69 F. 468 | U.S. Circuit Court for the Northern District of Illnois | 1895
The defendant demurs to a bill of complaint alleging infringement of letters patent No. 228,347, issued to James Hawks, June 1, 1880, for “angle splice for railway joint,” and assigned to the complainant. The first claim of the patent is this:
“A splice made angular in'cross section, and having its base flange, i, constructed with a bend, k, whereby the base flange of the splice is adapted to fit upon the bases of two abutting rails of unequal height, and having its vertical web, L, fitted under the heads of the abutting rails, substantially as set forth.” .
And the second claim is for a combination, with rails of unequal height, of two of the angle splices of the first claim, bolted to the rails.
The sole ground asserted for the demurrer is that the patent “is wholly invalid on its face, for want of patentable novelty and invention.” It is unquestionable that this objection may be taken by demurrer, and it is equally clear that the demurrer should be1 overruled, and the complainant put to answer, if the question of invention or novelty is fairly open to doubt. Oftentimes a showing of the prior state of the art will demonstrate that to be true invention which does not seem to possess this merit on first impression, and when read in the simple terms of the patent, and all light in that direction is shut out if the demurrer is sustained. The argument that the court can take judicial notice of certain facts which are of common understanding does not apply, as it would require, for the purposes of this ease, an assumption of knowledge, not only of the methods which had been employed for joining the rails, but of the practical difficulties, under various conditions, which were met, and the measure in which the means theretofore employed had failed, and the alleged invention had succeeded, in overcoming them. It would be an innovation for the