21 F. 243 | U.S. Cir. Ct. | 1884
The complainant in this case seeks to restrain the infringement of reissue patent Ho. 8,914, issued to complainant, September 30, 1879, for “an improvement in railroad frogs, ” the original patent, Ho. 215,248, having been dated May 20,1879. In his specifications complainant describes the mode of constructing his frog to consist in a peculiar mode of combining the rails so as to form the Y-shaped point or angle of the frog, and also in connecting the point and the wing rails with channel iron, the upturned sides of which are bolted to the wing rails and the point rails.
The defendant is charged with infringing only the second claim of the patent, which is as follows:
“ (2) A frog composed substantially of two center rails, B, B1, joined to form the V-shaped point, united to outside diverging or wing rails by means of two channel or U irons, Í), .D, one wing of which channel or D" irons is shaped to fit the web of the abutting rails, combined to form tlio point of the frog, and upon the other side fitting the web of the wing or diverging rail respectively, and secured by bolts or rivets passing through the webs of the rails and the sides of the channel bars, substantially as shown.”
The history of this patent, as gathered from the records in this case, seems to be this: In'October, 1877, the complainant filed the application for his patent, and on December 2, 1877, the patent was allowed with certain claims; but, as he now insists, by the neglect of his solicitor, the final fee to the patent-office was not paid, and the proceedings to obtain the patent lapsed. Sometime in February, 1879, he renewed his application, and asked that the original specifications and drawings might bo considered as part of the renewed application, and the original patent, Ho. 215,548, was issued May 20, 1879. On June 29, 1879, application was made for a reissue, which resulted in the reissue No. 8,914, now before the court.
Testimony has been put into the record by the complainant, as a witness in his own behalf, tending to show that he made the invention in question previous to June, 1876; but he is unable to define the time with any degree of certainty, except that on June 10, 1876, he exhibited a rough sketch or diagram of his proposed device to Mr. W. H. H. Allison, who affixed his name to said sketch at that date,
The defenses interposed are (1) that defendant does not infringe; (2) that the second claim of the reissue is void because it was not warranted by the original specifications nor the models; (3j that the device now claimed to be covered by the second claim of the reissued patent had been in public use more than two years before the complainant made his application for a patent.
The question of fact as to infringement depends upon 'whether the “two center rails, B, B1, joined together to form the Y-shaped point” mentioned in the second claim, necessarily mean the two center rails which are described in the specifications, or does it mean any center rails joined together in any manner to form a Y-shaped point ? The answer to this question seems to me to be found in the complainant’s own specifications. He says:
“My invention consists—First, in such a formation and connection of the two rails which make up the angular point as that one of the rails extends unbroken and uncut across the path of the other, and in itself makes a solid end to the point, with a full length of flange, which is overlapped by the flange of the other rail, and thus the flange of double thickness is afforded at a point where strength is particularly needed, and the cutting away of the flanges, as is usually the custom, is avoided entirely.”
In his description of the drawings he says:
“A, A1, are the outer or'wing rails of the frog, and B, B1, are the two rails which compose the acute angle or point. ”
And in his description of the mode of constructing his device he says:
“In place of cutting away both the flanges between the two rails midway between the lines of the angle of the frog, as is common now, and, I may say, usually practiced, I continue the flange of the rail, B, of full width, intact, clear along the junction of'the two rails to the point where it strikes the flange of the outer rail, as shown in figure 3, which is almost immediately under the point, X1, of the frog, and I swage up the flange, Bl, of the rail, B1, on one side, as shown in figures 5 and 3, so that it lies over the flange of rail, B; this flange of rail, B1, being cut away angularly on the edge to properly meet the line of the web, B2, of the rail, B.”
It will thus be seen that minute directions are given as to the construction of the two center rails, B, and B k to form a Y-shaped point, and I am of opinion that the two center rails, B, and B1, described in the second claim, are the rails constructed and joined according to the description given in the patent. The language of the claim is, “The two center rails, B, B1, join to form the Y-shaped point,” not -any two center rails joined to form a Y-shaped point. The Y-shaped point made by extending one rail unbroken and uncut directly across the path of the other, and thereby making á solid end to the point, and with the flange of the rail, B1, swaged up so as to lie upon or overlap the flange of the rail, B, seems to me to be an essential element of what complainant supposed he had invented, and therefore
I therefore conclude that the proper construction of the second claim requires the point to be constructed as directed in the body of the patent, and also that the {J iron, as a mode of connecting the point and wing rails, was in public use and well known before complainant claims to have been the inventor thereof.
It may also, I think, be urged with much force, although it was not pressed in the argument, that the application for tnis patent must be deemed to have been first made at the time, and not before the time, when the renewed application was made, after the patent allowed in 1877 had elapsed; and, if this position is sound, there can be no doubt that Weir’s device, precisely as he had constructed and used it, had been in public use for more than two years prior to his application. The application made by Weir in February, 1879, must, as it seems to me, be considered as his first application, the former application going for naught, and leaving him to stand upon that application as made at the time he renewed it, upon his old specifications and drawings.
The bill is dismissed for want of equity. •