30 F. 190 | U.S. Circuit Court for the District of Eastern Michigan | 1886
The testimony offered by the defendant in this case tends to show that in the early part of May, 1875, and more than two years before plaintiff' applied for his patent, one Clark Cornwell, a large paper and pulp manufacturer, caused to be made and put upon the engine of a pulp-mill at Jackson, Michigan, a sight-feed lubricator, embodying the invention and improvements claimed in the Flower patent, and differing from it only in the fact that the condensing pipe ivas carried down the outside instead of the inside of the reservoir, entering it at the bottom, but delivering the -water at the same point as in the plaintiff’s device, as the lubricators were actually manufactured by him, though
The testimony, however, satisfies us that tbe lubricator was a successful working machine from the time the perforated plate was inserted, and that it embodied all the essential features of the plaintiff’s patent. The funnel or cone placed at the bottom of tbe water tube, although mentioned in plaintiff’s specifications as tbe orifice, r, and shown in his drawing as a small cone rising in the center of the water tube at the bottom, is not alluded to in his claim, which is simply for “a lubricator .-Kifisisting of a condensing tube, an oil chamber, and a water tube, con
But we think the second defense is also established, and that, upon the testimony, Cornwell must be considered the prior inventor of the sight-feed lubricator. It is true that Flower claims to have conceived his device as early as 1872, and to have put it in practical operation as early as 1874, but his testimony is far from satisfactory upon this point. His story is that he conceived his invention while observing the bad action of an engine at Au Sable, Michigan, on St. Patrick’s day, March 17, 1872, as he was about leaving for Chicago. He became time-keeper for the Union Brass Company, in Chicago, in the summer of 1872, engaged as their foreman in the fall of that year, and took charge of their engine, as engineer, March 17, 1873. In support of his claim, he exhibits a sketch of a lubricator in a book upon the steam-engine, which he claims was made some time between February 18, 1873, and the fall of 1874. The sketch proves nothing, of itself, however, as it may have been made at any time after the book was published. Before making this sketch, he made sundry experiments with a glass tube, bent in the form of a siphon, filled with tallow, and immersed in a pail of water. His next step towards developing the invention was making a cup embodying substantially the features of his invention, which was, when completed, attached to a pump at the brass-works in Chicago. He cannot fix the date of this, but is confident it was before October, 1874. This, it appears, did not work satisfactorily. His next step was to make a lubricator very closely after the drawing annexed to his patent, which he claims was put on a steam-engine and operated perfectly before the seventeenth of March, 1875, at which time he regarded his experimenting as finished. The substance of his testimony is that he conceived his invention on St. Patrick’s day, 1872; became engineer of the brass-works at Chicago, St. Patrick’s day, 1873; and perfected hisdnvention St. Patrick’s day, 1875. This patriotic coincidence of dates contains, at least, a suggestion of improbabilities.
The testimony he offers in support of his own statement is not of a satisfactory description. That of Mr. De Graff is entirely hearsay, and incompetent. He visited Chicago in October, 1877, after the patent had been applied for; noticed the lubricator on the engine; when Flower told him it was his invention, and that he had been working on it for two or three years. It is scarcely necessary to say that this testimony must be left out of consideration. The only other testimony is that of one Doyle, who swears that, in the spring of 1875, Flower took him out to the Union Brass Company, where he was working as engineer, showed him a lubricator, and called his attention particularly to the drops of oil rising through the glass tube. He admits, however, that he knew nothing
In contradiction of his statement, it is shown that Mr. Flower had formerly been involved in an interference in the patent-office with one Parshall; and that, under, a rule of the patent-office requiring each party to an interference to file a preliminary statement, under oath, showing the date of his original conception of the invention, of the making of a drawing and of a model, and of its disclosure to others, of its reduction to practice, and of the extent of its issue, he had filed an affidavit, in 1880, stating that his first conception of the subject-matter of his invention, as shown and described in his patent, was previous to June, 1876, but the exact date he ivas unable at that time to give. His affidavit continues in the following language:
“On or about June 23, 1876, I commenced to make and finished a lubricator, for the purpose of ascertaining if oil would pass up through water; and, the experiment proving satisfactory, a day or two thereafter I made a lubricator in all material respects the same as that shown and described in my said patent Ho. 196,650, now in interference. This lubricator was put in use by me, and found to work satisfactorily, and is in my possession at the present time. * * * The lubricator, as conceived by me in June, 1876, and carried out by me in the working lubricator made by me in June, 1876, and used and illustrated in the drawings made by me, and embodied in the patterns made by me, is the same substantially as the device shown and described in my said patent.”
We find it impossible to reconcile this with his present testimony. His only explanation is that he told his attorney and associates that he had invented it a good while before, but Ms partner said that was far enough back, and, as the preliminary statement was hastily prepared, it was so loft without further investigation. Knowing, however, that the date of his conception of the invention, and of his 'putting such conception into practice, was of the utmost importance, and that he would be held strictly in his proof to the dates set up in his Statement, it is incredible (hat be should have stated, or that his attorney should have allowed him to state, that he conceived his invention more than four years after he now claims to have conceived it, and nearly two years after he now claims to have had a sight-feed lubricator in successful operation in Chicago. It is equally incredible that he should have waited for three years after his invention was in successful operation before applying for a patent. Indeed, we incline to the opinion that his use of it in October, 1874, or at least in the spring of 1875, was such a public use of it two years before lie applied for this patent as would render it void. Wo are forced to conclude, in tins connection, that Flower, finding himself confronted with an antecedent device, resorted to the familiar expedient of antedating bis own invention to meet the exigencies of the case. In the examination of many patent causes, we have seldom found that the supply of this class of testimony was inadequate to the demand. The chief difficulty in his case is that the same testimony winch proves Flower to be the first inventor also shows his invention to have been in public
On rehearing, before Jackson and Brown, JJ., this case was affirmed.