100 F. 459 | 6th Cir. | 1900
This suit is brought upon patent No. 480,-093, issued August 2, 1892, to Henry Iliggin, for an alleged new and
“(1) As an article of manufacture, a shell for hub-bands, having an in-turned flange adapted to fate over the points of the hub-band, and provided with an annular depression, substantially as and for the purpose specified. (2) As an article of manufacture, a shell for hub-bands, adapted to engage with the point of the hub-band, provided with an annular depression, and having a. corrugated or knurled portion between its outer end and the annular depression, substantially as and for the purpose specified. (3) The combination, with the hub-band having an annular groove, of a shell adapted to engage with the point of the band, and provided with an annular depression adapted to take into the groove on the band, subs ¡antially as and for the purpose specified. (4) The combination, with the hub-band, B, having groove, bb and bead-ring, b, of the shell-band, O, having flange, c, and depression, eb and adapted to abut against the bead-ring of the band, substantially as and for the purpose specified.”
The first ground of demurrer to the bill is that the patent upon which it is founded—
“Is not valid, and was not at the time of its issuance a valid patent, for that the device therein shown and described was old, well known, and in common use, to such an extent, and so commonly, that the court will take judicial knowledge thereof; that it was found in very many articles in daily use, such as lamps, candlesticks, electric light fixtures, canes, umbrellas, capsules for covering bottles, pepper and salt boxes, and in many other articles of common, ordinary, and general use.”
The district court sustained the demurrer.
We are not sufficiently satisfied, after an examination of the aver-ments of the bill setting out the condition of the prior art, and the extent to which this device has gone into use, that it is SO' plainly unpatentable as to justify the sustaining of the demurrer. The battering, strain, and general rough usage to which the band-shell of the wagon hub is ordinarily subjected might lead the ordinary mechanic away from a device of such simple construction as the one here in controversy. Certainly the articles in which the same principle is