YOUNG
v.
BALTIMORE COUNTY HEDGE &: WlRE FENCE CO.
109
et al. v.
BALTIMORE .COUNTY HEDGE
& WIRE
FENCE CO.
(Oircuit Oourt, D. Maryland. June 21, 1892.) 1.
Patent No. 254,085, JUly 21, 1882, held to be for a wire extending along the base of a hedge near the ground to prevent the passage of small animals before the shoots of the hedge are grown. SAME-NoVELTY.
POR INVENTIONS-LIMITATION Oll' CLAIM-HEDGE FENCES.
2.
Held, that the patent is void for want of patentability, it being old to use suoh a wire to keep tile plant!! in position, and to give the hedge inoreased lateral strength, and it being old to use a wire along the base of an ordinary fence to prevent the passage of small animals.
(SyUabus by the Court.)
In Equity. Bill by Wesley Young and the Maryland Hedge & Wire Company against Baltimore County Hedge & Wire Fence Company for infringement of patent. Bill dismissed. Wood & Boyd, for complainants. G. L. Van Bibber, M.Bailey, and W. F. Mitchell, for respondent. MORRIS, District Judge. The bill of complaint in this case alleged the infringement of four patents. but the bill has been dismissed as toaH except the patent to Wesley Young, No. 254,085, dated July21, 1882. That patent is for an improvement in "plashed hedges." The claim is a narrow one, for a single and simple improvement. The patentee, Young, describes the method of plashing hedge fences as practiced at the date of his application, which he says is by bending over the plant in the line of the fence, the bending taking place in the root, and securing the first plant in its bent position by fastening it to a stake, then a piece of wire is passed under the first plant quite near the ground and crossed and twisted around the next plant, and in like manner around as many succeeding plants as the wire is capable' of holding in their proper relative positions; it being intended that the wire shall cross the plants approximately at right angles to their inclined positions, and so that every plant is held down in its inclined position and in the plane of the fence. In describing this method, which he states was then in use, he says: "Or one. or more of the lines of wire may be stretched first, and the plants .bent down and secured in position by attaching them to the wire." He further says: "The present invention looks to the still further development of this branch 9£ industry, and has for its object to provide a hedge fenCe which from the time it is fiJ;st plashed will present a strong and impassable barriet· to all ordinary stock which is permitted to run at· large, and the propel' growth of which hedge will not be interfered with by the causes ordinarily eXisting. '" * '" In order to give the fence the reqUiSite degree of lateral strength atthe start, I apply a continuous horizontal line or lines of wire or other material along it from end to end, securing the said line or lines t9 the plants by staples, nails or loops or other suitable fastenings, as shown in the by interweaving it with the plants as shown. I preferably apdrawing, ply two lines of Wire, one near the iJppel; ends of the plants are plashed and cut off to the proper height, and one near their base, as repre-
vol. 51.;,;. sented in the drawing, thongh other intermediate lines of wire may also be employed If thought Aecessal'y. J also prefer to employ barbed wire, as that affords l atiditlonalelfecti-venpssRsa ·lJarrlerto stock, but plaIn, wire will answer reasonably well. '" '" '" The lower wire is indlsvensable. for by its aid the openings.betweenthe plants are oloseQ,at the bottom from the start, and small pigs are prevented from passing through, thereby enabling the si9-e shoots of the' plants tOl'xtehd out and close the openings efft"ctively, close fenc,ei, the plashing is done. , Th,s lower wire should be placed quite near the sutfaceof the ground, to be most effective. It will be seen that additional lateral strength of the fence is secured by the employme,nt of the two ,lines of wire,one at the top and another at the botton'l' With or without'intermetliate lines, and, secondly, that the efft'ctual closing anhe loWer III tatvals of the fence, to enable 'the shoots to properly develop. is accomplished by the lower wire alone. 1 am aware that it is not new to place a line of barbed wIre along the bottom of a post and board fence pr,evllntinl8' ,small from passing under the fence. als<:>Jha,t it Is not liew to j'ntetweave in theli'pper portion of a live hedge fence withes 01' tiranclu;ls not 'I;lo' p'\\l;tof the grOWing fence, and such construction I claIm a hedge felice 011 which do not claim as my iuvent\lllI., thl' plants are plaslll'u together by m""ns ufua coulinous line of wire wound aroun!!: from one t<,t 1I11,itl.er. near tb,e Upper enus, as shown in !Jatent to D. M. Kirkblidge, May 80, 1876." The claiins are:
'JI.) of live plane of the fence, andl!eldm viace fastenlllgs; and havlflg a hue of wIre extendingalong'the base oC'Ullq.)ants Ileal' tile /otround, said wire being secured to theplantll, and. upe:ratingto prevent the passa.ge through the spaces between alllaU bel'oresaid spaces have become closed or protectelJ as dl'scl'ibed. (2) A hedge fence cOIllI'OSerJ.9f liVE( pent down in .the planl' of the fence, alld held in place and havliJg: line of wire extendillg alOng thl-upper ,'6rtion of the plauts;iand secured thereto, to give increased lateral 'strenuth, 'imU h'aving horizontal line of wire extending along and secu,nt'd tIl the of the plllnts, 101' preventing the passage through IlmaU stock before said spaces have ;Or by, tb,e gro wth of bhe Side shoots, substantially as become described, It ' . The claims ofr: the original appHeaiion in the patent office were broader. but upon objeetion and a citation from the Garllener's Chronicle for 1873. p. fIlS, and for.1875, 'p. 458, ,the applicant :nodifiedhis claim so ito covers} line of wire extending along the base of the plants near the ground, and secured to the plants,' and operating to preYelitthe ,passl1geof smalJ allimals through the llpacE's'hetween the plants belore havebeooliie closed;, by the growth of shooti. The Gardt'ner'sChl'onicle for 1871)' improvem'ent in hedge culture the the six to eight feet apart, tp ,a hne of"WJre ,is stapled lI-ud drawn tlght by being at,... tuched l\t the ends togatew6ys, when .theyoccllr in .the line of the 1'en(le.
nis'saidii
, 1"J;ht
'
ad,IlD,ulll,
cjt to 'as were" W the hedge, thereby l,reventmg from'pl,ls!J1l1t( th.rough, wl1ich they
YOUNG V. BALTIMORE COUNTY HEDGE &: WIRE FENCE CO.
111
are very liable to do at all thin and weak parts of a hedge. When once the hedge grows over ,and fairly covers ,the wire, the: posts are of little further lilie, and,do not require as ti\e ,fence itself SUPP9rts the wire. and keeps it ever afterwards in ,its place. :'; The oblY' differences between what is described in the publication froo1 which the ,above is taken, and:wbat is'claimedin Young's patent, is that by Young's method it is stated that the wire is to be used earlier in the life of the hedge;-that is to say, when it 'is first plashed,-and that the lower wire is to be plaoedquite near the ground, so as to intercept small animals before the' lowest shoots are sufficiently grown to make a barrier. It is not said in Youog's method whether tbe wires are to be stretched. taut between convenient posts or not, but it is obvious that in practice this would be done if practicable. In Young's method thewires are to be stapled or otherwise suitably fastened to the plants, and in the publishfld method the wires were at first to be stapled to the small posts, but in the end the plants supported the wire. , At the threshold of the consideration of the patentability of these matters connected with growing hedge fences, it suggests itself that the plash-· ingof the hedges, that is, the bending over of the plants at the roots in the line of the fence, all at the same and securing them in that position. and the discovery of the fact that growing in that position the, tend to spread out lower dowll, and the shoots of the lower inclined· plants tend· to interlace with those of the upper plants so as to form an effective, vigorously growing hedge fence, all this to the first discoverer. and also the bestmeaosof accomplishing it, mightfilirly be matters requiring invention, and proper to be protected by a patent. But it also that, alter this [bethod of growing a hedge was known, the suggests use in connection with it of· anything in such common use and so obvious as a line of wire along the hedge, or interweaved in the hedge, for the purposes of a fence, merely, and to prevent animals from passing through where the hedge Was too weak itself to prevent them, could not be a discovery or require invention. It is said that no one before Young systematically used the lower wire for this purpose, or taught the public how essentially important it was to the proper growth of the lower shoots of the plants that they should be thus protected, and no one before Young, it is said, for this reasoll, was uniformly successful in growing, ata moderate cost, an effective hedge fence. But this is not showing Young to have been an inventor, but merely that he does systematically and thoroughly, and with a sense 0,1 its importance, what others had the means of doing, and knew how to do" but did not appreciate the importance of. Just as a man may know that a certain treatment is good for his fruit trees, butdoesllot obtain the best .results because he does not use it intelligently at the right times and in the best manner. The . use of a wire along the base of an ordinary' is admitted in the specification to be a COmmon means of preventing the passage of small animals. Such a wire would be fastened i'D anysliitahle'way. either to the fence itself or to stakes put down for that purpose. And it t
FEDERAL .
vol. 51.
would either be stretched taut or interweaved, as might be convenient. It would,with many ornamental fences or palings, answer the double purpose: of preventing the anitnals passing in and out, and .also of preventing the injury to the fence itself from the abrasion and forcing asunder: which results when anilllals are frequently pushing through and enlargiQg an opening. . In the growing hedge fence, the lower wire performs same uses. It is more important, and the consequences of ul:lglecting its timely use are more serious, just to the extent that a grolVi.ughedgl:lis more easily spoilaq ,and more difficult to repair than an orfence. In Young's patent the only use claimed for the lower wire is :as a defense,against animl1ls, and he cannot be allowed to claim it .generally, as he abaqdoned and emsed from his application those claims in ;whioh ,he had coyer the .use of the wire to keep the plants ip pO/:lition, and to giYe the he<;lge increased lateral strength. He was obligpg. to make this abandonment, because he recited. in hill specificatiOl\S that on.e of the ways of securing the plashed plants in positiop. attaching.th,em.to a stretched line of wire, and the Gardener's Ohl'9nicleqisclosedtq.at it was old to use a stretched wire to give inlll-ter&, while the hedge. plants were young and weak. '. The d;9cree of19th June, 1891, in the circuit court of the United States Jqr ,thl'l.western. diyisioPi .of the western district of '.l'ennessee, called in th;scase the"MemppisPecree," adjudges this patent to be valid, but confineS it "secured to the plants without any extrane,ous .support." If the claim of the patent is to be read with this restriction,. then the. respQQ-dents in this case do not infringe, as it is proved that ,the horizontal wires 'used by them taut between posts or, or gatew;aY13, or whatever stationary objects in the line of the Jep.ce they can .be cOl;lveniently at41ched to, and, after they are thus stretched, thE! plants secured in their.inclined position by being fastened to using the diagonal wires only whennepessary: to a plant in position which was more than ordinarily stiff and refractory. But I think in the present case it has been shown by t1:1e complainant's witnesses., and notably by their expert witness, See, that the end attachments. of the horizontal wires have no oftbe of the patent; and I conclude, bearing upon the as doescoll1plainant'switness that at least a preliminary use of a post, or some fixed, object to whieh the ends of the wire might be fastened; is clearly implied by the specification of the .patent itself. Upon the whole case, my conclusion is that, in view of what had been dope, the claim for. a line of wire secured to the plants near theground",to. prevent the passage of, animals, is void for want of patentaqilityjaDd, that,how,ever beneficial its timely ,Use as pointed out by Young may be, it is an improvemept in the art of hedge making, resulting, not from invention or discovery, but from the more systematic and thor,. at,tentlontl;> the fact that the young shoots at the base of the plants ought tQ be protected against small .animals until they are sufficiently grown to bea barrier themselves. Bill dismissed.
H.\.RMON 'Ii. HARMON.
113
HARMON
et ai. v.
et aI. (two cases.)
(O£rcuit Court, N. D. Illinois. January 4, 1892.)
In Equity. Bills by Jacob M. Harmon and Jeremiah R. Harmon, respectively, against Anthony Harmon and others, beneficiaries under the will of Jacob Harmon, deceased, for the specific performance of parol contracts made by the deceased with complainants. The two cases were argued together. Bills dismissed for want of equity. Doyle, Morris &: Pierson, for complainants. J. S. Norton and J. W; HoweU, for defendants. BLODGETT, District Judge. These are bills in equity for specific performance of parol contracts alleged to have been made between complainants, respectively, and one Jacob Harmon, whereby Jacob, who was the )lncle of complainants, being the owner of a large tract of land in Iroquois county, in the state of Illinois, agreed with complainants that, if they would move onto the land described in the two rei"pective bills, and improv'e the same, and pay him an annual rental, at an agreed rate, from time to time, per year, as long as he lived, the land should become death. JacohHarmon died in February, 1885, and by his theirs at will, made a couple of weeks prior to his death, an entirely different disposition of the property in question was made from that alleged in these bills, and this bill is filed against the beneficiaries under the will to enforce'the specific performance of the alleged contract. The two cases stand. upon substantially the same proofs, and have been argued and considered together. .v.51F.no.5-8
