77 F. 736 | U.S. Circuit Court for the District of Southern New York | 1896
The tub of the patent is cheap, strong, clean, durable, light, symmetrical and easily moved.
In the evolution of hygienics it is now deemed a desideratum that the plumbing of the bath-room shall he open and exposed to view. Before Booth’s invention the tubs used in connection with this sanitary plumbing were either of porcelain or cast iron enameled. The cost of the former was almost prohibitive; the latter, though less expensive, were not durable, the enamel chipping off with use. Booth’s invention, for the first time, brought all the advantages of a sanitary tub and open plumbing within the reach of persons of moderate means. If one can afford a bath-room at all he can have a tub which, so far as health and convenience are concerned, combines all the advantages of tbe most expensive porcelain tub. To
Nothing in the prior art anticipates. The novelty of Booth’s tub is hardly disputed by the defendants’ expert, but it is said that the prior art shows many structures which approximate it so closely that the changes made by Booth were the work of the mechanic and not the inventor. The court cannot accept this view. The fact that he was the first to produce a tub possessing the features enumerated above, the fact that he succeeded where many failed, entitles him to a place among inventors. Even though there were doubt on the subject the patent should have the benefit of the doubt.
The defendants’ tub is almost an exact reproduction of the tub of the patent, the only difference being that they place between the steel casing and the copper lining, sheets of asbestos paper two-hundredths of an inch in thickness. The claims provide for “close contact,” and it is argued that they are avoided because the defendants introduce paper between the steel and copper. The fallacy of this view is exposed by the apt and sententious illustrations of the complainant’s expert, Mr. Benjamin. He says:
“To aver that a sheet of copper is not in contact with a smooth sheet of steel which supports it, and against which it rests, because a piece of paper is interposed between, seems to be as idle as to assert that a piece of wall paper does not rest in close contact with and is not supported by the wall because an old layer of paper, already attached to the wall, happens to be beneath it. It amounts to asserting the same thing as that no man’s hat is in close contact with his head unless he is strictly bald.”
The defendants’ contention can be sustained only by adopting a rule so rigid and technical that it would, if generally followed, take the life out of a majority of patents. To inform an inventor that he has a valid patent and so construe it afterwards that it is of no more practical use than a page of the Koran, is neither a logical nor an equitable position for the court to assume. It simply offers a premium for infringers to use their ingenuity in discovering evasions which will enable them to make off with all that is of value while the court is juggling wi th adjectives and punctuation.
If the construction contended for by the defendants is adopted the next infringer will escape by inserting sheets of tissue paper and the third by putting a coat of paint on the casing or lining. Indeed, it' would seem to follow as a logical conclusiorii that “close contact” is prevented by.the thin coat of anti-rust varnish which covers the casing. It certainly prevents the steel from actually touching the copper and this is all the defendants’ paper does.
The inventor never intended to limit himself to such a strained construction; nothing in the art required it and it is contrary to common fairness and to common sense. Notwithstanding their thin sheet of paper the defendants’ casing supports their lining precisely as does the complainant’s; it is simply impossible to suggest any functional difference. In the eye of the law they are identical.
It follows that the complainant in each case is entitled to the usual decree.
