'II'CLERY tl. BAKER.

841

Before ACHESON, Circuit Judge, and BUTLER and WALES, District Judges. ACHESON, Circuit Judge. After a thorough examination of this record, we fail to discover any ground for disturbing the decree dismissing the bill of complaint. We all concur in the conclusions of the circuit court, and in the reasons therefor expressed in its opinion. That opinion is so full and satisfactory that any further discussion of the case is needless. We therefore adopt the opinion of the court below as our own, and upon it we affirm the decree. Decree affirmed.
PETER WHITE SANITARY CO. v. N. O. NELSON MANUF'G CO. (Circuit Court, E. D. Missouri, E. D. April 14, 1894.)

This was a suit in equity by the Peter White Sanitary Company against the N. O. Nelson Manufacturing Company for infringement of three patents granted to Peter White for inventions relating to tank water-closets. The patents were No. 354,285, dated December 14, 1886; 363,566, dated May 24, 1877; and No. 425,921, dated April 15, 1890. C. H. Krum, for complainant. F. P. Fish, W. K. Richardson, and B. F. Rex, for defendant. THAYER, District Judge. After due consideration of this case the court is of the opinion that the only novel feature of construction disclosed by White's first and second patents, Nos. 354,285 and 363,566, consists in the respective devices shown in those patents for discharging the air from the chamber of the float-valve into the surrounding water in the tank in lieu of discharging it, as in the older tank-valve patented by Scott, into the atmosphere, through a pipe leading to the surface of the water. Barring this one feature, White's first and second patents were destitute of patentable novelty in view of the prior art. The evidence does not satisfy the court that the defendant has either made or sold tank-valves which embody the novel feature aforesaid of White's tank-valve; therefore it is not guilty of an infringement of either his first or his second patent. It is conceded by counsel that the proof does not show an infringement of White?s third patent, No. 425,921. A decree must accordingly be entered for the defendant, dismissing the complainant's bill.
McCLERY v. BAKER et at (Circuit Court of Appeals, seventh Circuit. October 1, 1894.) No. 133.
P"'TBNTS FOR INVENTIONS-NOVELTY-ORDER HOLDER.

I.etters patent No. 273,301, issued March 6, 1883, to James B. McCle1'1 and Edward C. Page, for an order holder, consisting of four rigid boards,

842

FEDERAlo REpqRTEn,

vQl. 63.

by pHaPle ,stiff steel clamp, pressed tightly over the bacK of the cover, so that the-bOlder wUl hold a single sheet of paper, are void for want of novelty.

Appealfrom the Circuit Oourtof the United States for the North· ern Division of the Nortberp])istl.'ict of Illinois. Suit by James B. McOlery against George E. Baker, William A. Vawter, and Frank M. Vawter to restrain the alleged infringement of a patent. Defendants obtained a decree. Complainant appeals. John H.Whipple, for appellant. Munday, Evarts & Adcoek (John W. Munday, of counsel), for ap· pellees. Before JENKINS, Circuit Judge, and BUNN, District Judge. BUNN, District Judge.. This suit is for the infringement of letters patent No. 273,301, issued March 6; 1883, to the oomplainant and one Page) ",ho transferred, his interest to the complainant. The claim oithe patent is:
HAn Order lJ,Qlder, consisting of four rigid boards, connected llY three pliable connectilWll ,pr, hinges, and .a clamp, adapted to fit over the' outside of the centralbqards when folded together." .

The'de'cisidn of the circuit: court dismissing the bill,though brief, covers the whole case. The court says: '
"In vie:\f,of',similar devices incomDlon use for similar purposes before this patent was applied 'for, it is impossible to find in this claim such novelty as is necessary to constitute invention, and the bill must be dismissed for want of equitY.",' .

This court has come to the same <;onclusion, and it may be un· to add anything to this b.rief opinion of the circuit court. It 'seems quite apparent, on lookipg into the testimony and exhibits, .that substantially the same device has been patented over and over again, and in use for vtU'j.:ous purposes for nearly a generation. There are, but two points in which this patent seems to prior dates, introduced in evidiffer at all from several patents dence. J:nain difference is in tlle method of pressing the papers or other things to be held between the boards used for covers so as to prevent their falling out until released for use. The com· plainant a steel clamp, five or six inches long, and slightly is pressed tightly over the back of the cover. In flexible, the variou,s .,9ther patents other devices are used, put all serving the of holding the of paper, or photographs, pictures, handkerchiefs, or other things, by means of friction, until the owner chooses to release them. In the Keech patent, which was prior to that in suit, being issued i111872, the clamp is composed of two elastic bands, one at the top. and the other at the bottom of the cover, passed over the adjacent ends of the two middle pieces so as to draw them together. In the Archer patent,' issued in 1876, there are the same four stiffoove:rs united by flexible material, which makelJ the joints flexible, as in complainant's patent and in several others. For the of clasping the covers together, screws are i.nserted through the middle pieces, with nuts which

9'

y'CLERY

v.

BAKER.

843

screw down over the covers, pressing them together; the sheets of paper where they would oome against the screws being notched at their edges. 'fhe papers are held between the covers by means of friction applied in this manner instead of by a clamp. In the Covert patent, issued in 1869, there are the same stiff boards, conneded by flexible material, and making the same flexible joints as in the complainant's device. The paper or papers are inserted between the covers and held by means of a "rivet,!' as it is called in the patent, but which, in fact, is very similar to other paper fasteners in common use. This is passed through the two middle pieces of the cover and through the papers lying between, and the endlf> turned over and pressed down to hold them. The Billings patent, issued in 1867, was an invention of an automatic blotter, arranged in book form. for oonvenient use upon a table or desk; and the invention oonsisted in the combination of the covers, the blotting paper, and a spring, or its equivalent, used to bring the paper and blotter together. But the' spring, instead of holding the covers together, holds them apart. The covers, being lined with blotting paper, are held open for convenience for the insertion of other written sheets to take up the superfluous ink. The device is very similar to the complainant's, except that the action is of an opposite character, the spring pressing the sheets apart instead of together, but it would apparently require only a very ordinary degree of mechanical skill to change the .device into that of the complainant's. And 80 with several other patents. The principal and only material difference is in the manner of pressing the boards together to hold the paperS. In the Eastman patent, issued in 1876, there is a spring clamp which squeezes the covers together to hold the sheet$, much like complainant's, though diffJ;trent in form. The one which the defendant is using varies from that of the complainant's nO more in principle than many of the devices shown in the patents. He presses his covers together by a steel-wire spring extending the entire length of the back, constituting the middle boards. If this fs substantially the complainant's device,-as no doubt it is,-it is scarcely any more so than those of the oth(lr previous patents referred to. The difference is merely a one, involving no invention. Any ordinary mechanic, or a person of common sense not a mechanic, and without the inventive faculty, would be fully equal to suggesting the change, They are all ver-y old devices, and it is a mere question of which operates most conveniently. The language of the United States supreme court in Atlantic Works v. Brady, 107 U. S. 192, 2 Sup. Ct. 225, seems applicable to this case.
"The design of the patent law is to reward those who make some substantial discovery or invention which adds to our knowledge and makes a in advance in the useful arts. Such inventors are worthy of all favor. It was never the object of those laws to grant a monopoly for every trifling device, every shadow ofa shade of an idea which would naturally DJild spontaneously occur to any skilled mechanic or operator in the ordinarY progress of manufactures. Such an indiscriminate creation of exclusiYe privileges tends rather to obstruct than to stimulate inventio·n."

844

FEDERAL REPORTER,

vol. 63.

.Tne other .difference be.tween the complainant's device and those of previous patents relates solely ·to the particular use to which it is put. Much stress is laid upon the fact that it is the only order holder eo nomine, and is intended to hold but one order, either on a single sheet or on several, and that it has introduced a better system of bookkeeping. This claim is founded upon the following statement in the patent: "Th4aholder is not intended to hold a. volume, ·but only a single order at
a time, on one or more, but not a great many, sheets of paper. The order is put in either by taking oJr the clasp, Which can readily be detached from the cov;er, and replacing it when the order is in, or by pressing the backs together on a small fulcrum placed temporarily on the rear edge of the

It is apparent from the testimony and exhibits that one of the differences between complainant's device and the ones previously in use is that the latter have a much greater degree .of adjustability. The complainant's rather stiff steel clamp in a single piece seems well adapted to holding a single sheet' or any small number of sheets between the covers. From the sample in evidence it would appelil-r that it is well adapted to hold, say, from one to ten sheets of paper of ordinary thickness, but not much more, thollgh, of course, it would only require a thicker clamp to give the boards a greater capacity, in which case it could not be used for a single sheet. The other devices seem better adapted to holding a greater volume of sheets, having a wider adjustability. The only limit on the screw device is the length of screw, which may be longer or shorter, and so with the ordinary paper-holder device. The elastic clamp made of silk ribbon also admits of a high degree of adjustabiiity, but after a time loses its holding power. But while these previous devices seem better adapted to holding a larger volume of paper, it is difficult to see why they are· not as well, or nearly as well, adapted to holding a smaller volume, or even a single sheet. And what invention is there, when so many devices are in existence adapted to hold many sheets of paper, in making another to hold fewer sheets, or a single sheet? If this constituted a material d.ifference amounting to invention, it would be difficult to find any infringement in the case, because the defendant's device in this particular of adjustability .is more like the former devices; the steel-wire spring clasping the back of the covers being much more elastic and therefore better adapted to holding .a large number of sheets than the complainant's device. We cannot think that these differences suggest any invention, being such as any ordinary mechanic, or any person not given to invention, would readily suggest. Nor does it constitute invention, when· so many devices are in use for holding sheets of music, photographs, pictures, and sheets of paper generally, to make another, operating upon similar principles, fOrthe particular purpose of holding commercial orders. AJ;ly device that will hold another sheet of paper will hold an order. The decree· of the circuit co.urt dismissing the bill of complaint is affirmed. .,

ROMER RAMSDELr, T.

co. 11. COMPAGNIE

GENF.RALE TRANS ATLANTIQUE.

845

HOMER RAMSDELL TRANSP. CO. v. COMPAGNIE GENERALE TRANSATLANTIQUE.

(Circuit Court, S. D. New York. 1.

May, 1894.)

PILOTB-NEGLIGENCE-KNOWI,EDGE OF CURRENTS.

a

Delay of the pilot of a steamship in reversing to avoid evident dans-er from her failure to maneuver in the usual manner, caused by an undercurrent, Is negligence, not mere error of judgment, although he may have supposed that the interruption of her movement was only temporary, for he is chargeable with knowledge of the currents.
NEGLIGENCE STEAMSHIP LEAVING NEW

SHIPPING-LIABILITY FOR TORT YORK.

An ocean steamship Is not negligent in backing out from her dock at New York to go out on the ebb tide, with only one tug to assist her in tUfntng in the river, where the tug Is a powerful one, and its use is continued as long as practicable, as this can be done safely, with proper care, and it Is customary to employ but one tug for the purpose.

8.

SAME-DUTY OF MASTER OF VESSEL IN CHARGE OF PILOT.

While the navigation of a steamship Is under control of a pilot, ber master Is not in fault for falling to interpose his authority to stop her. in order to avoid danger from her failure to maneuver as usual, caused by an undercurrent, where he suggests such danger to the pilot, and the pilot thinks It may be avoided without stopping; the case not being one of extreme peril or of incompetency on the part of the pilot. The New. York pilot law, giving the outward pilotage of a foreign ship to the pilot who brought her in, or, in case of objection, to another assigned by the commissioners of pilots, and subjecting the master and owner to penalties in case of refusal, and making refusal by the master a misdemeanor, is compulsory.

4.

PILOTS-COMPULSORY PILOTA.GE.

5.

ADMIRALTY JURISDICTION-DAMAGE TO PIER BY VESSEL.

Admiralty has no jurisdiction of a sult against either a vessel or her owner for damage to a pier by the vessel striking it, such injury not being a maritime tort. A shipowner is not liable at common law for damages caused by negligence of a pilot compulsorily employed.

,6.

SHIPPING-LIABILITY FOR TORT-NEGLIGENCE OF COMPULSORY Pn,oT.

This was an action by the Homer Ramsdell Transportation CQmpany against the Compagnie Generale Transatlantique, owner of the steamship La Bretagne, for damages to a pier, tried before a referee. Enoch L. Fancher and William H. Harris, for plaintiff. Jones & Govin (Edward K. Jones, of counsel), for defendant.
WM. G. CHOATE, Referee. This is an action at commOn law against the owner of the steamship La Bretagne for caused to the plaintiff's pier No. 42 North river, under the following circumstances: The La Bretagne was lying at her dock, No. 42 North river, on the 10th December, 1892. About five minutes after 8 o'clock in the morning, the tide being about the last of the ebb, the La. Bretagne was backed out of her slip in order to start on her voyage to Hayre. She was in charge of a Sandy Hook pilot. The tide being ebb, ber wheel was put hard a-port, and she was backed towards the west side of the river as far as it is usual or safe to bring her. A tug was to push her stern up stream, and her engines were started