57Q,; ,
vQl.68.
should ,lUlt .th.rwise by 'requiring sureties to be brought fl'om a grea.tq.istance, at great inconvenience and expense, to merely" sigQ a bail presence of the judge. From what has been said, it i,s manifestt.'tutt -the clerk of the district court did not admit the accused to bail as, counsel have erroneously assumed. The district judge : discharged ,each important jUdicial function in, connection with taking bail. He decided that the offense was bailable, ,and the 1UQ.0unt Qf: title, bond. llealso ordered the clerk to approve the bond when it should be signed by two sureties, This order addressed to the clerk was tantamount, to an approval, in advance of a signed by two sureties whpni'the clerk might accept as sufficient.: We are not prepared' to admit that the action taken by the district judge in the matter of thus approving the bond was even irreglilar:;but, concedihg that it was irregular, such action was induced bY the requestof the accused that the bond might be so exesecure his more immediate release; and, as we have cuted; so . here1;qfpre,beld; and still, think,it!was competent for the accused and his 81J,fflties to waive the irregularitY,aud they should be adjudged ito i'have done so;' In conclusion, it ,is proper to add that we have examined the additionallCases cited by counsel in'support of the proposition that the ball ,bond now in suit is null and void, for the reason that it was, sfgnedin presence of the derk, and not in the presence of the With refel'ence thereto it may be said that the cases cited cases where a person who was 'wholly unauthorized to, takEFbail for the particular offense assumed t& do so on his own motion, and to discharge each judicial funetion connected therewith, or they are cases'where the bail was takencorrtrary to the provisions of some express statute, which fact was held to render the obligation void. Oom, v. Otis, 16 Mass. 198; Chinn- v, Com., 5 J. J. Marsh, 29; Dickenson v. State; 20 Neb. 72, 29 N. W. 184; Clink v,Oitrcuit Judge, 58 Mich. 242, 25 N. W. 175; Butler v. Foster, 14 Ala. 328. We think, upon an examination of the cases, that none of thecitatioD.s in question are in necessary conflict with the views which we have expressed, and the principles upon which we have predicated our decis1Qn.The petition for a rehearing is accordingly denied. McEWAN BROS.. dO. v. WHITE. (Circuit Court, D. Connecticut. October 22, 1894.) No. 752. P
The, Mc;Ewan patent, No. 4\)2,927,-dalming, as a new article of manufacture, a superior from printed newspapers ground to a pUlp, aUd having the particles of printers' ink minutely subdivided: and uniformly distributed. so as to impart an even tint to the board,-was not· anticipated bypreviol/.s processes, in which the ink was utilized as part of the coloring matter by the use of an alkali which saponified the oil in the ink, after which the saponified ma.tter was washed out; it appearing that such process required additional expense, and also weakened thetlber of the board.
PAPER BOARD.
,M'EWAN, nROSiCO.: V. WHI'r]j;i.
571
This was a suit in equity by the McEwan Bros. Company against 'George L. White for infringement of a patent' Briesen 8;;: Knauth,for complainant. Gao. E. Terry, for defendant. TOWNSEND, District Judge. This is a suit upon letters patent No. 492,927, granted March 7, 1893, to Robert B. McEwan, Jessie 'L..McEwl:\,n, and Richard W. McEwan, for an improvem.ent in paper board. The object of the alleged invention was to obtain a superiorquality of paper board at a reduced cost. The specificati>on states that this is accomplished by such processes as subdivide .and preserve the permanent particles of printers' ink in newspaper -stock, so that they may be blended with the fibers of the paper without impairing the strength .of the fibers by bleaching out the ink. The claim is as follows: . "As a new article of manufacture, a paper board formed from printed newspaper, or the like, ground to a pulp, and having the permanent particles of the prinrers'.!nk minutely subdivided and uniformly distributed throughout the body of the board, whereby a smooth and even tint is imparted to tllO board."
Infringement is not denied. The only evidence in the case. is that 'Of one witness for the complainant. The defendant claims that cer· tain admissions made by him show that the patent is void for want of novelty. It appears that prior to the alleged invention paper board had been made from newspaper stock; in which the ink was utilized as part of the coloring matter. The process by which this was accomplished included the use of aualkali which "aponified the oil in the ink, and the saponified matter was then washed out. It is admitted that this process involved additional expense. It is not denied that the fiber of the finished product was weakened thereby. It would seem that this was one of the "more or less expensive attempts to bleach out the ink" referred to in the patent in suit, the objectionable results of which the patentee sought to obviate in his product. The patented product consists of paper stock ground to a pulp, and permanent particles of printers' ink so minutely and uniformly distributed throughout as to produce an even tint. The product relied upon as an anticipation is a paper pulp tinted by the coloring matter originally forming one of the oonstituents of the printers' ink. In the former there is mechanical disintegration; in the latter, chemical solution. With'Out other evidence that such product did not involve inventive skill, with the allegations of the patentee that. it was stronger in fiber and superior in quality, and the admission that it was produced at less expense, I think the complainant is entitled to the benefit of the presumption in favor of the validity of the patent. Let a decree be entered for an injunction and an accounting.
612
.FEDBRAL BEI'OB'XBB.
vol. 63.
BOWERS T. VON BOHMIDT.
(Olrcult Oourt, N. D. Oalifornia. JUly 23, 18M.) No. 10,244. L EXT,ENT OJ' CL4JX$..,..PIONEEB INVENTION DltEDGING MAOHINEI.
The B!>wers No. 318,859, . for dredging machine,' and No. 355,21)1; tor 'hydraulic dredgihgapparatUs,are valid, and cover inventions of . aploneetcbaraeter, and the claims areentitied to a broad construction. Two forms of centers of osclllation are described In the Bowers patents"viz.. one consistlngqt, a turntable rotating ina circular well in combination with two spUds or vertical auchors PasslJ;lg through apertures in the turntable; '.the other consisting of a siv,gle spud when the . turntable is made stationary. The claims which svecify, as one of the elements, "a center of oscillation," include and cover both forms, and not limited to the first form, and Bowers was not auticipated in the lattez: form by Angell or the defendant. BAME-FUNCTION4L CLAllI;S. OF OSOILLArtIOl'i.
&.
S.
The .element designated In the Bowers claims as ''a rotary excavator with Inward delivery" ill! not functional in form, but means a rotal'7. excavator of such construction as will produce an inward delivery·
.. BAME-RQTARY ExoAvA'1'08 WITH INWARD DELIVERY.
Two lorms of rotary excavators with Inward del1very are described In .the Bowers patents.-on9 containing' a.n inner chamber or shield, within the cutter pend, having au opening In the top for admission of the spoils; the other with said ill,Ile.t:.chamber or shield cut away until only enough remains to support the excavator and shaft. The claims containing the element, . ua rotary excavator with inward delivery," Include and cover both forms, aud are not limited to the first form. Where an applicant for a patent is the original and first inventor of a form Of device, but. his origin8.i .specification does not sufficiently describe it, .so as to entitle it to be claimed -therein, It is competent for him to amend' his specification so as to inclUde it, at any time prior to issuance of his patent, even though such amendment be made in reference to another patent, applied for and issued prior to the issuance of the applicant's patent, but subsequent to his invention. 'An apparent anticipation may be avoided by a complainant by proving priority of Invention over the alleged anticipation, and models or drawIngs, If suftlciently plain to enable those skilled In the art to understand them, are competent proof of such priority.
I. 8AlI1Il-AMlIlNDMlIlNT OF BPEOIFICATION IN PATENT OFll'IClIl.
.. B4P-ANTICIPATION..,...EA:RLY :MODlIlLSAND DRAWINGS.
'I.
SAMlIl-lNJI'RINGEMlIlNT.
.. SAMR-SUBSEQUlIlNT
A subsequent device may be an infringement of a prior patent not· withstanding the fact that such subsequent device is In itself an invention, A combination, to be patentable, must produce a different force or effect or result, In the combined forces or processes, from that given by their separate parts. There must be a new result by their union. If not so. it is only an aggregation of separate elements. The Bowers claims bear the test of all the definitions. They are true combinations. and not aggregations.
t.
SAMR-AOORBlGATION AND COMBINATION.
