188 F. 658 | 9th Cir. | 1911
(after stating the facts as above).
“The old method is objectionable on account of the number of sheets to be adjusted and cared for, and to the shipping clerk, who carries the sheets from place to place, the handling and care of the sheets is a source of great ahnoyanee.”
Eight years after the issuance of the Barlow patent, the appellee conceived the idea, of binding carbon sheets with the stubs of the record sheets of the book, so that the carbon sheets would always be in their place. He also conceived1 the idea of inserting the sheets in the book at such intervals as the use and wear of the same would justify. The patent to James Bengough of January 28, 1896, shows a bound manifold salesbook, the first half of which is a series of single leaves which are one-half the length of the leaves of the remaining half. In the center between the two series of leaves are bound two carbon sheets of the same size as the leaves of the first half of the book. The book is used by beginning at the middle thereof. The first of the long leaves is folded over the second of the carbon sheets. The last of the short leaves is brought over the first carbon sheet. By writing thereon, two duplicates are made upon the two halves of the folded sheet. It is apparent that, long before the whole of the book is used, the carbon sheets are so separated from the leaves on both sides thereof that copies cannot be successfully taken. The patent to G. E. Doughty of October 11, 1898, is similar to the Bengough device, excepting that the carbon sheet, instead! of being bound by stitching in the book, is held therein by a clamp. The patent tó H. P. Brown of August 31, 1897, consists of the application by printing or other means, to the under surface of a sheet, of a nondrying transparent ink which serves to duplicate, upon the sheet below, any entry or mark made upon the face of the first sheet; a pad or cardboard being interposed below the last sheet on which it is intended the mark should be made. The evidence shows that the book was not received favorably for the reason that, as the back of each sheet was covered with the nondrying ink, the sheets smutted any paper or thing with which it came in contact.
In addition to the presumption which arises from the issuance of the patent to the appellee, there are to be taken into consideration, as sustaining his patent, the further facts that, when his invention was made, there was a want in the art for such a device, that in the prior art there were well recognized and admitted defects, and that the appellee’s device eliminated those defects and went into general and successful use. In view of all these considerations, we find the evidence insufficient to overturn the finding of the court below that the appellee did exercise inventive faculty in devising the book for which he obtained his patent.
It is contended that the reissue of the patent is void as being a departure from the original, and not for the same invention, and as containing new matter not authorized by the statute. The argument is that in the original patent there is no claim for three separate substantially equal parts, and that in the original specification there is
“TVIiere the commissioner accepts a surrender of an original patent, and grants a new patent, his decision in the premises in a suit for infringement is iinal and conclusive and is not re-ex amina ble in such a suit in the Circuit Court unless it is apparent upon the face ot the patent that he has exceeded his authority, that there is such a repugnancy between the old and the new patent that it must be held as matter of legal construction that the new patent is not for the same invention as that embraced and secured in the original patent.”
“The pressure on the points 11 of the stub strip, after the latter has been inserted, will hold the carbon permanently in position.”
And again it is said:
“They are held firmly in place just as though they had been bound in the book originally.”
According to the evidence, there are various known methods of binding, as by binding by a clamp, by glue or paste, or by pressure, as well as by sewing or stitching. In the appellant’s patent no specific means for binding or holding the carbon sheets in the recording sheets is described. The claims are broad enough to cover any binding means. The patentee of the appellant’s patent, testifying as to-the Doughty patent, in which the carbon and stubs of the recording sheets are held in a wire frame which is attached to the cover of the book, said that the carbon sheet in that patent is “bound in the book” by a spring. We think that it is immaterial that the carbon sheets, in the appellant’s patent are detachable from the book, or that they are bound in the book after the book is made up. They are to all intents and purposes, when the book is in use, bound in the book within the meaning of the appellee’s claims.
The decree is affirmed.