the declared purpose of the device, — to produce uniformity of wear in the surface of the wheel, — no mechanic of ordinary skill could have failed to make the device from the specifications alone. The specifications are addressed to those skilled in the kind of appliances described by the inventor. Familiar, presumably, with the
His shoe is designed and adapted to get its friction surface only from those portions of the tread of the wheel not worn by the rail, and thus to avoid increasing the rail wear upon the tread proper. The inventor evidently believed, and it is the claim of his-original and amended specification, that the wear of the shoe upon the wheel would practically equal, and thus offset, that of the track upon the wheel tread proper. His specifications indicate this, for, after describing the operation of the shoe, he adds, as a result:
“Those portions of the wheel which are not worn by the rail are worn down by the shoe, and the tread is thereby kept longer in its proper shape, as, while the track is wearing down one portion, the shoe is wearing down the other, thereby effecting a large saving in the wear of the wheel itself, and also in the matter of re-turning the tires or wheels.”
While there is a marked similarity, which to a casual observer amounts almost to identity, in form and use, in the Boss and Steel devices, there is a substantial difference between them, which not only determined, in the patent office, the patentability of Boss’ device, but has caused the former to supersede Steel’s both in Great Britain and in this country. The Stilmant and Brill patents which are pleaded in defense may be laid out of consideration altogether. There is nothing anticipatory of Boss’ invention in either. The issue is solely between Boss and Steel. The aim of each was to produce a brake shoe which would so operate upon the wheels of railway cars as to obviate, as much as possible, the effect of the rail wear upon the tread of the wheel, and insure its constant profile. Both accepted, as a necessity for reducing the velocity or bringing to rest the moving car, the application of the restraining power or frictional energy directly upon the face- or periphery of the wheel, and relied upon the grinding down, by the application of the shoe, of those parts of the tire upon which its pressure was exerted, to equalize the frictional wear of tire tread proper by the track. To accomplish this result, Steel gave his device two bearings on the wheel, — one on the outside of the tread, spanning it from its outer edge with a groove or channel which extended to the upper part of the inside of the flange, at which point he formed another groove or channel in the brake block or shoe, which engaged the rim or periphery of the flange, thereby constituting the second bearing of the shoe. Boss’ shoe claims three bearings, viz.: one on the outside of the tread, one on the inside, between the tread and the flange, and the third upon the periphery of the flange. The second of these bearings affords the distinctive feature of difference between the two appliances. In Steel’s specifications he states expressly that "When the brake block is brought into operation, so as to stop or retard the motion of the train, it does not act upon the part, D, D,
Under this proposed modification it is argued that no one following out Steel’s instructions could help making the Ross shoe, and that Ross’ change in the shoe was neither a change in the principle of the invention nor a new' idea; and, further, that “the invention was whole and complete as soon as Steel had told us to make a brake shoe that should be so shaped as to wear only on those parts of the wheel not worn by rolling;” and, further, that there is no room, after that, for anything but the ordinary knowledge of the mechanic skilled in this particular art.
It is very doubtful if Steel’s specification ca,n be extended beyond the form of brake blocks set forth in Ms drawing, notwithstanding his claim that they may be constructed “either with or without a longitudinal hollow or channel therein.” This suggestion, and its accompaniment, — “otherwise so shaping them as to bear upon the flange and those parts of the tire which are not worn in rolling,”— does not propose the substitution of a solid block extending to the flange, for the obvious reason that such a block must act upon the tread of the tire which is worn by the rail, while Ms leading idea, as expressed in his specification, is to avoid sucf. contact, and to' rely upon the wear of the block on other parts of the tire. How far the solid block should extend is not stated. He suggests no mode or form of “otherwise so shaping the blocks” as to avoid this double wear, and the phrase itself is vague and indefinite, conveying to those skilled in the art no idea of the form of the alternative. His invention should be limited to the device described in his specification. He could not close the field of invention to others by “an all-embracing claim, calculated, by its wide generalization and ambiguous language, to discourage further invention in the same department of industry.” Carlton v. Bokee, 17 Wall. 472. Nor was the invention complete when Steel proposed to shape the brake block so as to wear only upon those parts of the wheel not worn by rolling. If the idea of such a construction must be credited to him, he failed to exemplify it so as to insure its object, — the even wear of the tire, and the avoidance of the cost of re-turning them. He
Long before Bell patented the telephone it was the general belief of scientists that speech could be transmitted by electricity if the requisite electrical effect could be produced. Bell discovered and perfected the apparatus and the process by which this could be done; and, although the previous labors of Reis in the.same field had brought him almost (o the point of success, he failed to reach his goal. Over 20 years before Bell’s invention an eminent scientist
Examples of patented inventions which have been upheld by the courts, although they differed very little in form, mechanism, or operation from other appliances, are numerous. Krementz v. S. Cottle Co., 148 U. S. 556, 13 Sup. Ct. 719; Loom Co. v. Higgins, 105 U. S. 580; Consolidated Safety-Valve Co. v. Crosby Steam Gauge & Valve Co., 113 U. S. 157, 5 Sup. Ct. 513; Magowan v. Packing Co., 141 U. S. 332, 12 Sup. Ct. 71; The Barbed Wire Patent, 143 U. S. 275, 12 Sup. Ct. 443, 450; Gandy v. Belting Co., 143 U. S. 587-594, 12 Sup. Ct. 598; Topliff v. Topliff, 145 U. S. 156-163, 12 Sup. Ct. 825.
For the reasons given, and those mentioned by Mr. Justice Brown in awarding the injunction in this cause, there must be a decree for complainants, with a reference lo a master to ascertain damages; and the injunction is made perpetual.