91a

n:DERAL RICPOBTEB,

vol.

JnUle new, thus showing that fining can be as complete at 12 al! at 36 inches. Substantially the facts are proven by John P. Whitney, proprietor of the works, with the additional fact that in their tank No., 9 a boot leg is employed with openings at bottom one inch deep and the shape, of a caret. This shows a clear fluid depth of 24 inches. Testimony in contradiction of some of these points has been produced by the complainants. The very most that could be argued for it is that it the proofs of the defendants. But this will not do. Inalleged. To merely meet the proofs of the defendants is to lejl,¥e the question in the balance, and that is to decide against the of proof being on the complainants, we are pomplainants. The the weight of evidence is against them and in favor of the de(enQ""nts. OtUQonclusions, briefly stated, are-Firat. The fluid layer and its worked deep tank were known before this function in a. granted. Second. At that time the gravital action of glass patent 'Uld the reactions taking place during such movements were known; and no hither,to unknown a9:d ,now known movement, action, or in th4;l melting of glass were disclosed in the patent iIi suit. Third. That the,contention of compM4pants that depth is a necessary function in the fining of glass is pot established by the weight of the evidence. Fourth. That it is not shown that .in defendants' tanks the functions. of forming "below the, upper fluid portion of the metal a layer of metal, in a semifluidol' partially solid CC;>Iildition," as claimed in the patent, is used. The weight ofthe evidence is to the contrary. Fifth. In view of the state of the art at. the date of this patent, the claim granted was not then patentable, and the letters patent No. ,261,054 are invalid. Sixth. That the burden of proof of infringement is on the complainants, and this have failed to meet,. and thtl bill must be dismissed, at their cost. ACHESoN,Circuit Judge, Concurs.

iD.. b9th, though the melting chamber of the old was 12 inches as against

BllOMLEY

B,R()8.

CARPET

Co.

It. STEWART el

aL

(Cweu(t Coun, E. D. PennBt/1IMnf.a. JUly I, 1899.)

1.

P,j.TlI1I'Tll J'()B IJlVBlI'TIONll":"hfvBNTION-MJlOJl,j.!l'JOAL AD.LP'UTION-LooM&

.. ,Fl.rst claim of llatent No., 418,849 to Bromley, Jr., a power loom pro1ided with a double shuttle 'box on each SIde thereof, mechanism for operating said boxell piok lind pick, and a mechanism which stops the loom after every two picks, does not embrace patentable novelty, in view of the faot that all of the elements were old, in exactly the conneotion in which they were used, except the stopping mechanism, which was adapted by a obVious ohange from a olosely analOgous construction· The 11600nd olaim of patent No. 418,84.9, to Thomas Bromley\ Jr., for the combinationl with a mechanism which stops the loom after every two shots of weft, of II mecnanism which may be started by the foot, does not embrace patentable DOvelty,

.. SAMB.

BR01dLlllY BROS·· CARPET 00. ". STEWA.RT.

918

lD view of the fact that the stop mechanism had been adapted by a perfectly obvi· change from a closely analogous mechanism, and that treadle mechanisms for starting a loom were old in connection with automatic mechanism for stopping it.
OUII

&

B.um-AN'l.'ICIPATIOy-ABANDONED EXPERIMENTS.

4.

A machine which had operated at least once to accomplish its desired result, and subsequently was worked satisfactorily several times. without change, is not au abandoned experiment, although several changes not relating to the main oper. ating partll of the machine were suggellted, and the use of the machine was discon. tinued after it had once accomplished its desired reSUlt, because t.he persons using it had turned their attention to other matters.

BAME-INVENTION.

to the new,purpose was proposed almost simultaneously by three distinct and inde-

That. upon the idea of making an improvement, an adaptation of an old machine

pendent. panies) by an alteration of mechanism slightly different structurally, but the same in principle in each case, is evidence that such change. was obvious, and did not involve invention.

, In Equity. Suit by the Bromley Bros. Carpet Company against John Btewartand George Stewart, trading as John Stewart & Son, to restrain of pateI).t No. 418,349, granted December 31,1889, to Thomas ;Bromley, Jr., for a power loom. Bill dismissed. John Dolman, for complainants. Heewr T.Penton, for respondents. ,ACHESONI:Circuit Judge. This suit is upon letters patent No. 418.349, 31, 1889, granted to Thomas Bromley, Jr., upon an dated application,filed May 16, 1889, for an alleged invention appertaining to looms for weaving by power a class of fabrics made with two wefts, one of jute and the other of chenille, thrown "shot about." The defendants are charged with the infringement of the first and second claims of the patent, :which are as follows; "In a power loom for weaving Smyrna carpets, rugs, and such like fabrics: (I) Apower,lb<im prOVided with a double shuttle on each side thereof, mechanism for operating said boxes pick and pick, and a mechanism which stops the, loom after every two picks, as described. (2) The combination, with a mechaI!ism which stops the loom after every two shots of weft, of a mechanism by which the loom may be started by the foot, as shown, described, and for the purpos,e specified." Srnyma rugs and carpets are double-faced fabrics, one side being the Jac simile ,of the other side. Before 1888 they were made altogether by hand, apd this had been so from their first manufacture, about 14 years previously. They are woven with one warp and two wefts, one of the latterconl!isting of coarse jute, the other of parti-colored twisted chenille, a thread of each being shot or thrown alternately. After each weft or thread, of chenille is shot, it is necessary for the weaver to set or adjust it with reference to the preceding thread of chenille, so as to form the figure,and to do this the loom must be thrown out of action, or knocked off and stopped, after every second shot or pick. To effect this stoppage of the loom after every two shots of weft is the purpose of the mechanism covered by the first claim of the patent in suit, and to start the loom again after the w,eaver has set his chenille weft is the purpose of the mechanism covered by the second claim. It is admitted that, while the defendants' mechanism' differs structurally from that deRcribed in the patent in suit, v.51F.no.13-58

FJ!:DERAL REPORTER,

vol. 51.'

contain the constructions of thefir$tand second claims.",,:', ,", At t):)e, t:hreshold of the case by the question whether there iSlU1Y patentable novelty in either of these It is .tll,e proof tbat the)mtire mechanism described in the patent, and enteringinto tbe combinations covered by the first and second claims; bad long previously" been':employed in· power looms for weaving D,ouble shutHe, on ea,ch, side of a power loom operl\tedby the described mechanism "pick and pick II were old, and eo also:wa& thedescribed mechanism ,for stopping fhElIoom. The specification states that the "stop motion" is constructed and operated "the saiUe as weft stop motion, and consistsof the usual cam, b, (whidl carnl:splaced on the lowerpl"cam sha:ft,'a;'lever, G, a pawl, d, slide, rl,an<;ltrigger,g2, all shown, in Fig. 5, and:which parts are all old to weavers. ""The two-shot weft stop motion II was quite aneten't, but'luhlsed ,,;as controlled by the weft. To adapt it to stop the loom after every two shots;th:epatentee 'made a slight and perfectly obvious mechanical change td'accomplish what he had in view. Again, ,tbe ,9ron1pton and Wyman United States patent of 1879 shows soopsthe loomatterevery'pick or sbot, arid iUs shown>tfhat,pdorto Bromley's alleged invention,power looms whichstotlped: after every third or fourth pick, as the parwet'ewell hown. There is testimony to show, and,indeed, it' is'ihdisJ.l1.1tllble, that the alteration in the mechanism(jf the old 'power lo'om, whereBy the 10010 could be stopped automatically after every second pick, if tbis were desired; was a matter entirely plll.in,to any skillful loom builder.; Tben, turning to th foot operatedtnechanism, we find in Crompton's a treadle 'to start the loom after each stopUnited ,Statel;! pagej. ,and, tbe patent of 1879, already referred to as disclosing.:&. mechanism. for I;!,topping the loomaner, each sbot or pick, also sbows a treadle mechanism, substa,ntially the ,same as tbat of the whereby restarted ea,ch stop. Now, if it were ,conlJededthat ,pi and carpets by power of by hand peen conten:lJ>lated before, still did the Jiatentee C]3romley) do than simply apply an old mll:chine to an subject,' w{th'no result substantially distinct in nature, by making obvious mecbapical modifications t6 effect the ,4esiredpurpolle? It seems to me that tbis was all he did, and, if so, wbathe accomplished did not rise to the, plane of invention. Pennsylvanw.R,«i1road qo., v. Truck Co., 110 4 Sup. Ct. 22qj JIoll#y. Manufacturing Co., 113 5 Sup. Ct. Rep. 717j Th(J'mpson v.Eoi8selier, 114 tI. S.),5 Sup. Ct. Rep. 1042j Aron v. R«ilwfl'JI S. 84, 10 Sup. Ct, Rep. 24. But tbe merit of being the fir6tto IJ,onceive of the weaving of "Smyrnas Il bya power loom, and carrying theIdea. into ,successful and practical effect, must be denied An earlier date than the month of April, 1889, cannot be assigned to bis invention. But it is pro\:ed be-

BROMLEY BROS. CARPET CO.

v. STEWART.

91.5

I

yond controversy that, as as December, 1887, Joseph H. Bromley, a. member of the tirmof John Bromley & Sons, manufacturers of carpets, rugs, etc., at Philadelphia, had conceived the idea of weaving Smyrna rugs by power; and that he gave an order (which at first was verbal, but afterwards was embodied in a letter signed by his firm) to the Knowles Loom Works, of Worcester, Mass., for the construction of a power loom for that purpose, to contain the same elements as that of the first and second claims of the pateht in suit, and perlorming the same functions. The original letter of John Bromley & Sons containing this order, bearing date December 12, 1887, and which was received by the Knowles Loom Works shortly after its date, is in evidence. That company, however, being tardy in executing this order, John Bromley & Sons, early in May, 1888, gave a verbal order to the M. A. Furbush & Son Machine Company, of Camden, N. J., to build such a power loom. This order was entered May 10, 1888, on the order book of Furbush & Son, who built the loom and delivered it to John Bromley & Sons at their establishment in Philadelphia about June 19, 1888, the date of the invoice which is in evidence. This loom was provided with double shuttle boxes on each side, with mechanism to operate them "pick and pick," mechanism to stop the 100m atter every second pick, and a treadle or foot meehanism to start the loom. It was set up and tested by John Bromley & Sons shortly alter its delivery, and was found to be practically operative for weaving Smyrna rugs. At least one entire Smyrna rug was woven upon this loom at that time. It was not an experimental machine, but a complete and finished power luom, capable of working, and, in fact, it was then operated successfully. While this suit has been in progress, this lool!l, without any ::.lteration whatever having been made in it, was set to work, and several complete Smyrna rugs, which are exhibits in this eRse, were wov"n thereon. There is no real foundation for the argument that this Furbush 100m belongs to the category of ahandoned experiments. It is true that William Hanson, the superintendent of John Brolllipy & Sons, thought that the loom was a little too narrow, and he also some minor additional improVt'ments for the ease of the weaver, but these proposl>d additions did not relate to the parts of the loom involvl·d in this controversy. They concerned other distinct parts. When this loom was procured it was the intention of. John Bromley & Sons to proceed to change the weaving of Smyrna rugs in their elltablishment from hand to power. The change, however, was not then made, but was delelTed tern porarily, because they had just begun to manuJacture chenille curin putting in a number or new looms Jor tains, and Were then that purpOl;e. They commenced to make the chll.nge in the manner of weaving Smyrna rugs in December, IS8!}, and receh'ed power looms for the purpose from the Knowles Loom Works, the first 011e being shipped there December 14, 1889. As respects the acts of the deJendants here complained of, it appears that, some time in the spring 0:' 181;9, the idea of weaving Smyrna :mgs bypOW\ll' to George William Stewart, a member of thedefeud-

916
" ,., .. r

i'EDERA L REPORTER,

. .

vol. 51.

ants.' fir:ql of John 'Stewart & Son, illltnufacturers of rugs, etc., and he made a'rawings of a loom for this purpose. . About the middle of September, 1889, he gave verbal order for such a loom to the Loom Works. It and tested satisfactorily about the middle of November, 1889, and on the 21st day of that month the defendants ordered from the Crompton Loom Works 25 such looms. The delivery thereOfcommenoed in the last week of December, 1889, and these are the looms alleged to infringe the plaintiffs' patent. The proof thus disclosed the .significant fact that the conception of weaving Smyrna rugs by power instead of by hand occurred about the same time to three different namely, Joseph H. Bromley, Thomas BrOmley, Jr., and George William Stewart, engaged in the of these rugs, whoee, respective firms, acting independently o( e!l:ch other, gave orders to 100m. builders, who thereupon constructed power looms for the purpose'" difterent structurally, but, all having mechanism to stop the, loom after every and for restarting it by the foot. , This coincidence is confirmatpry of our conclusion that 11;0 invention ,in,. ,a patentable sense' was involved in the. ,first and second claims of the patent in suit. Atlantic Works v. Brady, 107 tr. S. 192, 199, 2 Sup. Ct. Rep. 225.. For the reasons above. the lack ofpatentable novelty; and, second, becausfil of crear antiCipation shQwnin the FU,rbush loom madein the summer of 1888-the plaintiffs' case fails. Let a decree be drawn dismissing the bill, with (;os15.

A

LEWIS

LOT OF

W IlALEBONE.

LOT OF WHALEBONE. August 30, 1892.)

et al. v. A

(DiBtrlct Court, N. D. CaU/ornia.

No. 10,269.

1.

SALVAGE-WUAT CONSTITUTES SALVAGES'lmvlOE.

A whlli1ing yess!!l with a cargo of whalebone and oil went ashore in tl1e ArctiC sea. Herrlldder and keel were and her machinery displaced. Every ef· fort to get' her off WitS nnavailing, and dist.ress sig-nals were displayed. A similar vessel in the vicinity, b,ut the dangerons condi,tion of the .sea pt·e· vented any response. Next morning a message was sent by the captalD of the wrecked 'ship,to wit, that if the captain of the salving ship would "set his colors to the mizzen peak he would leave his ship, and come aboard; or, if he that his botiecoutd be saved, to send his boats for it." There was some conflict as to thepllrport of ,the message, but it was decided that the weight of, testimony and the surroupding cIrcumstances indicated that the captain of the wrecked, vese sel was anxIOus to escape with his crew; and the saving of the cargo was a secoudary The whalebone was rescued, and landed safely in: port. Held, the bone must be regarded as having been quas1, derelict, and the ,service in securing it a salvage service.
SAlIIE-PARTtB8--DISMISSAL.

9.

When Bome of the.owpers ofa salvipg ship are also part, owners in the salved property, and their interests in the respectiye properties are varied and graded, and .where it is:necessary, in order to effect an equitable adjustment of the question of salvage, Bnd avoid a multiplicity of SUits, that all of the owners be made parties,