Record and brief — William E. Clements, Appellant, vs. The Odorless Excavating Apparatus Company
Supreme Court brief1883
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JOG- CY /
Supreme Court of the United States
No. 136. OcroBER TERM, 1883.
—— ie. -- a
WILLIAM E. CLEMENTS, Appellant,
2S.
THE
ODORLESS EXCAVATING APPARATUS
COMPANY.
Brief for Appellant.
Oe ee o--—-—- -- --—- -~
HECTOR T. FENTON,
Counsel for Appellant.
PHILADELPHIA:
DUNLAP & CLARKE, PRINTERS, 55 NORTH SEVENTH STREET.
1885.
oo @~<8e
SupREME Court oF THE UNITED STATES
WILLIAM EK. CLEMENTS,
Appellant,
VS. No. 136.
The Opor.ess EXcAvaTING Oct. Term. 1883.
APPARATUS COMPANY,
Appellee.
STATEMENT OF THE CASE.
This is an appeal from a decree of the Cireuit Court of the
United States for the District of Maryland, by W. E. Clem-
ents, appellant, against whom a decree in equity for the pay-
ment of one thousand four hundred and sixty-six (1,566)
dollars and fifty (50) cents, and costs, and a perpetual injunc-
tion, has been entered, at the suit of the Odorless Excavating
Apparatus Co., appellee, and complainant below. The bill is
founded on Reissued Letters Patent of the United States, No.
6,962, dated February 29, 1876, granted to Lewis R. Keizer,
as assignee by mesne assignments of Henry C. Bull, the in-
ventor, and to whom the Original Patent was granted, June 6,
1871, for an apparatus for cleaning privies. The bill charges
infringement by appellant of the first and third claims of the
patent, in the use of an apparatus bought of parties who made
and sold it under Letters Patent granted to Scharf & Bradley;
9:
dated July 18, 1876, and Letters Patent to S. R. Scharf,
dated January 12, 1875; and by the decree the appellant. is
perpetually enjoined from using the same, and is «leereed to
pay a large sum of money as damages, with the costs of suit.
The answer contains a denial of infringement, and charges
that the patent is void for want of novelty; that the reissue is
void as not being for the same invention for which the original
was granted, as containing new matter and an unwarrantable
expansion of the claims of the Original Patent. The answer
also sets up former patents and publications showing all the
substantial features of the patented device in the same combi-
nations many years prior to the date of the alleged invention
by the patentee Bull; and appellant supports his denial of in-
fringement by the production and proof of Letters Patent for
the precise device used by him, granted to or owned by the
parties from whom he purchased the said apparatus.
SUBJECT MATTER OF THE PATENT.
Apparatus for the odorless cleaning of privy-vaults have
come into extensive use in the United States within the past
ten or fifteen years, superseding the old mode of cleaning by
bucket and shovel, and the essential clements of such appar-
atus consist of a pump, a receiver, and a deodorizer. Many
patents have been granted in the United States for various forms
of such apparatus, all of which necessarily include these three
elements. They followed the introduction of the same system
in Europe, evidenced by three French Letters Patent—Cher-
rier, dated Dec. 27, 1844, (see pp. 187, 190, 240, 242 of
record); Lesage, dated Dec. 11, 1855, (see pp. 192, 197 of
record); and Courdier, dated May 22, 1860, (see pp. 166,
167, 216 of record). The system in the United States is
shown in the patents beginning with Straus, dated January
28, 1868, (see page 204 of record); followed by Walter, dated
5}
May 6, 1874, (see page 201 of record); Bull, of June 6,
I871, (see page 29 of record); Scharf, dated January 12,
1875, (see. page 177 of record); Frazier, dated October 5,
1875, (see page 183 of record); Bradley & Scharf, dated July
18, 1876, (see page 180 of record); and others not necessary
to be considered. Some of these machines operate. on the
‘forcing’ system, that is, the matter is lifted by the air pump
and forced through tt into the receiver; and in this category
are embraced the Lesage, Courdier and Straus; all the others
mentioned above operate on what is known as the ‘ vacuum?’’
system, that is, the air pump creates a vacuum in the receiver,
into which the material is drawn by atmospheric pressure.
It is on this latter principle that the appellee’s device, as well
as the appellant’s apparatus, are constructed and operate.
It seemed to be important that the receiver into which the
material was forced or pumped should be of convenient size
and form to enable the material to be carried away in the re-
ceiver without re-transfer into another receptacle; and an ex-
unination of these patents shows that all the patentees had
this desideratum in view in the construction of the receiver,
some mounting it on wheels, others making it small and in the
shape of a barrel or cask. It was not material whether the
deodorizer (which contained either chemicals or burning char-
coal) was put upon the pump or upon the receiver. It is ap-
parent that the character of the pump, at least so far as respects
the machines operating the vacuum system, was not material,
any ordinary air exhaust pump being all that was necessary.
Suitable pipes, tubes or similar connections between the pump
and the receiver and the vault to be cleaned complete the ap-
paratus, in its absolutely essential features. Check valves, float
valves, sealing caps, hoisting apparatus, special means for
adapting the apparatus to particular uses, and other attach-
ments were added to some of the machines, and which will be
fully discussed hereinafter, so far as they appear to be material
to the issues involved.
4
The record discloses that the appellee is a corporation, own-
ing at least two of the patents mentioned, viz.: Straus’, which
operates on the “forcing’’ system; and Bull’s (the patent in
suit), which operates on the ‘‘vacuum”’ system, and have put the
former into extensive use, though few, if any, of the latter have
ever beep made or used, so far as the fact could be proved by
negative evidence, and not denied. (Testimony of Boyle, page
104 of record, Bradley, page 109.) The appellant, on the
other hand, is one of a large number of persons in the business
of cleaning vaults, who have been sued for alleged infringe-
ment of the Bull Patent, in the use of apparatus manufactured
by and purchased of one Jerome Bradley, who constructed it
under and in accordance with two several Letters Patent,
above-mentioned, granted to J. Bradley and to Scharf & Brad-
ley; both of these patents involving the same general features
of construction and operation. And these machines, made by
Bradley, the record shows (page 109), have come into extensive
use, and are formidable competitors of the appellee’s “ forcing ”
apparatus of the Straus Patent.
The apparatus exhibited in the drawings of both the Orig-
inal and Reissued Bull Patent (see pages 29 and 31 of record)
is described in the former as consisting of a vault, a cask
having an induction passage and funnel at its lower end, with
a check-valve, for closing the passage; an air-opening at its
upper end, with a float-valve; necks, for sealing caps, at each
passage, and shoulders, for suspending it; an air-pump and a
deodorizing furnace. And these elements were fully and
clearly described in that patent, and comprised within two
combination claims—the second being the same as the first,
including the vault and pump as additional elements. The Re- :
issued Patent, with the same drawings (and a certified copy :
of the model filed in the Patent Office shows it to be fully and
correctly delineated in both drawings), contains a very different 1
description of the same apparatus, the language of the original
being so changed and added to, that it conveys a wholly different
D
meaning and imparts a different understanding of the scope
and character of the alleged invention. And this description
is followed by three claims, two of which, standing alone, and
read in connection with the original specifications, could
scarcely be recognized as belonging to that patent; the second
only (which it is not pretended that the appellant has in-
fringed) being substantially one of the claims of the Original
Patent.
THE ISSUE.
Upon the first and third claims of this Reissued Patent the
issue of infringement was made. These claims are as follows:
“1. A privy-vault cleaning apparatus, consisting of an air-
‘‘pump, a deodorizer, and suitable tubular connections, in
‘combination with an independently movable receiving-cask,
‘‘having an induction passage or opening, and also an air-
‘opening for connection with the air-pump, and provided with
‘‘screw-necks at each opening for receiving sealing-caps or
‘covers, substantially as described, whereby the movable cask
‘may be located in any desired position with relation to the
‘vault and privy, and the pump and deodorizer located in
‘any desired position with relation to the vault, privy, and
‘cask; and also, whereby the casks, when filled, may be
‘‘handled as is usual with filled casks, as set forth.”’
“2. The combination with a portable night-soil cask, of a
‘‘ float-valve. located at the air-passage, substantially as de-.
‘scribed, whereby the fluid-matter is prevented from entering
‘the air-passage, and clogging the suction air-pipe and pump,
‘‘as set forth.”
To prove infringement, the appellee offered in evidence a
model of the Bradley pump, which was admitted to correctly
represent appellant's apparatus. And it was proven to be
made under, and in accordance with, the Bradley, and Bradley
i
t
;
;
OE. LCE <a
cites
4
The record discloses that the appellee is a corporation, own-
ing at least two of the patents mentioned, viz.: Straus’, which
operates on the “forcing” system; and Bull's (the patent in
suit), which operates on the ‘*vacuum’”’ system, and have put the
former into extensive use, though few, if any, of the latter have
ever been made or used, so far as the fact could be proved by
negative evidence, and not denied. (Testimony of Boyle, page
104 of record, Bradley, page 109.) The appellant, on the
other hand, is one of a large number of persons in the business
f cleaning vaults, who have been sued for alleged infringe-
ment of the Bull Patent, in the use of apparatus manufactured
by and purchased of one Jerome Bradley, who constructed it
under and in accordance with two several Letters Patent,
:bove-mentioned, granted to J. Bradley and to Scharf & Brad-
ley: both of these patents involving the same general features
of construction and operation. And these machines, made by
Bradley, the record shows (page’ 109), have come into extensive
use, and are formidable competitors of the appellee’s “ forcing ”’
apparatus of the Straus Patent.
The apparatus exhibited in the drawings of both the Orig-
inal and Reissued Bull Patent (see pages 29 and 31.of record)
is described in the former as consisting of a vault, a cask
having an induction passage and funnel at its lower end, with
a check-valve, for closing the passage; an air-opening at its
upper end, with a float-valve; necks, for sealing caps, at each
passage, and shoulders, for suspending it; an air-pump and a
deodorizing furnace. And these elements were fully and
clearly described in that patent, and comprised within two
combination claims—the second being the same as the first,
including the vault and pump as additional elements. The Re-
issued Patent, with the same drawings (and a certified copy
of the model filed in the Patent Office shows it to be fully and
correctly delineated in both drawings), contains a very different
description of the same apparatus, the language of the original
being so changed and added to, that it conveys a wholly different
—
— 4
5
meaning and imparts a cifferent understanding of the scope
and character of the alleged invention. And this description
is followed by three claims, two of which, standing alone, and
read in connection with the original specifications, could
scarcely be recognized as belonging to that patent; the second
only (which it is not pretended that the appellant has in-
fringed) being substantially one of the claims of the Original
Patent. | |
THE ISSUE.
Upon the first and third claims of this Reissued Patent the
issue of infringement was made. These claims are as follows:
“1. A privy-vault cleaning apparatus, consisting of an air-
‘*pump, a deodorizer, and suitable tubular connections, in
‘‘combination with an independently movable receiving-cask,
‘* having an induction passage or opening, and also an air-
‘opening for connection with the air-pump, and provided with
‘‘screw-necks at each opening for receiving sealing-caps or
‘covers, substantially as described, whereby the movable cask
‘‘may be located in any desired position with relation to the
“vault and privy, and the pump and deodorizer located in
‘‘any desired position with relation to the vault, privy, and
‘cask; and also, whereby the casks, when filled, may be
‘handled as is usual with filled casks, as set forth.”’
“2. The combination with a portable night-soil cask, of a
‘‘float-valve located at the air-passage, substantially as de-
‘scribed, whereby the fluid-matter is prevented from entering
‘the air-passage, and clogging the suction air-pipe and pump,
‘Cas set forth.”
To prove infringement, the appellee offered in evidence a
model of the Bradley pump, which was admitted to correctly
represent appellant's apparatus. And it was proven to be
made under, and in accordance with, the Bradley, and Bradley
{}
& Scharf Patents. Prima facic therefore, there exists a pat-
entable difference—so adjudicated by the Patent Office in
}
rranting the patents for it—between it and the apparatus pat-
y the reissue in suit. ‘To sustain the charge of infring-
ment the appellee called Henry B. Renwick as an expert, in
hose hands the Reissued Patent and the model of appellant's
pparatus was placed. The latter was so very much unlike the
Ball apparatus, as shown in the drawings of the patent, that it
yme necessary for the expert to explain and argue, (to bring
within the claims mentioned,) that the Bradley receiver,
ch cannot be lowered into a vault, and which is to be used
od filled while standing on end, with induction and eduction
weages at its upper end, and a single valve to the eduction
assage only, was tlhe same as the Bull cask, intended, as
shown. to be lowered into a vault. and so constructed with an
mnduction passage and a flap valve (without which it could not
be operated), an air opening at its upper end, necks for caps at
each end, and shoulders or lugs for suspending it. And, fur-
ther, that the rigid funnel (called for the first time ‘‘a tubular
connection in the Reissued Patent) affixed to the bottom (and
must necessarily be at the bottom) of the Bull cask was to
be so understood and read that it might mean a hose capable
f being lowered into the vault and connected with the top of
» cask which had no induction passage at its bottom and no flap
valve, and was intended to be, and is only capable of being,
»perated outside the vault. In short, that the Bull cask, which
bears no external resemblance to the Bradley receiver, and
was, as is plain at first sight, constructed, and intended to be
operated in an entirely different manner, must, under the stress
of the strong words ‘independently movable receiving cask ”’
found for the first time in the Reissue Specification) be held
to be embraced within those exceedingly flexible words. But
the value of this opinion of the appellee's expert is to be deter-
mined, to a great extent at least, by what is found on examin-
ation of the history of the art, and it discloses that the
French Patent of Cherrier and the United States Patent of
7
Walter, both operating on the vacuum system, not to mention
the Lesage, Courdier and Straus Patents, operating on the
‘‘ forcing’ system, show all the same essential elements of an
odorless excavating apparatus, in substantially the same com-
bination, for the same identical purpose; viz.: a pump, a re-
eeiver, a deodorizer, and tubular connections. The construe-
tion to be given to these claims of the Reissued Patent will,
of course, be controlled by the state of the art at the date of
the original patent.
The issue of novelty was raised m the answer, and the prior
patents, together with publications and proofs, were put in evi-
dence by the appellant. These go so far as to necessarily over-
throw the appellee’s patent if it is construed broadly to cover any
combination of the elements last above mentioned, in which the
words ‘‘ independently movable ” can be applied to a receiving
“ask of a vault cleaning apparatus; but if the newly imserted
and flexible terms of the amended description and the Reissue
claims are construed to apply only to the special construction
shown in the drawings and described in the specifications, as
they must necessarily be to save the patent, then it will be
conceded that they do not anticipate the first and second claims
of that patent; though fully anticipating the third.
A distinct issue was raised by the answer as to the validity
of the Reissued Patent. It is averred to contain new matter
and a wholly unwarranted expansion of the claims of the
Original Patent, and, in brief, to be for a different invention
from that for which the original was granted. Aside from the
ground that, as the reissue is for expanded claims and. sub-
combinations, it could not lawfully be reissued, after a delay of
five years, to cover by sweeping claims, apparatus such as used
by appellant, and various useful modifications and improve-
ments patented in the meantime, which confessedly the original
claims and description of invention would not and could not be
construed to include.
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An additional issue was raised affecting the validity of the
reissued claims alleged to be infringed, viz., the first and third,
that the first was void, in that it did not embrace an operative
combination ; and the third, also, for that the float valve being
old, there was no invention or patentable novelty in locating
it ina portable night soil cast at its air passage, over combining
it with a cistern, or with vessels to which steam whistles were
attached, or vessels containing water-induction passages, all of
which were proven, and indeed were well known to be, old.
Proofs were taken under all these issues, consisting, enter
: -)
alia, of prior patents and publications, testimony of witnesses
as to prior use, the Original Bull Patent, a certified copy of
the model filed in the application, the file and contents of the
application for the Reissued Patent, the testimony of experts, ’
and the patents under which appellant’s apparatus was con-
structed.
4
INTERLOCUTORY AND FINAL DECREES.
The case having been heard on the pleadings and _ proofs,
an interlocutory decree was entered in favor of the complain-
ant, sustaining the Reissued Patent, and finding the fact of
infringement against the appellant. Thereupon a_ perpetual
injunction was awarded, as prayed for in the bill, and the
cause referred to a Master, to take an account of profits and
damages. (For decree, see page 266 of record, and the opinion
on which it was based, on page 265.)
As matter of information here, this opinion is of value only
in stating the conclusions of the learned Judge on the question
of novelty of the subject-matter of the claims; the other de-
fenses, viz.: the validity of the reissue and the question of in-
fringement, being disposed of in a few lines, in a general way,
based on a prior adjudication, without reconsideration under
the new light and additional proofs herein adduced.
{)
Before the Master, profits were waived and damages asked
for, based on a royalty or license fee for the number of loads
of material removed by such apparatus. Upon the testimony
offered, the Master reported as damages the sum of $1,446.50.
It seems that the defendant failed to file any exceptions to this
report, or did not file them in due season: and on August 2,
1880, a final decree was entered (see record, page 279), con-
firming said report of the Master, adjudging to the appellee
the said sum so found as damages sustained, with costs, and
awarding execution therefor; whereupon appellee prayed for
an allowance of an appeal, which was granted, and the injunce-
tion suspended pending the same, upon the entering of security.
ASSIGNMENT OF ERRORS.
The opinion of the Court below, on which the interlocutory
deeree for an injunction and account was based, treats only in
detail of the question of novelty. It supports the reissue on
the strength of a previous adjudication by another Judge,
without stating any reasons, and, having sustained the broad
claims, necessarily solves the question of infringement in the
affirmative.
First.—The learned Court erred in broadly construing the
first claim of the Reissued* Patent, which is for a combination
of the several clements therein mentioned, viz. : a pump, a de-
odorizer, a movable receiving cask with induction and air open-
ings, with valves to the same, and screw-necks, and suitable
tubular connections, all of special construction, and peculiarly
arranged and combined, to be for a combination of such parts,
whether the pump was attached to the deodorizer or not ;
whether the receiving cask had a check valve, or any valve, at
the induction opening ; whether the receiving cask was differ-
ently constructed and operated, or not, so that it was separate
and movable, in contradistinction to a cask which, though
movable, was not separated from the pump; whether the cask
2
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10
was intended to be lowered into the vault, or operated outside
of it (though it is evident on mere inspection that a receiving
cask must be differentiy constructed in several material respects
if intended to be lowered and used inside a vault from what it
would be if used outside); whether the rigid funnel pipe of the
cask (called in the reissue a ‘suitable tubular connection ’’)
be rigid and have joined to it a flap valve, and be tempo-
rarily screwed to the dase of the cask (where it must necessa-
rily be with such a device); or whether it be a hose connected
to the top of the cask, and without any valve, (though the
Patent Office required the applicant to erase the word. * flex-
ible,”’ as applied to this rigid funnel connection, in the amerided
specification filed with the application for his Reissued Patent).
Second.—The learned Court erred in finding that the appa-
ratus used by appellant was embraced within the first claim of
the Reissued Patent; because it has no such eask “with an
induction passage or opening .’. . substantially as described ;”
nor any “suitable tubular connections . ... substantially as
described ;"’ nor any cask to be lowered into a vault; nor any
rigid funnel pipe with a check valve affixed, to be temporarily
screwed to the base of the cask, because the words of the claim,
‘‘ independently movable receiving cask . . . substantially as
described,’” mean (and can only mean, in view of the state of
the art as shown) a cask separated or separable from the other
parts and movable in the sense of being lowered into the vault,
and having the peculiar pipe and valve mentioned, to enable it
to be operated in that way, as shown in the drawings of the
patent, and described in the body of the specification as oper-
ating in that way, no other mode of operation being even sug-
gested in that instrument. :
Third.—The learned Court erred in not dismissing the bill,
because the charge of infringement was not proved by any
competent or sufficient evidence. The allegations of the bill
in that respect were denied in the answer; and the proofs ad-
duced were insufficient to overcome the deniat.
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1]
Fourth.—The learned Court erred in sustaining the first
claim of the Reissued Patent, because if construed broadly
the combination therein claimed was clearly anticipated by the
prior patents produced and put in evidence.
ifth.—The learned Court erred in sustaining the third
claim of the Reissued Patent, because the combination therein
claimed (the clements being confessedly old, and the com-
bination also being old as applied to close a water or steam
opening), it involved no vention to apply the same arrange-
ments of parts to close an az passage, or rather to prevent
water passing an opening connected with an air passage.
Strth.—The learned Court erred in sustaining the third
claim of the Reissued Patent, because the combination therein
claimed is substantially anticipated in the prior patents, pub-
lications and exhibits produced. There being no substantial
difference or patentable novelty between applying such an ar-
rangement to close an air-pipe of a night-soil cask, and apply-
ing it to close a steam, air, or water-pipe in a boiler, cistern, or
ram, in both cases to prevent water or semi-fluids entering such
pipe.
Seventh.—The learned Court erred in sustaining the first
and third claims of the reissued patent as valid (the second
claim not being involved), because they respectively cover and
claim sub-combinations of the entire combination of elements
claimed in the Original Patent; and whatever right to the
same, if any, the patentee Bull originally had was wholly
lost, abandoned and waived by laches in neglecting for over
five years to apply for a reissue of his patent claiming such
sub-combinations ; and adverse rights having accrued in the
meantine.
Vighth—The learned Court erred in decreeing the said Re-
issued Letters Patent to be a good and valid patent, because
the specification and claims thereof contain new matter wholly
OA Ted at Bal
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SY oe SIGIR Ras SS Te Le a
12
unwarranted by anything contained in the Original Patent or
the file and contents of the application therefor or of the
model filed therewith.
Ninth.—The learned Court erred in construing the element
‘suitable tubular connections,’ in the first claim of the re-
issue, to include a /ose connecting the vault with the top of a
differently constructed receiving cask and used without a check
valve, (and in consequence these parts operating differently),
because the file and contents of the application for the Re-
issued Patent shows (see record pages 218 and 228) that the
Examiner objected to the word ‘ flexible,”’ used in connection
with the words ‘tubular connections,”’ in the descriptive parts
and the first claim of the amended specification filed, as new
‘matter not shown in the original application or suggested
therein ;”’ and the applicant then erased the word ‘ flexible”
in both the description of invention and first claim. He now
asks the Court, in effect, to restore that word by implication
and construction, in order to bring appellant’s device (in which
a flexible hose connection with the vault is used) within the
terms of that claim, and to give to it a meaning which he de-
liberately disclaimed for it, on objec tion by the Patent Office,
and in order to get his patent.
Tenth.—The learned Court erred in sustaining the ap-
pellee’s Reissued Patent as valid, because it is not for the —
same invention as that for which the Original Patent was
issued. It cannot be denied that by no stretch of construc-
tion could the appellant’s apparatus be held to infringe either
claim of the Original Patent.
The state of the art, and herein of the novelty of the pat-
disclose
date of the original
that
Every one of the three essential elements of an odorless ex-
excavating apparatus, viz. :
of that patent, consists '
cask, having certain attachments to operate it in a particular
discarded float »
soil cask ; the urst claim bemg for an ** independently movable
an
tle
patent,
confined
claims of the Reissued Patent.
advanced
thit
POINTS OF ARGUMENT.
The pricr patents and publications
state
the -field of invention
within
Europe, and also in the United States.
(which latter element, any one familiar with
Orleans, where the inventor lived, knows is quite necessary there).
in that instrument the second
he
ented combinations, and the consequent construction to be given
to the claims of the Reissued Patent.
evidence
the
art
Harrow
pump, deodorizer, and receiver,
had been previously used in combination for many years in
It was, therefore,
only open to this inventor to devise some special form of one
or more of these parts or some special combination of them.
What he did in this respect is fully, clearly, and accurately
described in the original patent, by reference to which it is
found that his whole invention, fully covered by the two claims
of a peculiarly constructed receiving
manner; * the combination of such cask and a suction-pump,
with a peculiarly constructed ‘‘ metal or water-tight ”’ vault ;
These claims the inventor is clearly entitled to, so far as the
record discloses anything to the contrary ; but such are not the
claim of the original patent is omitted altogether, the original
first claim appears as the second claim of the reissue with one of
its elements (the float valve) discarded; and the thzrd claim of the
new patent is for a combination of two of its clements, viz.: the
‘ve of the second claim, and a portable night-
receiving cask,”’ having an induction passage and an air pas-
soil of New
14
sage, a deodorizer, an air pump, and ‘suitable tubular connec-
tions ’’ between the pump and receiver and between the latter
and a vault. Every clement of his first claim had previously
been used in such apparatus, including the ‘ independently
movable receiving cask,”’ and, in combination for such purpose,
are found and illustrated in the prior patents produced. Those
operating on the ‘ forcing system,’ being the French Patents
of Lesage (pages 192 and 197 of record), the French Patent of
Courdier (page 201 of record), and the Straus United States
Patent (page 204 of record). The last named patent describes
and shows in combination for cleaning privies: 1, an mndepen-
dently movable receiving vessel with an induction passage ; 2,
a force pump; 3, a deodorizer; 4, suitable tubular connections.
[t was argued in the court below that, although all the parts
were here shown in combination for the same purpose, the
pump Was a force pump end not an ar pump; but it might be
argued, with much show of reason, that a mere transposition of
the tubular connections between the parts, involved no inven-
tion, (viz.: placing the receiver between the pump and _ the
vault, or placing the pump between the receiver and the
vault), any well known form of double-acting pump answering
the purpose for either forcing or suction only, and: no special
pump being described or claimed in the appellee’s Reissued
Patent. This is clearly shown by an expert, John F. Cook,
page 104 of record. The Straus Patent (page 205) describes
the receiver as “a portable air-tight reservoir or receiver ;”
and an inspection of the drawings (page 204) shows to every
one at a glance that it needs but a mere transposition of the
privy pipe from the pump to the receiver to make it a “vacuum”’
apparatus. Such a change does not involve invention.
sut, it is not alone in these machines operating on the
‘forcing system,” that the patented device is substantially
shown. It is found operating on the ‘‘vacuum system”’ in the
French Patent of Cherrier, dated December 27, 1844 (pages
, and 242, of record), and United States Patent to
POO. 102
Me sci
S
Mh assis
4°
15
J. P. Walter, dated May 6, 1862 (page 201 of record). In
the former is found the air-pump, deodorizer, a plain barrel or
cask (serving as a final receptacle for the foceal matter), the
latter being connected by a hose with a receiver, having in-
duction and eduction passages placed between the vault and
the cask, the material being drawn by atmospheric pressure
into the air-exhausted receiver, and emptying out of it into
the cask or barrel, through a hose connection between them.
The “receiver” of this patent is of special construction and
mounted on a frame; and Bull's is of special construction and
hung on a tackle to be lowered into a vault. But in the
former it is stationary, and a hose-connection is established
between it and the vault. Ifthe Reissued Patent is to be con-
strued broadly to cover a pump, a deodorizer, hose-connections,
and any kind of a separated and movable cask, this reference
defeats it; for no one can contend that it constitutes a patent-
able difference, or involves invention to connect the final re-
ceiving cask of the Cherrier apparatus directly with the vault,
and dispensing with the intermediate receiver, or that the
intermediate receiver of the Cherrier Patent is not the sub-
stantial equivalent of the “independently movable receiving
eask’’ of the first claim, if that claim is to be construed to
mean any kind of a cask having an induction-passage and an
air-opening (both of which the Cherrier receiver has), and not
forming part of the pump or the deodorizer; for ‘ independ-
ently movable” means, and can only mean, in this claim,
separated or separable from, and capable of being moved, in-
dependently of, the other parts of the apparatus. The United
States Patent to J. P Walter, above referred to, shows in like
manner all the elements in the same combination, as_ the
appellee insists upon having the claim construed, the only dif-
ference in construction being that the pump, the deodorizer,
and the tank or receiver, are all attached to each other on the
truck of a carriage; but it constitutes no invention or patent-
able difference to separate them, or place them separately on
the truck of a carriage or on the ground. No difference in
PEC Lag ARIS RE cat TE Ute A ga pa Se ye et epetaae
ee SOP cae) pee >
OUST tere RRO ery Om
CRONE cet. mata —
a SE
OR ARRON Ale NR BNA PS Pe a SS
LOB syste
airere
16
operation of the parts would be produced by putting the tank
on 2 separate carriage, or on a separate part of the same car-
riage from the air-pump. ‘The result (¢. ¢., cleaning the well
by drawing the material into an exhausted receiver by atmos-
pheric pressure) is preciscly the same, and surely the invention
does not consist in reducing the size of the tank to that of an
ordinary cask or barrel.
It would be unprofitable to turther elaborate this branch of
the case, for it is clear that Bull’s invention did not consist in
any kind of movable cask or independently movable cask,
with any kind of vault connection, and combined with an air-
pump and deodorizer, all these parts being very old, both sepa-
rately and in combination, but does consist of a deodorizer and
pump, combined with a special construction of recewver or cask,
having the several attachments constituting its peculiarity, and
designed to be lowered into and operated within the vault.
Though the claim does not mention the check-valve, or the
float-valve, or the suspending-shoulders, or the air-tube between
the cask and pump, the words “substantially as described ”’
imply all these, and ‘‘ the Court will add to a claim all those
parts which are essential to the operation of the elements
named in the combination,’ Irwin vs. Dane, O. G., vol. 9, p.
H42. This is the only construction to be given to it to save it,
if not otherwise avoided by the inherent invalidity of the re-
issue: otherwise it must fall before the overwhelming force of
the prior references.
The second claim of the reissue, (for the special construction
of the receiving cask), is not in controversy; the bill does not
charge infringement of that claim, and it is admitted in the
proofs, that defendant does not infringe it.
The third claim of the Reissued Patent remains to be brief-
ly considered. It is for a sub-combination, and consists of two
elements only, @ float valve, and @ portable night soil cask.
It is proven and conceded that both elements are old, and also,
17
that both are old 2m combination, to close a water or steam -
passage, but not to close an air passage. ‘This is a refined dis-
tinction, without a substantial difference. If, as shown in the
proofs, a float valve has been used with a cistern or hydrant to
close a water passage, or to make a closer analogy, a float valve
is applied to a boiler, to rise or fall on the water, and close or
open a steam whistle, it does not require invention or constitute
patentable difference, to substitute a cask for a boiler, a semi-
fluid for a limpid fluid, or an air port for a steam port. The
prior references, all clearly showing the substantial equivalent
of this combination, it is not necessary to refer to at length.
They consist of the patents of Heald, Patric, and Berryman,
(record, pp. 207, 209, 215), and other references. From the
consideration of these, it appears that a float valve per se, is
old; that such valves applied to close enduction pipes, are old;
for opening eduction steam pipes, are old; to stop discharge
pipes, are old; and their use was in cisterns, in air compressing
apparatus, in tanks, in hot wells, in steam boilers, to deal with |
water, with steam, and to close all sorts of outlets and inlets.
It is immaterial whether it be considered that this combination
is anticipated, or that, in view of the state of the art, it in-
volved no invention to apply it to shut off semi-fluids from an
air opening in a night soil cask. Patentability is a question
for the Court (Dunbar vs. Myers, 94 U.S. 197.) At the most
it is the application of the old and well-known float valve to a
new, but analagous use.
2. Tuer ORIGINAL AND THE RetIssueD PATENTS, AND A
COMPARISON OF ONE WITH THE OTHER.
The original patent was granted to Henry C. Bull, June 6,
1871. It passed to the appellee by assignment, dated October
4, 1875 (see record, page 236), who reissued it in the name of
one of its officers, Lewis R. Keizer, on an application filed
January 11, 1876, the Reissued Patent being dated February
29, 1876. The history of the patent is a curious one, as de-
>
18
tailed in the testimony of Bull, examined by the appellant
(pages 100 and 101 of record). The application and _ specifi-
cation for the reissue were taken by Mr. Keizer, post haste,
after he obtained title, late in the fall of 1875 (see record, page
101) to Mr. Bull, in New York, who, without reading them,
signed and swore to the application, at the request of Mr.
Keizer (record, page 101); and on this the reissue was ob-
tained. A comparison of the original and reissue specifications
discloses a very great abuse of the privilege of reissue. They
differ materially in the statement of what the invention con-
sists of, in the description of the drawings, in the description
of the apparatus, in the description of the mode of operation,
and in the claims (see pages 29 to 58 of this brief, where the
two specifications are printed side by side, and their differences,
in essential matters, noted by italicized letters).
The extent of the identity of the invention in the Original
and Reissued Patents is to be détermined from their face by a
mere comparison, notwithstanding what was said in Batten vs.
Taggart, 17 How., 74, and consistently with Bischoff vs.
Wethered, 9 Wallace, 812, and according to the rule laid down
in Seymour vs. Osborne, 11 Wallace, 545, and Powder Co. vs.
Powder Works, 91 U. 8., 154; that is, if it appears.from the
face of the instrument that extrinsic evidence is not needed to
explain the terms of art, or to apply the description to the
special matter, so that the Court is able from mere comparison
to say what are the inventions described in each, and to affirm
from such comparison that they are not the same, but different,
then the question of identity of invention is matter of law for
the Court.
The original application was filed under the act of July &,
1870, which required a written description of the machine in
full, clear, and exact terms, with distinct claims of the part,
improvement, or combination claimed as new. The require-
ments of the statute have been complied with. The Original
Patent describes the alleged invention in full, concise, and
AO HEE TS a
19
exact termis, with distinct claims; and there is no language of
doubtful meaning, or incomprehensible in any part of it. No
part of the description is defective or insufficient ; and.if there
had been any error in the specification—which there was not—
there is nothing in the record to show that the error arose from
inadvertence, accident, or mistake. The requirements of the
statute are essential, are intended to correct honest mistakes,
and not to cover up subsequent inventions, and are not an-
swered by the action of the Commissioner in granting the re-
issue, but are subject to the inspection, consideration, and
determination of the Court.
Gill vs. Wells, 22 Wall, 1.
Russell vs. Dodge, 93 U.S., 460, is authority for the propo-
sition, and is so cited in Klein vs. Russell, 19 Wall., 48, that
where the claim of a patent is valid, and the descriptive part
of a specification is sufficient to support it, the patent cannot
lawfully be reissued.
That the original specification claimed fully all that Bull,
the inventor, or his assignees, had any right to is clearly shown
by the proofs and the testimony of Bull describing his inven-
tion, on pages 99 and 100 of record; and that as appellant’s
apparatus, shown in the Bradley, Frazier, and Bradley &
Scharf Patents, (pp. 177, 180, 185 of record), had been in
use some time prior to the application for reissue, and did not
infringe the claims of the original, that the evident purpose
and object of the surrender and reissue was to fraudulently
enlarge the claims and alter the descriptive parts of the speci-
fication, to include the appellant’s apparatus. This is indi-
cated also by a few of the ambiguous words of the reissue,
considered in connection with appellant’s apparatus, notably
‘tubular connection,’ instead of ‘‘funnel,’’ to cover the hose ;
the patentee even going so far as to use the word ‘ flexible”
before the word “tubular,” in the application as filed, which,
however, was so bold an attempt to insert new matter that the
4p BN Le ene EI RO OI BE AO IEE ELE AEG IN EI CaS rN
20)
Patent Office required him to erase the word, both from the
description and the claim; again, in the words ‘ independ-
ently movable receiving cask,’ as applied to the receiver ;
these words being so indefinite that they could readily be con-
strued to mean appellant’s receiver; also, the words ‘‘receiv-
ing cask, having an induction passage or opening,’ instead of
a receiver with an opening at its bottom, and provided with a
check valve; which latter language would not answer (though
the former might) as a description of appellant’s apparatus,
which has no induction passage at the bottom nor any check
valve.
There is no suggestion or intimation in the original speci-
fication that any less number of elements named in either of
the two combination claims of that patent may be embraced
in one or more sub-combinations, and such a suggesticn is es-
sential to the validity of a reissue containing such sub-com-
binations.
Miller vs. Brass Co., 104 U. S., 350.
The second claim of the Original Patent, which claim in-
cluded the specially constructed vault A, as an clement of the
combination, wholly disappears in the reissue, and the first
claim of the original is expanded and enlarged into three sub-
combination claims, the first of which, if appellee’s construc-
tion is given to it, would be for a wholly different invention,
and would be more appropriate in the Bradley, Scharf &
Bradley, and Frazier Patents, and much more applicable to
the devices found described therein, than in the Bull Reissue.
’
As respects ‘‘new matter’ in the reissue specification, pro-
hibited by the statute; it was required by law as antecedent to
the granting of a patent, that the inventor should furnish a
model which shall exhibit the several parts of his invention,
and having in this instance furnished a model of a vault and a
cask, each of peculiar construction, and nothing else whatever,
he is estopped upon reissue from describing his particular vault
+ ren nara
21
as any ordinary vault, his particular cask as any ordinary cask,
his rigid funnel pipe as a tubular connection, and such ambig-
uous and false description is new matter.
Careful examination of the original specification, giving to
ita broad and liberal construction, and taking into consideration
every suggestion therein contained, in regard to the nature, ob-
jects, and scope of the invention, fails to disclose a sufficient
or satisfactory ground for the subsequent surrender and reissue.
There was perfect accord between the description and claim ;
the former stated clearly the devices, or peculiar combina-
tions of them, which constitute the patentee’s improvement
on former apparatus of the same character, or make it to
differ from them; and the latter fully covered everything de-
scribed, or suggested in the former, or shown in the drawings
annexed thereto, or in the model filed with the application.
The claim corresponded with the description, and the latter is
as full, clear and exact, even more so, certainly made up of
less ambiguous words and phrases than in the reissue. There
is no error from ‘‘ inadvertence, accident or mistake.’’ Under
such circumstances, a reissue will not be sustained that has
been obtained for the mere purpose of sub-dividing, expanding
and generalizing the claim so as to make it embrace an inven-
tion not described and specified in the original.
James vs. Campbell, 104 U. S.. 356.
l
This practice of expanding patents by reissue has been
frequently of late condemned by this Court.
Gill vs. Wells, 22 Wall., 1.
Roberts vs. Royer, 91 U. 8., 150.
Russell vs. Dodge, 95 U. 8., 460.
Powder Co. vs. Powder Works 98 U. S., 138.
Ball vs. Langles, 102 U. S., 128.
Swain Turbine Co. vs. Ladd, 102 U. S., 408.
- ra eo ELE ILS COON STEED EEE SR PRETAX eae
peteibaediniendatediatereeaiesintene tee
x ne RG eT = aha - — eee ween
* . 3 ci eam ‘
29
There can be no doubt that the first and third claims of the
reissue are broader than any claims of the original patent.
And it is not denied by the appellees that they intended there-
by to cover the appellant’s apparatus ; indeed, such purpose is
evident from the language of the amended specification. It is
also evident that appellant's apparatus would not infringe
either claim of the original patent. If the Court is satisfied of
this, the reissue must fall.
Wood Paper Patent, 25 Wall., 566.
Johnson vs. R. KR. Co., 105 U. 8., 539.
Moffit vs. Rogers, 106 U. 8., 425.
Apart from the objections to the Reissued Patent, already
stated, an equally serious objection arises from the laches of
| e/ ~
the patentee, in applying for the reissue, even though he was
otherwise entitled to have it in the form in which it now ap-
pears. Nearly five years clapsed before this alleged defect be-
came apparent, and does not ‘appear to have been suggested
until the field of invention became occupied by numerous other
parties, who took patents for their respective improvements.
In James vs. Campbell, 104 U. 8, 356, it is said that a re-
issue may be had, where the original claim does not fully assert
and define a patentee’s right in the invention specified in the
patent, only when speedy application is made for its correction,
and before adverse rights have accrued.
What constitutes unreasonable delay in any particular case,
must depend upon the facts; and the delay permissible under
some circumstances might not be so harshly criticised as in a
‘ase where, (as here), interfering interests arose in the meantime,
and where the only substantial amendment intended was in the
expansion of the claims. Such an alleged defect is perceptible
at once on inspection of the Original Patent, and the patentee
should be held to at least ordinary diligence in asking for cor-
rection on such a ground.
Miller vs. Brass Co., 104 U. 8., 550.
Gage vs. Herring, 2 8. C. Rep., 824.
pnomnpucatnitentaiitinns: 0° Cuntsarenmens
ey ee
t would be inequitable to sustain the claims of this reissue,
even though the patentee was otherwise entitled to them, when
the Original Patent did not even suggest the possibility of any
of these sub-combinations forming any part of the invention,
considering also, their exceedingly doubtful novelty, and that
no claim was made to them until after a delay of five years,
wholly unaccounted for, and that valuable improvements had
heen made and patented in the meantime.
Heald vs. Riee, 104 U.S., 7
Matthews vs. Machine Co., 105 U.S... 554.
Bantz vs. Frantz, 105 U.S., 160.
> Tend
“>| .
3. Tne DIFFERENCE BETWEEN THE DEVICES USED BY THE
APPELLANT AND THOSE DESCRIBED AND CLAIMED IN
THE RetssueD PATENT, AS RESPECTS THE QUESTION
OF INFRINGEMENT.
It may be conceded that if the first and third claims (those
in controversy) of the Reissued Patent should be construed
literally, without restraining the generality of the same by a
reference to the descriptive parts of the specification or to
the Original Patent, the appellant's apparatus would, perhaps,
fall within their terms; but the state of the art at the date
of the Original Patent and the distinct limitation of the
invention in that mstrument to a receiver of specific construe-
tion, intended to operate in a particular way, in combination
with elements necessary to make it operative, require that the
claims of the Reissued Patent should be construed in aceord-
ance wita such limitation in order to avoid the conelusion that
it is for a different invention, or voil for want of novelty.
It will be noticed that the first claim of the reissue omits
both the check valve and the float valve as elements of the
combination, and unless, in construing this claim the Court
read into it by implication, all these parts which are essential
to the operation of the elements named in the combination
wits
PEELE OR PRE es
24
(Irwin vs. Dane, 9 O. G., 642), it necessarily follows either
that the claim is void as not being for an operative combina-
tion, or that the claim does not apply to the cask and _ its
appurtenances, constructed and to be operated as described
in the patent (for if so constructed it could not be successfully
(see Bull's testimony, page 99
operated without both valves
of record). The claim was levelled against the Bradley cask,
which, from its construction can be operated without either
valve, and im fact does use only one.
The application for the Original Patent was sworn to in
blank, and for the Reissue without reading the specification, so
that the patentee, Bull, for the first time, when called as a wit-
ness, stated under oath the nature and extent of his alleged
invention. Ile said (page 9) that he desired to improve upon
the Straus machine (see Straus Patent, page 204) which would
not clean deep vaults, and to that end, instead of using the
force pemp to draw up the material and force it into the re-
ceiver, he constructed his apparatus in the manner shown in
the drawings, for the purpose, as he says, ‘of following up
the material after it was out of the reach of the Straus pump;”’
and this he accomplished ‘by lowering the barrel in the vault,
so that the suction nozzle would enter the material.’ And
the witness admitted that in the receiver to be so operated, he
constructed it as shown in the drawings of the patent (and no
other construction and operation is described in the specifica-
tion); and to be so operated successfully 7t absolutely required
hoth the check valve and the float valve; neither could be
omitted; without either ‘it was not a practical thing,”’ as he
testified, (page 100 of record—folio 173.) But this was a de-
vice to be lowered into the vault, and having other appurten-
ances to adapt it to that use.
The appellant’s apparatus is not lowered into the vault, con-
sequently is not of the special form shown in the Bull Patent ;
has no induction-passage at its bottom, and consequently not
needing and not having any check-valve. Tf there is any im-
a
a
~
.
5
provement in Bull over Walter and Cherrier, there is a vast
improvement comparatively in Bradley, Scharf & Bradley, and
Frazier, over Bull. !t is therefore easy to understand why
these valves were omitted as elements of the combination
claimed in the first claim of the reissue. The Bull apparatus
as described, absolutely required both. The Bradley appara-
tus does not absolutely require either: indeed, one cannot be
used therewith, and the other is not essential. See Scharf
apparatus, constructed without «either valve, page 177 of re-
cord. But apart from this, no other cask but that shown in
the drawing, is described in the specification, and no other
operation is described than that of lowering the cask into the
vault; consequently the claim is to be read as for a combina-
tion including such a cask, and of course impliedly including
all the parts of the elements necessary to make it operative,
viz.: the two valves, Xc.; and as respects the *‘ tubular con-
nection,’ these words, which mean the induction connection,
should be construed to mean the thing shown and described,
viz.: a neck and rigid funnel, not a flexible hose; and this,
too, is plain, not only from what has been said, but from the
action of the Patent Office in requiring the patentee to strike
out the word * flextble,” before allowing the claim. (See
pages 218 and 228 of the record.)
Again, the appellee's expert, Mr. Renwick, admits, pp. 22
and 25 of record, that the second claim of the reissue is for the
peculiarly constructed cask, with its appurtenances, as shown m
the drawing; that appeliant’s apparatus does not infringe that
claim; that the same cask therein claimed, is the cask of both
the first and third claims; though seeing the danger of this
last admission, he attempted to withdraw it when called in re-
buttal (6th Interrog. p. 121 of record), but the force of the
explanation is lost. in view of his answers to the 6th, Tth, 8th,
and 9th cross-interrogatories, pp. 154 and 1535 of record. The
only logical conelusion therefore, is, that as the ‘taccessories 0)
appurtenances, (as Mr. Renwick calls them), of the Bull cask,
4
26
are absolutely essential to its proper construction and success-
ful operation, (as the alleged invention is shown in the drawing
and described in the specification), that the patentee invented
nothing but a combination of a// these parts, all of which
are conceded to be old, making up a complete apparatus:
and that the first claim of the Original Patent—‘ The com-
bination and arrangement of the funnel O, neck i, and valvi
d with cask B, neck M, and float valve tf, substantially
as shown and described,” fully covered: all the patentee
invented: or was entitled to claim. If that is so, it fol-
lows as of course, that the cask with its appurtenances con-
stitute elements of each of the three claims of the Reissued
Patent, and that the appellant's apparatus is not only thus ex-
cluded from the operation of the second claim, as admitted,
but is not included within either of the other two claims of
that instrument.
It was in the combination of parts making up the receiver
cask, that the only novelty of the invention consisted, as
clearly set forth in the first claim of the Original Patent: and
the patentee cannot now abandon one or more of these parts
of his combination, or prove it useless and unnecessary, and
maintain his claim to the rest.
Rowell vs. Lindsay, 6 Fed. Rep. 291.
Corn Planter Patent, 23 Wall, 224.
Water Meter Co. vs. Desper, 101 U. S. 337
This case is one where (as in Duff vs. Sterlnmg Pump Co.,
2 8. C. Rep., 490), in view of the state of the art, the
invention must be restricted to the special form and construc-
tion of the cask and its appurtenances, as shown in the draw-
ings and described in the specification, and, it might be added,
as Claimed in the first claim of the Original Patent, by the
patentee. Bull was not the first to make an odorless privy-
cleaning apparatus, composed of pump, deodorizer, and re-
ceiver, with necessary tubes and pipes. Ile merely devised a
new form of receiver, and new only in the sense of its co-
acting fixtures.
+
Railway Co. vs. Sayles, 97 U. S., 504.
Subsequent patentees have adopted a different and improved
construction and arrangement, and, under such circumstances,
the appellee’s patent cannot have a meaning and scope given
to the ambiguous words of its reissued clanns, that would em-
brace all these subsequent improvements, including the appel-
lant’s apparatus.
Merrill vs. Yeomans, 94 U.S., 568:
Keystone Bridge Co. vs. Phoenix tron Co., 95 U. S.; 274:
Burns vs. Meyer, 100 U.S., 671.
Upon the whole case as presented, the decree should be
reversed.
HECTOR T. FENTON,
Counsel for Appellant.
ORIGINAL PATENT.
Specification forming part of Letters
Patent, No. 115,565, dated June
6, 1871.
I, Henry (. Bui, of New
Orleans city, in the State of Lou-
isiana, have invented certain Im-
provements inApparatus forClean-
ing Privies, of which the following
is a specification :
|
Specifications
issued Letters Patent
REISSUED PATENT.
forming part of Re-
No. 6,962,
dated Fehruary 29, 1876.
30
To all whom it may concern:
Be it known that I Henry C.
Butt, formerly of the City New
Orleans in the State of Louisiana,
now of Brooklyn, in the State of
New York, have invented certain
improvements in Apparatus for
cleaning privies; and | do hereby
declare that the following specifi-
cation, taken in connection with
the drawings furnished and form-
ing a part of the same, is a true,
clear and complete description
thereof.
Prior to my said improvement the
contents of privy-vaulis and other
similar receptacles, generally known
as “night-soil,” have been trans-
ferred to transit-tanks by means of
dippers and buckets, or by means of
one of three general modes of opera-
tion, involving the use of mechanical
contrivances. One of these methods
involved the use of an endless chain
with buckets attached thereto, oper-
ated by means of a rag-wheel and
crank, whereby the offensive matters
were raised from the vault within a
close-walled portable structure, and
emptied from the bucket into a tubu-
lar chute, at the discharge end of
which the transit-tank was located.
Communicating with the tubular
|
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a
;
|
4
.
et cont Ae ah et ma Al — prema, elem —eanes _ae
>
‘
ORIGINAL.
IY
REISSUE.
chute a deodorizer was arranged,
for disinfecting the offensive JUSES
evolved during the operation.
Another method, known as the
pumping and forcing system, tn-
volves the employme nt of a foreing-
engine, «a transit-tank, and a deo-
dorize -. where by the contents of the
vault are drawn by suetion to the
plump, and forced therefrom into the
transit-tank, from which the offensive
GUses are conducted fo a deodorizer.
Another method involves the em-
ployment of apparatus operating
under what is known as the “vaeuum
syste m.’ and it ts to this systegn that
WY improveme nts relate.
So far as my knowledge extends,
apparatus operating uuder the fore-
ing and vacuum systems has hereto-
fore embodied in all cases, large
transit-tanks, which were mounted
upon wheels, and this necessarily in-
volves the use of a considerable length
either of suction-hose alone, or, in
addition thereto, of condueting-hose,
because ine practice the heavy tanks
and their carriages can seldom be
located closely adjacent to the vault
to be emptied, as it is well known
that such vaults in erties are gen-
erally hedged in by walls of build-
ings and by fences, leaving but Little
space around the vault for working
operations; and although the me-
chanical apparatus before referred
to, consisting of the chain and
buckets, was arranged to deliver the
offensive matter into small casks, it
was rendered practically worthless
jor inoffensively operating tm close
quarters by reason of. the bulk of the
ORIGINAL.
a
~
“Isr ws
an eg
_~
—
90
9]
92
93
94
Q5
~
O6
97
QS
99
100
10]
102
103
104
105
106
107
108
109
110
REISSUE.
) apparatus, and the portable air-tight
inclosing structure within which tut
was necessarily mounted and oper-
ated, By reason of my invention |
am enabled under any and all cir-
eumstances to transfer the contents
2 of privy-vaults to transit-tanks, re-
gardless of limited space, because the
several parts of my apparatus are
readily adjustable and locatable in
> relation with each other and to the
vault to be emptied ; and any vault
s having a passage way leading to it
capable of receiving a barrel can be
readily emptied of its contents with
my improved apparatus without
offense, even though it be necessary
to carry the entire apparatus and
the matter to be removed through «
dwelling-house.
It is well known that the power of
atmospheric pressure cannot be re-
lied upon for lifting fluid matters
lying below a certain depth, and
that friction of the matter within the
suction- pipe lessons this capacity
more or less; also, that the more
solid matters the fluid contains the
greater the friction. For these rea-
sons the vacuum system, as hereto-
fore practiced, -could seldom be
relied upon for emptying a vault-
well deeper than about fifteen or
twenty feet. In some cities vault-
wells have a depth of about forty
111 feet, and one olject of my invention
112
must be conveyed to a convenient
is to empty, by the vacuum system,
vaults so deep that they could not be
emptied by that system as heretofore
> practiced,
It is well known, too, that heavy
transit-tanks on wheels, when filled,
119
120
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130
13]
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150
15]
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153
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155
156
157
158
159
L160
; 161
ORIGINAL.
Deseription of the Accompanying
Drawing.
Figure | is a view in perspec-
tive of the cask or package A,
showing the methodof suspending
and operating the same. Fig. 2
is a side elevation of the suction-
Fig. 3 is a
hig. 4 is
a vertical transverse section of the
pump and furnace.
plan view of the vault.
cask or receptacle shown in Fig. 1.
My invention relates to an im-
provement in devices for cleanings
or emptying privy-vaults, where-
bythe night-soil therein contained
may be removed and utilize and
the disagreeable odors arising
therefrom prevented. It consists
ofthe vault A, receptacles or casks
B, and the suction-pump with fur-
nace C, constructed and_ operated
as shown and described.
128
129
150
13
132
133
15
>
149
150
151
152
158
154
155
156
157
158
159
160
16]
REISSUE.
place for discharge: if to the coun-
try by the road, much time is con-
sumed ; if toa dock, it is discharged
In
neither case can this valuable fer-
in mass to the hold of a barge
filizer be distributed conveniently
in lots to suit to small farmers and
on rai and
gardeners regular
water routes.
One object of my invention is to
entble the offensive matter to be
of
susceptible of being conveyed, in
made an article trade and
lots of any desired quantity by
traveled routes and by the usual
means of publie conveyance, without
ereating offence.
My invention consists, mainly,
in asink-cleaning apparatus, con-
sisting, of an air-pump, a deo-
dorizer, and suitable tubular con-
nections, in combination with an
independent or movable receiving
cask, having an induction passage
or opening, and also an air-pas-
for the
air-pump, with
connecting with
sage
and = provided
stench and water tight covers
hoth
moveble cask may be located in any
tor Passages, whereby the
desired position with relation to the
vault, and the air-pump and the
deodorizer properly located with
reference to the vault and cask,
when
and also whereby — the cask,
filled, may be trundled on its bilge
or end, after the usual manner of
handling casks or barrels,
My invention consists, further,
in the combination with the cask
a detachable
suction pipe or funnel connected
of a flanged opening,
with the flange of the opening,
162
163
164
165
166
167
LGS
169
170
17]
172
io
174
lio
176
vai
178
179
1S0
IS]
182
183
184
IS)
I86
1S7-
ISS
ISO
190
19]
192
193
194
195
196
197
198
199
200
201
202
203
ORIGINAL.
A, a evlindrical privy-vault,
constructed of metal or other suit-
able water-tight material,and pro-
vided with
flange 6, which latter is designed
as an auxiliary for holding it ina
as also for
vertical position,
the neck «@ and the.
cee onan CD AB AMER A DPN np ELEY A AS RAE Ro me en
REISSUE.
and a cheek-valve located within
the cask for retaining the offen-
sive matter after passing through
the valve.
My invention still farther con-
sists in the combination with the
air-passage of a night-soil cask, of
a float valve, whereby, when the
cask is filled with fluid matters,
the floated
closed, thereby tndicating thet the
valve will be and
cask is filled, and preventing the
fluid
conducting-pipe
matter from entering the
and passage
through the atr-passage to the
air-pump, which would otherwise
its
rendered
he hable to have valves
clogged thereby and
inoperative.
To more particularly describe
my invention, I will refer to
the accompanying drawings in
which
Kigure 1 represents, in- side
view « cask embodying several feat-
UPeSs Of “wi ieee ntion located within
Fig. - 2.
side view, an air-pump connected
k by a flexible tube
a privy, represents, In
with the cas
or suction-hose, and provided
lig. » rep-
Fig. 4.
represents, on an enlarged scale
with a deodorizer.
resents, « privy-vault.
and in detail, in vertical central
section, the cas’: shown in Fig. 1.
It is
provided with the wsva/ entrance
A vault is indieated at A.
opening, as at a. B denotes
one of several casks or recepta-
cles which ere employed in con-
nection with an air-pump, as at
offensive
C, for removing the
ene
>
204
205
206
207
208
209
210
211
212
213
214
215
216
217
218
219
220
221
222
223
224
225
226
99"
ai aa b
228
229
230
231
232
233
234
235
2336
237
238
239
240
241
249
243
33
ORIGINAL.
strengthening the same. B repre-
sents one of several casks or re-
ceptacles, which are employed as
adjuncts of the suction-pump C)
for removing the foecal matter
from the vault. It has located at
its lower extremity the funnel O,
which fits, air-tight, upon the
neck 7, and the valve d, which
opens upwardly ; and at its apex
the float-valve /f, is provided,
which screws upon, or is other-
wise caused to fit, air-tight, upon
the neck M. The float-valve f,
consists of the rod e, located ver-
tically in the tube g, the said rod
being guided by orifices, provided
in transverse bars, in the upper
and lower ends thereof. The
lower part of the float valve is
made of cork or other light ma-
terial, in order that when the
cask or receptacle becomes filled
by the action of the suction-pump,
it may press against the orifice
of the tube, and thereby prevent
the contents of the vault A, from
overflowing or extending beyond
the cask B. Ahk are shoulders,
rigidly attached to the cask B,
and are designed for clutching
with the clamps L. V represents
one of a series of caps, which
are screwed upon the neck or
necks of casks A, when filled by
the action of the suction-pump.
The method of operating my de-
vice isas follows: After removing
the seat or floor, the receptacle B,
is suspended from a block and
tackle over the opening, and the
cask or receptaele A, is then low-
ered into the vault, until the fun-
|
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205
206
207
208
209
210
211
212
213
214
215
216
217
218
219
220
221
222
223
224
225
226
227
228
229
230
231
232
233
234
235
236
237
238
239
240
24]
242
243
244
P45
246
247
REISSUE.
matters from the vault. The
cask B has at one end a screw-
neck, i, and the check valve d,
which opens inwardly. Said cask
also has another screw-neck, as
at M, to which is attached the
suction-house, which communi-
cates with the air-pump. At-
tached to this neck is also a
float-valve, as at f, which guards
the entrance to the suction tube
or hose. The spindle of the
ralve f is provided, in a well-
known manner, with guiding
devices. The lower portion
of the float-valve is provided
with cork or other light material
whereby, when the cask is filled
with fluid matter, the valve will
be floated and effectually close
the entrance to the suction air-
pipe, preventing the latter, as
well as the pump, from being
clogged by said matter. The
cask is shown to be provided
with shoulders hh, whereby the
hoisting-clamps L may _ readily
be made to engage with the cask.
The induction-pipe O is secured to
the proper serew-neck on the cask,
and it constitutes a tubular conneec-
tion with the cask, through which the
offensive matter is conducted from
the vault into the cask.
In operation I proceed as fol-
lows: After removing the seat or
floor of a privy, uncovering the
entrance to the vault, the cask B
is suspended, by a bleck and
tackle over the vault, connected
by the suction-pipe to the air-
251
252
253
254
255
256
257
258
259
260
261
262
263
264
265
266
267
268
269
270
271
272
173
274
275
276
Ory
madd
278
279
280
281
282
283
284
2R5
286
287
288
289
ORIGINAL. |
nel QO, enters the fecal matter |
about ten inches, whereupon, by :
operating the suction-pump, the |
receptacle or cask becomes filled
534
REISSUE.
248
249 the funnel-pipe connection
pump, and then lowered until
O
250 (which ts temporarily serewed to the
251 neck tof the cask) is at its lower
with the foeces until it reachesthe | 252 end immersed in the contents to
float-valve /, which pressesagainst | 253 be removed. The air is then
and closes the orifice of the tube | 254 exhausted from the cask by
leading tothe pump. The valve | 255 means of the pump, and deo-
d, then falls, and prevents the es- | 256 dorized by the furnace on the
cape of the contents of the cask. | 257 pump. The vacuum thus in-
In the meantime the air that is | 258 duced causes the matter to be
pumped out of the receptacle B, | 259 sucked through the funnel-pipe
is forced into a furnace, located | 260 into the cask until the float-valve
over the suction-pump, whereby | 261 is lifted and the air-passage
the odor arising therefrom is de- | 262 closed. The pump is then
stroyed. When one receptacle is | 263 stopped and the valve d closes.
thus filled, the valve f,isremoved, | 264 The cask, being wholly free from
and the cap V, screwed thereon, | 265 exterior contact with filth, is then
whereupon the operation is re- | 266 /ifted, the funnel and suction pipe
peated by the employment of | 267 removed, and the screw-caps V
another cask, until the vault is | 268 applied to the necks 7 and M,
emptied of its contents. 269 after which the cask is handled like
| 270 any filled cask, and rolled on its
271 bilge or end.
272s [It will be seen that the cask,
| 273 when thus constructed, may be
| 274 lowered to any required depth in
| 275 a vault, and filled by the vacuum
| 276 system, regardless of the fact
| 277 that atmospheric pressure as
| 278 heretofore employed in this con-
| 279 nection, could) only empty a
| 280 vault to the depth of, sav, fifteen
| 281 or twenty feet.
| 282 In operation the pump may be
| 283 placed closely adjacent to the door of
284 the privy, and the deodorizer serve to
285 « greater or lesser extent to disinfeet
286 the surrounding atmosphere,
: 287 The operation of cransferring the
288 offensive matter to the cask is wholly
289 performed within or near the privy,
rN Pi NP PE
once eer seen etapa tera cemaeniflar sea _
eee ee a
se MORITA Caen nen we tow ap mene Wem prereset
ca ne ee nee et tt ht ACE OP LED
PQ)
2]
292
295
294
295)
POG
297
POS
299
300
30]
HOr
505
504
505
506
5307
508
509
310
311
o12
315
314
S15
516
317
318
519
O20)
321
322
323
324
325
326
327
328
329
«>
peru)
QO RIG | N Al de
290°
291
AS bid
om! a
293
294
295
296
297
298
2OY
300
301
302
303
304
305
306
307
508
309
321
322
6)
oe
324
328
329
330
331
REISSUE.
thus avoiding the objectionable pub-
licity incident to the vacuum system
(1s heretofore employed,
When the vauts have been so
far enuptied as to leave only the
sedimentary deposits, the cask being
located closely adjacent _ thereto,
deposits are readily drawn into
the cask, which it would be
practially impossible to do if such
vacuume-system apparatus as has
heretofore been employed were vTe-
lied Ol.
This portion of the operation
is rendered all the more practi-
‘able by reason of a large induc-
tion passage to the cask, through
which the heavy viscous matters
may freely enter.
In night-soil operations, wheth-
er with the pumping and forcing
or the vacuum apparatus, it fre-
2 quently oecurs, unavoidably, that
air will freely enter the cask by
way of its induction-aperture.
When this occurs with a large
cask on wheels, a large quantity
of air is entered, which requires
to be subsequently removed by
the pump before operations may
be continued.
With the portable independent
casks employed by me, a much
less quantity of air is required
under these circumstances to be
removed from the casks. More-
over, it is practicable to exhaust
the air from small casks much
more thoroughly than is possible
from the huge tuns or tanks here-
tofore employed with vacuum ap-
paratus, as is illustrated in the
ORIGINAL.
se
536
337
308
339
540
341
‘> +)
tea
343
344
345
346 Claims.
347
348 =I claim—
1. The combination and ar-
rangement of the funnel O, neck
i, and valve d, with cask B, neck
M, and float-valve /, substantially
as shown and described.
| 349
| 350
| ——
352
358
354
| 356
| 357
358
359
360
361
, 362
363
364
365
366
367
368
369
370
The combination and ar-
rangement of the vault A, cask
B, and suction-pump C, substan-
tially in the manner and for the
purpose described.
2.
Se ne are enemas
REISSUE.
United States patent to Walter,
dated May 6, 1862.
The fertilizing material, being
inclosed in casks of small size,
” «*
ww
a
CO Ww
-_
_—
) securely sealed, and having clean
- *
Geo
exteriors, may be readily shipped
by rail or steamer to various
delivered at any
without
* «*
aed
and
station to
any practical possibility of cre-
points,
consumers,
ating as much, or at least any
more, offense than usually ac-
companies the trade in well-
known merchantable fertilizers.
'
Having thus described my im-
provements, I claim as new and
of my own invention—
a
paratus consisting of an air-
A privy-vault-cleaning ap-
350
35]
9
ov
303
354
or &
oo”
pump, a deodorizer, and suitable
tubular connections, in combina-
tion with an independently mov-
able receiving-cask, having an
induction passage or opening,
and also an air-opening for con-
nection with the air-pump, and
provided with screw-necks at
each opening, receiving
sealing caps or covers, substanti-
ally as described, whereby the
movable cask may be located in
any desired position with rela-
tion to the vault and privy, and
the pump and deodorizer located
in any desired position with rela-
tion to the vault, privy, and cask,
and also whereby the casks, when
filled, may be handled as is usual
with filled casks, as set forth. ;
396
397
398
309
360
361
362
363
364
365
366
367
363
369
70
for
ORIGINAL.
380)
381
B82
$383 In testimony of this, my appli-
384 cation for Letters Patent for an
$85 Improvement in Apparatus for
5386 Cleaning Privy-vaults, I here-
387 unto subscribe my name.
HENRY C. BULL.
Witnesses :
JoeL EK. CANNON,
RoBeERT KING.
9
od
”
syrr ey
olin
or”
374
on
oie
3/6
oid
+p" o>
od Ss
d86
S87
Witnesses:
REIFSSUE.
2. The combination, with a
portable cask, having an indue-
tion-aperture at one end, of a
check-valve, a screw-neck sur-
rounding the aperture, a fun-
nel-shaped pipe connected with
the neck, and an air-eduction
passage provided -with a screw-
neck, substantially as described.
«>
3. The combination, with a
portable night-soil cask, of a
float-valve located at the air-pas-
sage, substantially as described,
whereby the fluid matter is pre-
vented from entering the air-pas-
sage, and clogging the suction
air-pipe and pump, as set forth.
HENRY C. BULL.
Wo. M. BENEDICT,
EK H. BENEDICT.
Supreme Court of the Elnited States
WILLIAM E. CLEMENTS, APPELLANT,
us.
THE ODORLESS EXCAVATING APPARA-
TUS COMPANY.
No. 136.
| Appeal from the Cirewit Court of the United States
for the District of Maryland.
se
BRIEF AND ARGUMENT IN BEHALF OF APPEL-
, LEES.
BENJ. F. PRICE,
Counsel for Appellees.
Supreme Court of the Eluted States.
WILLIAM E. CLEMENTS, Arrewnayr,
US °
THE ODORLESS EXCAVATING APPARA-
TUS COMPANY.
' No. 136.
3+ —
| Appeal from the Cirewit Court of the United States
’ jor the District of Maryland.
——_---——_ --e-8 © ---
ABSTRACT OF THE CASE.
On the 6th day of June, 1871, Letters Patent of the
United States were granted to Henry C. Bull, assignor of
one-half his right to Joseph M. Lowenstein for an improve-
ment in apparatuses for cleaning privies, and were numbered
115,565, a certified copy of these letters patent is filed in
the case marked “ Complainants’ Exhibit, Bull Patent.”
a The specification of this patent is printed in the record on
| page 30 and 31, and the drawing accompanying the same
appears in the record between pages 28 and 29.
2
This patent was re-issued to Louis R. Keizer, and the
re-issue dated February 29th, 1876, No. 6962, a copy of which
is inserted in the record beginning on page 32, and is marked
Complainants’ Exhibit Re-issue. |
By mesne assignments the Odorless Excavating Appa-
ratus Company became the owners of these Letters Patent,
and brought suit for infringement thereof against William
E. Clements, the defendant below, and appellant in this
Court.
Prior to this suit the Appellees brought suit by bill in
Equity in the Circuit Court of the United States for the
District of Maryland against Thomas Quillam, which case
was decided by the late Judge Giles in favor of Complain-
ants, the present Appellees, in which the validity of the
patent was affirmed, and a decree for infringement passed
by the Court.
The Bill of Complaint in the present suit was filed in the
Court below on the 17th day of November, 1877, by the
Odorless Excavating Apparatus Company (Complainants)
against the Appellant, alleging the ownership of said Let-
ters Patent by the company, and setting out the assignments
by which the title passed to it, alleging infringement by the
Appellee of the Ist and 3rd claims of said letters patent, as
follows:
Ist. “A privy-vault cleaning apparatus consisting of an
air-pump, a deodorizer, and suitable tubular connections, in
combination with an independently-movable receiving-cask,
having an induction passage or opening, and also an air-
opening for receiving sealing caps or covers, substantially
as described, whereby the movable cask may be located in
any desired position with relation to the vault and privy,
and the pump and deodorizer located in any desired position
with relation to the vault, privy and cask, and also whereby
the casks, when filled, may ve handled as is usual with filled
casks, as set forth.’
3d. “The combination with a portable night-soil cask, of
a float-valve located at the air-passage, substantially as
3
described, whereby the fluid matter is prevented from enter-
ing the air-passage, and clogging the suction air-pipe and
pump as set forth.”
The prayer of the Bill is for injunction, account of profits,
damages and further relief.
The defendant was duly summoned and appeared in Court
by counsel on the 8th day of December, 1877, filed his’
answer.
The answer denies that Bull was the inventor of the im-
provement described and claimed in his letters patent, puts
the complainant to the proof of the alleged assignments,
alleges that the new letters patent are not for the same in-
vention as the original, denies the utility of the invention—
alleges that the defendant is using an apparatus constructed
in accordance with letters patent granted to Samuel R.
Scharf and Jerome Bradley, and sold to him by said Bradley,
and that “said Bradley was then and is now a stockholder
in the Complainant company and one of the Complainants
in the suit,” and that the Defendant is licensee of said
Bradley ; the answer avers that Bull was not the inventor
of the improvement described in the letters patent and
shown in the drawings, and avers that substantially the
same subject-matter was before the alleged invention de-
scribed in French letters patent to
Francois Lesage, December 11th, 1855.
Certificate of addition to same, May 7th, 1857.
Louis Cherrier, December 27th, 1844.
D. Courdier, May 22, 1860.
And in the following Letters Patent of the United States.
Joseph P. Walter, 1862. |
Louis Straus, January 28th, 1868.
Jno. 8. Patrick, re-issued April 11, 1865.
Edwin Heald, August 21, 1866.
Robert Berryman, July 28th, 1868.
The answer further alleges that the invention was known
and in public use, and further cites
2
This patent was re-issued to Louis R. Keizer, and the
re-issue dated February 29th, 1876, No. 6962, a copy of which
is inserted in the record beginning on page 32, and is marked
Complainants’ Exhibit Re-issue.
By mesne assignments the Odorless Excavating Appa-
ratus Company became the owners of these Letters Patent,
and brought suit for infringement thereof against William
K. Clements, the defendant below, and appellant in this
Court.
Prior to this suit the Appellees brought suit by bill in
Equity in the Circuit Court of the United States for the
District of Maryland against Thomas Quillam, which case
was decided by the late Judge Giles in favor of Complain-
ants, the present Appellees, in which the validity of the
patent was affirmed, and a decree for infringement passed
by the Court.
The Bill of Complaint in the present suit was filed in the
Court below on the 17th day of November, 1877, by the
Odorless Excavating Apparatus Company (Complainants)
against the Appellant, alleging the ownership of said Let-
ters Patent by the company, and setting out the assignments
by which the title passed to it, alleging infringement by the
Appellee of the Ist and 3rd claims of said letters patent, as
follows: !
Ist. “A privy-vault cleaning apparatus consisting of an
air-pump, a deodorizer, and suitable tubular connections, in
combination with an independently-movable receiving-cask,
having an induction passage or opening, and also an air-
opening for receiving sealing caps or covers, substantially
as described, whereby the movable cask may be located in
any desired position with relation to the vault and privy,
and the pump and deodorizer located in any desired position
with relation to the vault, privy and cask, and also whereby
the casks, when filled, may be handled as is usual with filled
casks, as set forth.” |
3d. “The combination with a portable night-soil cask, of
a float-valve located at the air-passage, substantially as
3
described, whereby the fluid matter is prevented from enter-
ing the air-passage, and clogging the suction air-pipe and
pump as set forth.”
The prayer of the Bill is for injunction, account of profits,
damages and further relief.
The defendant was duly summoned and appeared in Court
by counsel on the 8th day of December, 1877, filed his
answer.
The answer denies that Bull was the inventor of the im-
provement described and claimed in his letters patent, puts
the complainant to the proof of the alleged assignments,
alleges that the new letters. patent are not for the same in-
vention as the original, denies the utility of the invention—-
alleges that the defendant is using an apparatus constructed
in accordance with letters patent granted to Samuel R.
Scharf and Jerome Bradley, and sold to him by said Bradley,
and that “said Bradley was then and is now a stockholder
in the Complainant company and one of the Complainants
in the suit,” and that the Defendant is licensee of said
Bradley ; the answer avers that Bull was not the inventor
of the improvement described in the letters patent and
shown in the drawings, and avers that substantially the
same subject-matter was before the alleged invention de-
scribed in French letters patent to
Francois Lesage, December 11th, 1855.
Certificate of addition to same, May 7th, 1857.
Louis Cherrier, December 27th, 1844.
D. Courdier, May 22, 1860.
And in the following Letters Patent of the United States.
Joseph P. Walter, 1862.
Louis Straus, January 28th, 1868.
Jno. 8. Patrick, re-issued April 11, 1865.
Edwin Heald, August 21, 1866.
Robert Berryman, July 28th, 1868.
The answer further alleges that the invention was known
and in public use, and further cites
4
Vol. 12 Encyclopedia Britannica, 8th edition, p. 1753,
Article Hydronamics.
New American Cyclopedia, vol. 9, p. 406, Article Hy-
draulic Rams.
Lardner’s Lectures on Science, pp. 424-474, 504.
A Treatise on the Steam Engine by John Benner, and
plate III appended thereto.
That the entire invention was in public use by Bull more
than two years before his application for letters patent.
The answer further charges that the 3rd claim is void for
want of patentable novelty.
On the 5th day of January, 1878, a general replication
was filed; and examiner was appointed to take the testi-
mony by agreement. _
The suit is brought to restrain the Defendant from using
an apparatus known as the Bradléy apparatus, for which as
the answer alleges letters patent were granted to Scharf
and Bradley, the said Bradley being a stockholder in the
Complainant company, and the said Defendant, Clements,
being a licensee of said Bradley, and his agent for the sale
of the apparatuses. :
Models of these apparatuses are filed in evidence in the
case, and admitted as substantially correct representations
of the infringing devices by agreement filed in the cause,
the mode of operation of these apparatuses is described in
the testimony of James L. Murrill on pp. 19 and 20 of the
record. |
Testimony was taken by both sides in the case and argu-
ment made before the Court below; that Court with both
Judges concurring re-affirmed the validity of the patent,
and declared the first and third claims thereof to be in-
fringed by both of the forms of apparatus filed; this opinion
is inserted in the record on pp. 265, 266, and was filed on
the 8th day of September, 1879.
In pursuance of the above opinion, a decree was passed,
granting an injunction, and referring the case to a master to
— e
5
take an account of profits and assess the damages therein.
This decree was filed September 11th, 1879.
Both parties appeared before the master, who, after hear-
ing testimony, filed his report on the 19th day of June,
1850; this report is inserted in the record beginning on
page 268.
No exceptions having been filed to the above report, it
was finally ratified and confirmed by the Court by order
filed in the cause dated August 2nd, 1880; this order ap-
pears in the record on p. 279.
From which order this appeal was entered.
Supreme Court of the Cited States.
—— © > -
WILLIAM E. CLEMENTS, APPELLANT,
Vs,
THE ODORLESS EXCAVATING APPARA-
TUS COMPANY.
oe --—-
Appeal from the Circuit Court of the United States
for the District of Maryland.
eee a ee
BRIEF AND ARGUMENT IN BEHALF OF APPEL-
LEES.
The Odorless Excavating Apparatus Company, a corpora-
tion chartered under the laws of the State of Maryland, ob-
tained its charter (see pp. 27 and 28,) for the purpose of en-
gaging in “the manufacture and sale of improved apparatus
for emptying privy-vaults, sinks, cesspools, cellars, wells and
excavations, &c., and also to work the improved apparatus
either under their own supervision or in connection with indi-
viduals or corporations, to sell rights, and license individuals
or corporations to use said apparatus.”’
3
¥
:
>
4
.
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i
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=
7
The certificate of incorporation is dated May 5th, 1874,
and among the incorporators and directors to manage the
company were Louis R. Keizer, William Painter, and Jerome
Bradley—see p. 28. The patents belonging to Painter and
Keizer were assigned to the company, and the Straus Patent
was assigned to the company by Jerome Bradley, for which
he received one-fourth of the capital stock of the company.
This suit is brought to restrain the Defendant Clements,
Bradley’s licensee and agent, from using the Bradley appa-
ratus, an apparatus constructed as Clements claims in his
answer, in accordance with letters patent granted to said
Bradley and one Scharf on the 18th day of July, 1876, after
repeated struggles in the Patent Office, in his effort to obtain
what had been patented to Bull and re-issued to Louis R.
Keizer some five months previously, and assigned by Louis
R. Keizer to the company of which Bradley was an incorpor-
ator and director on the 15th day of March, 1876, four months
before the said Bradley and Scharf obtained the letters patent
under which the Defendant claims to be working—as the dates
may be important, we give them as disclosed by the record.
Bull Patent; re-issued February 29, 1876; record p. 32.
Same assigned to Complainant Company J/arch 15, 1876,
record pp. 37 and 38.
Bradley, (patent) assignor of one-fifth of his right to
Samuel R. Scharf July 18th, 1876, record p.181. Whilst it
is true that the models in the case exhibit some of the par-
ties working under what is known as The Irazier Patent—
that apparatus whilst being just as clear an infringement as
the other, the inventor of it claims no arrangement of the parts
of the whole machine, but confines his invention to a novel
coupling and other parts connected with this novel coupling,
and a peculiar construction of deodorizer.
It will be seen by an examination of this Frazier Patent, that
every claim contains this coupling as one feature in the com-
bination of its elements except one, (the third) and that one
is for a novel arrangement of deodorizer. (See record p.
186.) |
8
Another feature in the case is the fact that not one of the
apparatuses is shown to have been used anywhere in the
United States prior to the date of the re-issued patent of
Bull, viz., February 29, 1876. Jerome Bradley himself,
whose deposition is subscribed April 13th, 1878, says he had
been engaged in the manufacture of them about five years ;
but this is clearly not true, as he follows the statement im-
mediately by saying he was manufacturing them under cer-
tain patents, one to Scharf in 1875, and the other to himself
in 1876. |
If a single one of the Scharf apparatuses were in prac-
tical use before the date of Complainants’ re-issued pat-
ent, not a witness in the case has ever seen one. If a
single apparatus built according to the method of Scharf’s
1875 patent is in existence at all, it is certain that none
have ever been seen by any one. Neither Scharf himself nor
any one else has been brought upon the stand to testify to
any such thing. The Scharf Patent was intended to be used
with and upon a wagon-body, the apparatus was all ar-
ranged upon the wagon-body, he describes it all in his speci-
fication. We will place in italics what he says of this wagon
body. |
‘‘My apparatus is most conveniently used wpon a wagon
drawn by one or more horses, the letter A denoting such
wagon body. Upon the front end of this body is placed an
air pump Bb, which is properly pivoted in a standard C.
Upon the body A may be placed a sufficient number of proper
tanks, vessels or receptacles,” ce.
Upon an examination of the drawing, it will be seen that
the end of the wagon body is built expressly with a quad-
rangular well through which passes the pipe leading to the
vault. ‘he whole apparatus denotes the use of the tank or
barrel as the patentee describes it, to be used on a wagon
body. Certainly no such apparatus as this is shown in the
case to have been used anywhere, either then or since.
His statement is clearly untrue also from the fact, that
five years would have antedated all of the patents of this class
9
in the case except Bull’s, and would have antedated the for-
mation of the Complainant Company of which he was a cor-
porator ; at that time not only was this apparatus not in use,
but no apparatus except Bull’s, of any description other than
the old night carts with pick and shovel and bucket had been
in use, or were known to any one beyond a few experiments.
It is untrue also from the fact that he was engaged in his
struggles with the Patent Office to obtain his patent from
the summer of 1875, until it was granted in July, 1876, and
not a single witness-has been put upon the stand who ever
saw or ever heard of one prior to the date of the Complain-
ant’s re-issued patent, viz., February 29, 1876. |
It is also untrue from the fact that five years dating back-
wardly from April 13th, 1878, would have made his own
patent void as having been in public use and on sale more
than two years before his application for letters patent,
which was filed in the patent office, June 29th, 1875.
The sales of these apparatuses in the cities mentioned by
Bradley on p. 109, were all made after he had obtained his
patent. One of his witnesses, William H. Boyle, who was his
agent, as he says for awhile, visited a number of these cities ;
his testimony is given on pp. 103 and 104 of the record, it
was subscribed and sworn to on the same day on which Brad-
ley deposes, viz.,on the 13th day of April, 1878, and in
answer to the
“2d Inter. Have you or not had any practical experience
in the use of the apparatus of which Complainants’ Exhibit is
a model; and if yea, for how long?
“ Ans. I have, for about twelve months.”’
William E. Clements, the Defendant in this suit, testifies
on pp. 116, 117, 118, of the record, swears on the 15th day
of April, 1878.
‘2d Inter. Please state how long you have been engaged
in the business of cleaning privies, and by what method or
apparatus, if any ?
“ Ans. Ihave been engaged in the business about six
years both ways: the first way was the old cart system, up
9)
rd
10
until the pump system commenced. I have operated with the
pump for the last two years. In the cart system we used
buckets and scoops. In the pump system I used Bradley’s
apparatus. I am the Defendant in this suit.
“3d Inter. When and from whom did you procure the
Bradley apparatus which you have been using?
‘¢ 4ns. From Jerome Bradley, about two years ago.”’
We have placed the parts in italics, to which we wish to
call the attention of the Court.
This Defendant when examined again before the master
on p. 271, of the record, declares that he got his apparatus
in the latter part of 1877, he thinks they might have been in
use by others before that about one year.
He gives the only account of the date when these appa-
ratuses were first introduced, to be found in the record—this
witness and defendant, like many of the others, stated in
his answer, that they had been using the apparatus since
1875—but when put to the proof of this allegation, they
do not attempt to sustain it; the testimony of Clements on
this point is given before the master, and is as follows, be-
ginning on p. 273 of the record—parts of which we will place
in italics.
This witness had been first asked on p. 271:
“14th Inter. When did you first obtain your pumping
apparatus, and how long have you been working it?
“‘ Ans. Some time in 1877, the latter part. Have been
working it ever since, only when I was stopped at different
times.”
On p. 273.
‘‘A43rd Inter. I now call your attention to the 14th inter-
rogatory and answer thereto, (the interrogatory and answer
are read to witness, by the master.) Are you not mistaken—
obtaining that apparatus in 1877; did you not obtain it be-
fore that ?
“ Ans. I think not, to the best of knowledge.
“44th Inter. In your answer filed in this case you have
sworn as follows: ‘This respondent is not engaged in the
s a
11
manufacture or sale of anything whatever, but is licensed
under proper authority of the City of Baltimore, State of
Maryland, to clean privies, sinks, &c., and for this purpose
has, since July, 1875, and now, made use of an apparatus
constructed in accordance with letters patent No.1158743,
granted toSamuel R. Scharf, and certain letters patent granted
to Jerome Bradley and Samuel R. Scharf, No. 179993, which
apparatus was manufactured by said Bradley and sold to
him by said Bradley,’ etc. Does that answer correctly state
the time when you commenced to use and continue to use the
apparatus therein mentioned ?
“Ans. I think not. I had no apparatus in 1875. I was
in the night business, but Z did not use any apparatus, to the
best of my knowledge.
“45th Inter. Had you not received your apparatus from
Jerome Bradley, and were you not. using it before vou sold
the apparatus to others ?
“ Ans. The apparatus had been sold by some one else, and
now running, about a year before | commenced using or sell-
ing them. I did not use the Bradley apparatus before I
commenced selling it.
“A6th Inter. You have testified that you sold certain
apparatuses to different parties; did you sell these appa-
ratuses to the parties aforesaid before you owned one or began
to work the apparatus yourself ?
‘“ Ans. Yes; I sold these apparatuses before I owned one
myself, but I worked with a man who owned one a year, or in
that neighborhood, before I owned one myself.
‘‘atth Inter. Who was the man with whom you worked
before you owned the apparatus ?
“ Ans. Lewis Minks.
“A8th Inter. Were you working with Minks as partner ?
“ Ans. No, sir.
‘‘A9th Inter. Did you share with him the profits, losses,
and expense of the business ?
Ai Se ees ae
12
“Ans. No, sir; I had nothing to do with him ; my teams
worked for him at wages. He was the first owner of a pump
in Baltimore; he went to Philadelphia and got it a week or
two weeks after he stopped the tanks.
“50th Inter. How long were you selling Bradley appa-
ratuses before you began to work the said apparatus on your
own account ?
“Ans. Imay have sold two or three before I began to work
an apparatus on my own account. It might have been a
month or two, or a little more. I can’t say, but to the best
of my knowledge 1877 was the time I took hold of the sale,
orused it. Bradley had three other men selling it before I
took hold of it. .
“S1st Inter. You have testified that you sold the apparatus
to Ferdinand Drexler; are you aware that Drexler has sworn
in his answer to the suit filed against him that he has been
using his apparatus since June, 1875 ?
“Ans. No; [am not aware what he swore to; if he did
so swear I think he is mistaken, to the best of my know-
ledge.
“52nd Inter. You also swear that you sold it to Daniel
Dougerty ; are you aware that Daniel Dougerty bas sworn
that he has had his since 1875? |
‘Ans. I am not aware what he has sworn to, I have sworn
that I did not have anything to do with them before 1877.
If I did I am very much mistaken.
‘53rd Inter. Are you aware that Frederick Martz has
sworn that he had his apparatus since April, 1876; John
Kinstler, March, 1876, Thomas E. Nash, July, 1876; is it
possible that all of these parties could be mistaken ; parties
to whom you have sold the apparatuses ?
“Ans. I don’t know what they have sworn; they might
just as well be mistaken as [.”’
_It is true that the witness Wrightson says, he has been
working with Mr. Frazier’s apparatus since July, 1875. He
makes no effort to describe it, or to show how it was con-
structed or whether it was the vacuum apparatus, or in any
oe lp
13
way to designate it, no models were shown him. He was
not a mechanic, and probably could not have explained it if
he had been asked. The patent for the alleged infringe-
ment of the Irazier apparatus, as shown by the models was
granted Oct. 5th, 1875; his application for this apparatus
was filed August 5th, 1875. It is hardly likely that he could
have used an apparatus before the patent had been applied
for, and if such an apparatus had been used, it is almost im-
possible that none of these witnesses in the case had ever
seen one at that time—besides it is well known that the
spring and summer is the time when vault cleaning is done,
if witness Wrightson had an apparatus of the Frazier pat-
tern as filed in this case, he must have gotten it in July,
1876.
So far as the Frazier apparatus is concerned, the patent for
that apparatus was granted Oct. 5th, 1875.
The Bull Patent was assigned to Louis R. Keizer, Presi-
dent of the company, on the 24th of August, 1875, and as-
signed by Louis R. Keizer, to the company, by assignment
bearing date Oct. 4th, 1875, one day before the Frazier Pat-
ent was granted.
To the Odorless Excavating Apparatus Company is due,
beyond doubt, the merit of having introduced a system into
the United States, of cleaning wells without odor, to them
alone should be given the credit of abolishing the old night
cart system, and of giving to the public a method by which
work could be done in day-light, and the foulest filth carried
through the streets of the cities with nothing more disagree-
able to the public than the passage of a sand cart—their sys-
tem was immediately acknowledged. Boards of health,
men of science throughout the country welcomed this system
as a public boon—it was done at the cost of much labor and
great expense, the highest premium was awarded to it by the
American Institute of New York, in 1875, and the same
award in 1876 by the United States Centennial Commission,
this was upon their apparatus constructed under the forcing
he ti oe
14
plan, (at that time the vacuum plan as represented by the
apparatuses in this case were not known,) and the judges of
that commission in awarding the premium, declare as fol-
lows:
“4. It being the original apparatus used in this country,
and having inaugurated a reform in theremoval of night soil
from privy vaults, &c., the sanitary advantages of which
cannot be over-estimated.”’
The circular filed in the cause made a part of the record,
beginning at p. 39, shows the character of the labor, and its
success performed by this company at a time when not an-
other apparatus for the purpose was in successful existence.
The company was formedin 1874, among the directors and
incorporators were Messrs. Keizer, Painter and Jerome Brad-
ley—in pursuance of the purposes for which the company
was formed, the Bull Patent was purchased Aug. 24th, 1875,
by Louis R. Keizer, its president—it was assigned by Keizer to
the company in October, 1875, assigned back to him in De-
cember, 1875. Re-issued to him on the 29th of February,
1876, and assigned back to the company on the 15th of
March, 1876.
The original patent to Bull being granted June 6th, 1871,
and the re-issue applied for January 11th, 1876, there was a
period of four years and seven months between the date of
the original patent and the application for the re-issue. On -
the 18th day of July, 1876, eleven months after the Bull Pat-
ent had been purchased by Mr. Keizer, the President of the
company, eight months after the first assignment from Keizer
to the company, five months after it was re-issued ; and four
months after the re-issued patent had been assigned to the
company, the Patent Office issued a patent to Jerome Brad-
ley an incorporator and director of the company, one-fifth
interest in which was assigned toSamuel Scharf, and at once
the country became flooded with these apparatuses, under
agencies appointed by Bradley throughout the United States,
and this is the apparatus against which the company has in-
oo TB
15
voked the aid of the Courts to protect them in its rights.
This suit was brought, and Bradley appears on the witness
stand to swear that he is interested in the suit, and has con-
tributed money to aid the defence.
See his testimony p. 110, of the record, Cross-lnterroga-
tory 2.
Upon an examination of the records in the Pateut Office,
it was disclosed that for a full year Bradley had been engaged
in a struggle with the examiners in the Patent Office, in his
effort to obtain a patent, unknown of course to the company
or its officers. What occurred at the Patent Office is best dis-
closed by the file-wrapper and contents, of which a certified
copy is filed and inserted in the record beginning at p. 243.
We will place in italics, certain portions of this file-wrap-
per, in order that the Court’s attention may be drawn to the
parts we wish to emphasize.
In considering this application of Bradley, it will be
remembered that the Painter and Keizer Patents were the
property of the company as well as the Bull.
The specification begins on p. 244—on p. 245, he says:
“A primary object of my invention is to obtain @ continuous
vacuum as an emptying agent, by the employment of a double-
acting air-pump in connection with a receiving barrel or tank,
as a separate and independent part of the apparatus, and
filled by a vault hose connection, whereby I not only obtain
greater convenience in handling the barrel about the vault, but
the more important advantage of filling the barrel as a sepa-
rate thing by a continuous vacuum,” &c.
On page 246 of the record, the file-wrapper and contents
contains the following, which we will place side with the de-
scription of the same thing in the original Bull Patent.
BRADLEY.
‘It is of much importance
during the operation of filling
the barrel to determine when
itis filled, and this I do by
the combination with the ex-
haust air-hose, and the barrel
of a gauge valve; which auto-
matically maintains an open
position until it is automati-
cally closed by acting as a float
upon the surface of the mate-
rial, as the barrel fills, so that
the valve is closed the sroment
the barrel is filled.
“The effect and operation of
the closing of this valve, is to
instantly prevent the further
working of the pump, by cut-
ting off the passage of air
through it, and hence there can
be no overflow in the barrel.”
16
BULL.
“The lower part of the float-
valve is made of cork or other
light material, in order that
when the cask or receptacle
becomes filled by the action of
the suction pump, it may
press against the ortfice of the
tube and thereby prevent the
contents of the vault A, from
overflowing or extending be-
wet ineomme * * * *
* * by operating the suc-
pump, the receptacle or cask
becomes filled wntil it reaches
the float-valve f, which presses
against and closes the orifice of
the tube leading to the pump.”
On page 248, he says—“ To ascertain when it is filled, /
have combined with the exhaust hose and. the barrel a gauge
valve shown in the drawing as a puppet valve, but it may be
of any construction and arrangement that will answer the
purpose, is placed in the exhaust coupling, and made as light
as possible either of wood or cork to float upon the surface
of the matter as it rises in the barrel, and automatically
close the opening in the exhaust pipe coupling Z, * * * *
so that as the matter approaches the top of the barrel ¢¢ lifts
the valve and closes the air exhaust passage, the effect of which
ws to immediately stop the pump, and prevent the further work-
ing of the apparatus.’
PP rnin eeenmrnenmretnes »
17
The above features he embodies in a series of eight claims,
on page 249. |
F’'rom the beginning to the end of the specification every
page, every line, and we may say every word is erased.
This application is followed by an Official Letter directed
to Bradley to the care of his Attorneys, Johnson & Johnson;
in which all of his claims are rejected, and he is told among
other things that the first claim is rejected on ‘ Patent to
Henry C. Bull, No. 115,565, June 6, 1871.. 2 . .
The second, the third and the seventh claims, are also met
by patent to Bull.” In reference to the 6th claim, he is told—
‘The only adaptation to. privy service is in placing the pump
on a truck, which Painter and Keizer have done in their Pat-
ent, No. 155,670, Oct. 6, 1874.’
On page 251, Messrs. Johnson & Johnson renew the ap-
plication of Bradley, they say—-‘‘ Hrase claims 1, 2, 3, 4, 6,
7 and 8, and insert the following, viz:” then follow five
claims, the same thing occurs with the amended specification
and claims, every line is again erased, and in an official letter
he is told, page 253, : |
“The vault emptying pump is found inthe patent to Bull.”
On page 254, Messrs. Johnson & Johnson, Attorneys,
amend their application again, “‘ by erasing in the amend-
ment filed July 19, 1875, claims 2, 3 and 5,” and instead
thereof submit two other claims.
The lines are drawn also across both of these claims.
On page 255, another amended specification.
On page 256, a letter rejecting claims 1 and 2.
Bradley, as it appears on page 257, dispenses with Messrs.
Johnson & Johnson. and is now represented by Geo. W.
Dyer & Co., of Washington.
This firm renew the application, and on page 258, they
say— |
“ BHrase the entire specification except the signatures and all
of the amendments, and substitute the following: |
Then follows a long description. On page 259 of this de-
scription the following occurs:
3
18
“The barrels are provided with proper couplings for the
hose, and when filled can be transported to any suitable place
and emptied for use again, being provided for that purpose
with suitable sealed openings in one end.”’ sg " a
Add on page 260:
“To ascertain when it is filled. I have combined with the
. the exhaust hose and the barrel a gauge valveg * * *
It is placed in the exhaust coupling, and is made as light as
possible either of wood or cork, to float upon the surface of the
matter as it rises in the barrel, and automatically close the open-
ing inthe exhaust pipe coupling Z.”
On same page the specification concludes with three claims,
the lines are drawn around and about them, erasing the
whole, on the margin in the manuscript copy, appears in lead
pencil, opposite the first claim, the words
ered and in the same margin, opposite the second claim,
appear also
Painter, PI
Bull
in lead pencil the words
Bull.
On page 261, another official letter, rejecting the two re-
maining claims, and as to the first claim, they say—‘“ see
Painter & Keizer’s pump for emptying cess-pools, No. 155,670,
Oct. 6, 1874.”
Referring to the second claim, they say—
“Bull’s Patent, No. 115,565, June 6, 1871, answers the
second claim,” p. 262.
Sv that the record shows that of the first application, he
is told that his first, second, third and seventh claims are
met by the Bull Patent, and the sixth by the Painter and
Keizer, which application he renews and starts out by eras-
ing the first, second, third, fourth, sixth, seventh and eighth
claims, and this amendment he is told again he is encroach-
ing on Bull. He makes a third application with two claims,
these are also rejected. He then employs other attorneys,
who order the entire specification to be erased except the
’
19
signatures, and submits again for a fourth time his applica-
tion with three claims ; he erases the third of his own accord,
the other two are rejected again ; on the first he is referred
to the Painter & Keizer Pump, iad the second is rejected
again on the Bull Patent.
Three times he is told that he is attempting to claim in-
ventions shown to be in the Bull Patent, and four times he
renews his application in the vain endeavor each time to get
a patent for something which Bull does not describe or
show.
In view of the proceedings in the Patent Office it cannot
be said that the Complainant company were attempting to
cover the invention of Scharf or of Bradley & Scharf, it is
too clear for controversy that Bradley was attempting to
obtain from the office a patent for that which he knew, as a
corporator and director of the company, belonged to it, and
to gather to himself the rewards of the time, labor and
expenditures of the company.
In the light of the above facts we respectfully ask the
Court to construe the re-issued patent upon which this suit
is brought, and if the Court find that Bull was clearly the
inventor of the things claimed and was entitled to claim
them as his invention in view of the state of the art, and
the Court further find that the infringement was clear,
we ask that the decree of the Court below be affirmed.
The most casual glance at the Bull apparatus by one con-
versant with the state of the art would show that its chief
merit lay in—
Ist. Its capacity to be used at any well of any depth; 7. e
with the tank in the vault house, or down in the well, ac-
cording as circumstances required.
2nd. The ease and facility with which it could be closed
when filled so as to hold the contents and handled without
trouble and without offensive odor.
3rd. Its capacity for ascertaining when the barrel was
filled, so as to prevent the filth from entering the suction
air-pipe and pump, to stop the flow of fecal matter when
20
there was sufficient in the barrel, and this no matter where
or in what position the barrel was placed.
4th. Its simplicity and compactness.
Sth. Its capacity to form and maintain a continuous
vacuum.
That these were the features which made the Bull appa-
ratus a success, when Walter Cherrier and all other appa-
ratuses of the vacuum system had failed, and that these
features were inherent in the structure as clearly shown in
the original patent, and indicated in the drawing and
Patent Office model, as well as in the specification, it will be
our duty now to show; that the specification was amended
in order to make this more clear, and that as amended it
contains no more than the patentee was entitled to we hope
to be able to demonstrate.
The cleaning of wells and sinks as introduced in this
country by the Odorless Hxcavating Apparatus Company,
the Complainant in this suit, consisted first of what is known
as the forcing system; under this system the pump and
pump only could be located near the privy and vault; the
suction pipe leading from the pump was dropped into the
well and the contents of the well were thus drawn into the
pump, passed through the pump and by the pump piston
were forced intoa large tank or tun. This tank or tun
was placed wherever room could be found for it, in the
street or alley nearest the premises; as the matter entered
this tank and expelled the air whose place it supplied, the
foul air passed through a deodorizer; this system is well
illustrated by the apparatus shown in the wood-cut between
pp. 44 and 45 of the record; this apparatus with the im-
provement in pumps, valves, &c., as shown on p. 45, the
inventions of Messrs. Painter & Keizer, was the first success-
ful apparatus of the kind ever used in this country.
To this class of apparatus, belong the Straus, Lesage, and
Courdier, filed in evidence in this cause.
The other great system is what is known as the vacuum
system; this system comprises all of those apparatuses
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21
which form a vacuum in the tank, in which the contents of
the vault never enter the pump, which is used only for the
purpose of creating a vacuum in the tank.
The only two apparatus shown in the case belonging to
this system are the Cherrier and the Walter, prior in date to
the Bull patent. The Bull patent, however, and its infringe-
ments, such as are shown in the Bradley and Frazier
apparatuses, are those which are in use, as no machine con-
structed like either the Walter or the Cherrier exhibits have
been shown ever to have been in practical use anywhere.
In order to show the merit of the Bull invention as illus-
trated by the patented devices which preceded it, we will
take those exhibits which are filed as affecting the validity
of the first claim, and dispose of those of the forcing system
in the order of their dates, first
FRANCOIS LESAGE.
The drawings of this apparatus are inserted in the record
immediately before page 167, and the description in the-
French language begins on p. 167 and ends on p. 175.
This apparatus is one of those large tuns which cannot
and never was intended to be brought at or near the vault,
unless the vault to be cleaned was located in an open field.
Certainly as these vaults are arranged in the cities and
towns this large tun would have to remain in the street, and
the contents of the vault passing through the pump are
forced thereby to the tank. it is evident from a glance at
the apparatus that no well of a greater depth than 25 feet
could be emptied by this apparatus. The differences be-
tween it and the Bull apparatus are so clearly pointed out
and explained by Mr. Renwick, that we will quote his testi-
mony thereon, to be found in the record on p. 125:
“J have examined the drawings and descriptions of Les-
age, and have compared them with the Bull apparatus, and
I do not find described or represented in Lesage the appa-
ratus described in the Bull Patent, and referred to in the first
22
claim thereof. The Lesage apparatus, in its various modifi-
cations, works substantially in the same way. It does not
use an air-pump for exhausting a receiver of any kind, so
that the fecal matter shall flow into a receiver of this kind
by means of atmospheric pressure, but on the contrary, uses
what is commonly known asa lift and force-pump, for fore-
ing the fecal matter into a large tun, supported on wheels,
in which tun no vacuum ever exists. In the Lesage appa-
ratus, the fecal matter all passes through the pump; in the
Bull apparatus none of them pass through the pump. In
the Bull apparatus the receiver must have a vacuum formed
and maintained in it; in the Lesage apparatus a vacuum is
never formed in the receiving-vessel. In the Bull apparatus
the pump drives the foul air directly into the deodorizer,
while in Lesage the foul air goes from the receiver into the
deodorizer. In Bull the tubular. connection, through which
matters are forced up by atmospheric pressure, is connected
with the receiving vessel ; in Lesage the same pipe is con-
nected with the pump. In Bull the pump hes between the
receiving-cask and deodorizer, and is an air-pump pumping
nothing but air or gas; in Lesage the pump lies between the
privy-vault and the receiver, and pumps feecal matter through
the pump. Now even under the supposition, that an air-
pump and force and lift-pump are one and the same thing,
(a supposition which is usually, if not always, incorrect,)
and under the supposition, that the large tun on wheels is
the same as the independently portable receiving-cask of the
Bull Patent, the elements in Lesage are combined in an en-
tirely different manner, and so as to act in a different way
from the way they are combined and act in the Bull Patent.
The Bull Patent. works on the vacuum system, as it is com-
monly called, that is, by making a vacuum in the receiving-
cask, and the Lesage apparatus works on what I call the fore-
ing system, in which the faecal matter is forced by means of
a pump into a receiver. —
‘16th Inter. Answer the last interrogatory in relation to
the third claim of the Bull Re-issue ?
]
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23
“ Ans. The combination claimed in the third claim of the
Bull Re-issue, does not exist in the Lesage description, be-
cause neither the drawings nor descriptions of Lesage repre-
sent or refer to any valve closed by a float, which is one of
the elements in combination with other elements in the third
claim of the Bull Patent.”
Mr. Renwick is asked to compare the Courdier apparatus
with the Bull Patent in the same way, which he does as fol-
lows:
“Ans. Ihave made the comparison and do not find in
Exhibit ‘I’ of the Courdier descriptions and drawing, the
combinations referred to in either the first or third claims of |
the Bull Reissue. The Courdier apparatus is a forcing appa-
ratus, having substantially the same elements as the Lesage,
combined in the same way, and to produce the same effect,
and all I have said as to the differences between Lesage and
Bull may be said with regard to the differences between
Courdier and Bull, the differences are the same in both cases.
The Courdier apparatus has a float, which when the large
tun is sufficiently full, rings a bell to notify the operator,
but it has not a float actuating a valve, in combination with
the air-pipe of an air-pump, and therefore does not exhibit
the combination referred to in the third claim of the Bull
Re-issue.”’
With Mr. Renwick’s testimony on the differences between
the Straus and the Bull Patents, we will conclude our ex-
amination of the force pump exhibits ; his testimony is given
on pp. 127 and 128 of the record:
‘‘T have examined Defendant’s Exhibit K, and it does not
describe or represent the combinations described in the Bull
Patent, and referred to in the first and third claims thereof.
The apparatus, described by Straus, consists of a peculiar kind
of lift and force-pump, a receiving vessel, and a deodorizer.
The pump is peculiar, in that it has its valves worked by
cams or toes, instead of as usual, having these valves self-
acting and open and shut by differences of pressure. The
receiver, as I understand it, is to be air-tight, and constructed
24
in any suitable manner, and the deodorizer is an ordinary
deodorizer. In the operation of the apparatus, the induc-
tion-valve-chest of the pump is to be connected by means of
a hose with the feecal matter in the vault; the eduction or
delivery-valve-chest of the pump is connected by another
hose with the receiving-tank, and this tank is connected by
a third hose with the deodorizer. When the pump is put
into operation, it will lift faecal matter from the vault, such
matter passing through the pumps and through the valves
thereof, and the pump will force this matter into the re-
ceiver, which has a pane of glass inserted in it, so that a
watcher may see when it is full. The gases arising from the
feecal matter in the tank will pass through the third hose I
spoke of, into the deodorizer, and be deodorized there. In
this contrivance the pump acts as a lift and force-pump, and
the fecal matters pass through it. In Bull’s apparatus the
pump is an air-pump, and no fecal matter ever enters it. In
Straus, the vacuum is never formed in the receiving-tank,
and the fecal matter is forced into it, by pressure exerted by
the piston of the pump. In Bull’scontrivance, a vacuum is
formed and maintained in the receiving-vessel, and the fecal
matter rises therein by what is commonly called suction. In
Straus, commencing with the vault, the elements of the
apparatus are arranged, as follows: First, suction-hose ;
second, lift and force-pump; third, delivery-hose ; fourth,
receiver; and fifth, deodorizer. In Bull, commencing with
the same point, there is, first, suction-hose ; second, receiver ;
third, air-hose leading to the air-pump; fourth, air-pump ;
and fifth, deodorizer. It will therefore appear, even supnos-
ing the elements the same, that they are not only arranged,
but also combined in a different way from Bull, so as to work
in a different manner; and I therefore do not find in this
Straus Patent the combination referred to in the first claim
of the Bull Re-issue. Straus does not describe in his patent
any float-valve which will stop the flow of the fecal matter,
but provides the receiving-tank with a glass window, in
order to ascertain when it is full, and therefore does not ex-
25
hibit the invention referred to in the third claim of the Bull
Re-issue.”’
It is plain from these illustrations that none of these ap-
paratuses ever were intended to be used, and could not be used
in the same way as the Bull apparatus; that they do not
present any of the features which make the Bull apparatus
valuable—none of them could be placed within the privy,
the tanks could not be lowered or manipulated, and none of
them could empty a deep well.
We approach now the devices belonging to the vacuum
system, and a short review of them will suffice to show the
great merit of the Bull invention—and first
THE CHERRIER.,
The drawings of this apparatus are inserted in the record,
between pp. 188 and 189, and the description thereof begins
on p. 187, and ends on p. 191.
The description of this apparatus is given in full and elear
terms by Mr. Renwick, beginning on p. 122 of this descrip-
tion and comparison between it and the Bull Patent we
will quote only his answer to /nfer. 14, beginning ou p. 128.
“14th Inter. Referring to the 26th Interrogatory, on page
33 of the printed testimony, Mr. Dodge is asked, in relation
to the Cherrier, what elements, if any, he finds therein,
claimed in the first claim of Complainant's Exhibit Re-issue.
I now ask you, if you find in sail Exhibit Cherrier, the
same combinations as described in Complainant’s Exhibit
Re-issue, and referred to in the first claim thereof, and give
your reasons ?
“Ans. I donot. One of the elements of the claim of the
re-issue is the independently movable cask, which is so con-
nected with the privy-vault and the air-pump, that the
feecal matter may ascend directly into the movable cask in
which it is carried away, and so that a vacuum may be
formed and. kept up or maintained in this movable cask,
while it is being filled, this maintaining of the vacuum
4
26
enabling the cask to. be filled full, instead of only being
partially filled, like the upper recipient B of Cherrier.
Now I do find in Cherrier an air-pump, which is one of the
elements of the first claim of the Bull Re-issue, a receiving-
cask, which is another of these elements, and a tubular con-
nection, extending down into the vault, so that the fecal
matter may rise into it, and I also find in Cherrier a
deodorizer, arranged in relation to the pump substantially
as it isin Bull. [do not find in the description or drawing
of Cherrier, any hint or description, that the independently
movable cask has two openings, nor screw-necks nor their
equivalent on those openings, and J do not find that these
elements of Cherrier are combined in the same way as they
are in bull, or to operate in the same way, or without the
aid of several other elements, not needed in the Bull combi-
nation. In the first place, the pump is so combined with
the independently movable cask in the Bull Patent, that a
vacuum can be formed and maintained therein, and this is
the cask in which the filth is carried away. Now the air-
pump of Cherrier is not directly connected with this cask,
as in Bull, norisiteven combined indirectly with it, through
the medium of the recipients and spout, it being evident that
the pump cannot be worked to any useful effect in Cherrier,
while the cocks are open through which it is connected with
this cask, and the Cherrier pump can never make or main-
tain a vacuum in the cask, in which the filth is carried away.
Second, in Cherrier the ascending pipe is never combined
with the movable cask, as it is in Bull, so that the matter
may ascend directly from the privy into the cask in which
it is carried away, and never, in Cherrier, gets into that
cask by being forced up by atmospheric pressure ; in Cherrier
the matters run through a spout into this cask by gravity,
and while it is so being filled, the ascending pipe is either
entirely cut off from the cask by shutting the cocks, or if it
be left open to the cask, it will let the matter fall in the
ascending pipe while the cask is filling, instead of rising in
that pipe while the cask is filling, as it does in Bull. If it
See RN oN NEO MO a ee RIE AIG OO —
27
should be stated that the recipient B is the equivalent of
the independently movable receiving-cask or portable night-
soil cask of Bull, then I should state, that this recipient was
not independently portable, was not intended and could not
be used for carrying away the night soil received into it, and
was not intended to be used as Ll have before stated, in such
a manner, that a vacuum could be maintained while it was
being filled; and further, that it has not any screw necks,
or their equivalent, which are the very means by which the
ask of Bull is capable of being made independently porta-
ble, so that it will both receive the night-soil from the privy
and permit of its transportation, after being disconnected
from the tubular connection, by means of which it is put in
connection with the fecal matter in the privy and with the
air-pump.
Without at present calling the attention of the Court to
the differences between the testimony as to the mode in
which this apparatus performs its function, we desire here to
remark that at least the witnesses are agreed upon one thing,
that is, that the apparatus in order to perform its functions
requires all the parts above named, and could not work at
all as constructed in the absence of any one of them; that
is to say a rigid frame, three receiving tanks, five tubes, five
cocks, all bolted rigidly together, are each and all necessary
parts in. the combination which taken together, and with the
pump deodorizer, and manometer make the apparatus com-
plete, and none of these could be dispensed with. Upon
this point we say-—whatever may be their differences on
other points—Dodge, Renwick and Cherrier are all agreed,
and were we to stop here and point out to the Court, that
the Bull Re-issued Patent dispenses with twelve of these
parts in the combination of the Cherrier, namely: one frame,
two receiving casks, three tubes, five cocks and one mano-
meter, it would require very little argument te show the
difference, we mean the patentable difference between the
two, and the real merit of Bull in perfecting his apparatus.
— ana
28 e:
The cross-examination of Mr. Renwick serves only the
purpose of bringing out more clearly these differences. (
On p. 146 of the record he is interrogated as follows :
“86th Cross-Inter, From your last answer I infer, that
you consider that the Cherrier apparatus anticipates the é
combination referred to in the first claim of the Bull Re-issue,
so far as it is used merely for the purpose of filling the re-
cipient or receiving-vessel. Is that so?
‘¢ 4ns. Your inference is incorrect, it is not so.
“87th Cross-Inter. Why not?
“Ans. Because the recipient of Cherrier is not indepen-
dently portable, but is firmly connected to the pump, firmly
bolted to the suction-pipe, firmly fastened to another recipient 9
and to a cast iron stand, and because it has no screw-necks,
and because it is not a vessel in whicb the fecal matter
can be carried away.
“88h ( ross-Inter. Are those the only reasons?
“Ans. Yes, all that I think of now.”’
We will conclude by quoting the testimony of Renwick —-
on the
WALTER PATENT.
The drawings of this apparatus appears in the record in
front of p. 204. The specification begins on p. 202.
Mr. Renwick’s testimony which we quote is given on pp.
126 and 127 of the record. |
“Ans. I am well acquainted with the Walter Patent
Exhibit ‘J,’ and have again looked at it since the question
was put. The Walter apparatus is a large tun mounted on
wheels, and has firmly bolted to it two air-pumps, which are
by means of proper pipes and passages so connected with
the receiving-vessel or tun, that the operation of the pumps, iia
during the dragging of the tun on its wheels, will create a
vacuum in the receiving-tank ; in order that the pumps may
perform this duty, they are furnished with levers, which are
actuated by cams, keyed on the hind wheels or hind axles of
29
the running gear which supports the tun, the whole con-
struction being such, that when the tun is drawn along with
the various cocks and connections in their proper position, a
vacuum will be formed in the tun. The operation of the
contrivance is as follows: supposing the tun to be empty, it
is to be drawn to the privy to be cleaned out, and while
being so drawn, the pumps create a vacuum in the tun or
receiver. When the apparatus is in place, a suction hose
is to be attached to the tun at one end while the other end
is to be dropped into the feecal matter in the vault. If the
valve on the pipe to which the hose is attached be now
opened, the fecal matter will rise into the tun, until the gas
emanating therefrom destroys the vacuum in the tun; in
this way the tun can be partially filled with feecal matter..
In this Walter apparatus, the air-pumps, as I before stated,
are bolted fast to the tun or receiving-vessel, so that the
latter is not independently movable, and+the pumps must be
carried away with the receiving-tank whenever it is moved
from the privy, which is not the case with the Bull appa-
ratus; further, in this apparatus the vacuum cannot. be main-
tained or kept up during the filling, and: consequently the
tun can never be filled full, the contrary being the case in
the operation of Bull’s combination; and lastly, the tun has
no air opening, provided with a screw-neck, so that an air-.
hose leading from an air-pump can be attached to and de-
tached from the tun. Now even under the supposition,
(which I believe to be incorrect,) that the large tun of
Walter, with its rigidly attached running gear, 1s the same
thing as the portable cask of Bull, it will appear that this
tun has not one of the necessary appurtenances of the Bull
cask, which is one of the elements of Bull’s first claim:
second, that it is not an independently movable cask, but
must, whenever it moves, carry the air-pumps along with it;
and third, that the combination of the air-pump with the
other part of the contrivances in Walter, is such, that a
vacuum is not kept up or maintained in the tun, while it is
being filled, in consequence whereof the tank is never filled
30
full: it is evident, therefore, that the combination described
in the Walter Patent is different from that referred to in the
first claim of the Bull Re-issue. As the Walter Patent does
not describe any float-valve in combination with the pipe
leading to the air-pump, (the fact being that such valve is
entirely unnecessary in his apparatus,) the Walter Patent
does not describe or refer to the elements making up the
combination of the third claim of the Bull Re-issue.”’
It is plain that nothing contained in the above exhibits
affects the rights of Bull or his assignees in as patentee
and inventor of those features in his apparatus which
give it its great value; the question is plainly put to Mr.
Renwick, and we ask permission of the Court to introduce
the question here, and his answer thereto, as a part of our
argument In the case.
The question and answer are contained on pp. 128 and
129 of the record : .
20th Inter. | now ask you the same question that was
d by Defendant's counsel of Mr. Dodge, in the 36th in-
terrogatory on page 38 of the printed testimony, as follows:
In view of the Patents of Cherrier, Lesage, Courdier, Wal-
ter and Straus, what restrictions, if any, should be placed
upon the first claim of the Reissued Patent 6,962, (Com-
plainant’s Exhibit Reissue) ?’’
Ans. None that I can see. The contrivances of Courdier,
Straus and Lesage, although unlike in some points, all work
without the aid of an air-pump, all work by the aid of a
and lift-pump, all pass the fecal matter through the
pump, all force this matter into the receiver, and never
either make or maintain a vacuum in the receiver. They
therefore all of them exhibit different combinations from
that referred to in the first claim of the Bull Reissue.
The apparatus of Walter does use an air-pump, and
does make a vacuum in the receiving-tun, but it never main-
ains that vacuum while the tun is being filled; and in the
Walter apparatus the tun is not either independently mov-
able or portable, because in Walter, the air-pumps are so
-
[
or
—
oo
en oe eee
3 |
secured to the tun, that neither can be moved without the
other. In the Bull apparatus, the receiving-tank is inde-
pendently movable and portable, and the pump is so com-
bined with it, that the vacuum cannot only be formed in the
receiving-tank, but can be maintained or kept up therein
while it is being filled. If Bull’s apparatus were made to
conform with Walter's, (leaving out the question of the
portability of the receiving-vessel,) there would be in Buil’s
apparatus a pump for every receiving-cask, and the casks
could not be filled full. Bull’s contrivance, therefore, is
economical as contrasted with Walter, in the fact, that it
needs only one air-pump for several receiving-casks, and that
the casks may be filled full; and further, in the fact, that
the use of the portable cask enables work to be done by
means of the Bull apparatus, which could not be well per-
formed, if performed at all, by Walter's. I refer here to
the capacity that the Bull receiving-cask has, in being placed
close to or in the privy itself, while in many instances, the
Walter must be kept at a great distance, thereby necessi-
tating the use of long lengths of suction-hose, which are
liable to leakage at the joints, and which moreover compels
the fecal matter to move under considerable friction, thereby
preventing the apparatus from emptying as deep a privy as
it could empty, if the receiving-tank could be placed near
the privy. Further, the Bull portable receiving vessel can
be lowered down into the vault, so that a vault of any
depth can be emptied. Now as Walter cannot keep up and
maintain a vacuum, as he has no independently movable re-
ceiving-tank, as he has no portable tank, which can be always
brought close to, or, if necessary, lowered into the vault, it
is my opinion, that the state of the art exhibited in the
Walter Patent, does not limit the first claim of the Bull
Reissue.
‘¢T have already referred very fully to the construction of
the Cherrier apparatus. One great feature of the Bull ap-
paratus is, that it forms and maintains a vacuum in the
very cask in which the fecal matter is carried away. This
‘ye
32
fecal matter is carried away, being
lently, but directly, through the hose, connected
or privy and with the air-pump. Now in
he cask in which the fecal matter is transported
had a vacuum formed in it, and consequently
vacnum maintained in it; and this receiving
tly connected with the vault by a hose, nor
onnected with it by a pipe or hose, in such
cask would fill by suction as the Bull cask
the eask of Cherrier combined with the air-
r indirectly, in such manner that, asin Bull,
form avacuum in the cask in which the
neported In fact, in Cherrier the pump is not
the cask at all, because the operation of the
produce any effect upon the cavity of the
apparatus, it is. true, has a cask, has an
leodorizer, has a tube leading from the air-
eiving vessel, other and different from the
» connection between the pump and the
ese elements are not combined in substan-
manner in which they are combined in Bull,
used at all without the aid of the two spher-
passage bet ween them, the stop-cock in
}
spout, the stop-cock in the spout, and I do
used practically without the use of the
nction-pipe from the vault, and the air-cock
inder the supposition, that the cask of
w-neeks of the Bull Patent, and under
supposition, that Cherrier’s apparatus
ntially the same way as Bull’s, it would
Bull combination dispenses with the two
and the stop-cock of the Cherrier con-
that the state of the art represented
loes not limit the first claim of the
is nndoubtedly limited by its own lan-
:tien. in which a vacuum is formed in the
is independently movable, and which
3
is the very cask used for carrying away the fecal matter,
thereby dispensing with the use of a secondary cask, with
the labor of filling it, and with the annoyance of slopping
the filth, and escape of gas, while it is being filled through
a spout.
“21st Inter. I desire now to call your attention to the latter
portion of Mr. Dodge’s answer to the 37th interrogatory, on
page 39 of the testimony, as follows: ‘As I view this Bull
Patent in the light of the state of the art, as shown by the
several exhibits, the only thing which he invented was his
peculiar receiving-tank, and the arrangement for letting it
down into the vault.” Do you agree with Mr. Dodge in this
view, and if not, why not ?”
“Ans. I do not, and Ido not think that Bull limits him-
self to any peculiar receiving-tank. It is called a cask, both
in the original and in the reissue, and is not described as
being made in any special way. Bull does describe special
appurtenances or accessories to the cask, and the first claim
is not limited by the state of the art, but by its own lan-
guage, to a cask provided with two of these appurtenances,
namely, the screw-necks. I have already gone over at
length the exhibits referring to the state of the art, and
have given my reasons why the state of the art does not
limit the first claim, and do not think it necessary to repeat
them. I will further state, that Bull did not invent a block
and tackle, which Mr. Dodge seems to think is one of the.
two things he did invent. I have known of a block and
tackle with a cask slung on it, for more than fifty years.”
We think then it is too plain for controversy, that the
invention of Bull, as shown in his first claim is not limited
by the state of the art as it existed at the date of his inven-
tion.
As with the first, so with the third claim, and without
quoting all of the testimony in relation thereto, we will ask
the Court to read it; that of Mr. Dodge on these exhibits
begins at the bottom of p- 89, of the testimony, the cross-
examination of Mr. Dodge begins on p. 92, of the record.
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34
Mr. Renwick, on the exhibits filed as
second claim begins on p. 130, of the
hem up in order, The Heald, Patrick,
Enerclopedias and Perrigo.
these exhibits a float valve com-
issage leading to a pump for the pur-
stent, and beyond a doubt Bull was
most useful feature of the machine.
ndant labored hard to show that there
s arrangement of float valve of Bull;
Renwick is asked as follows:
tate of the art as it was in 1871, did the
the third claim of the Bull Re-issue,
the part of a mechanic of ordinary
ranch of mechanics to which that com-
In what particular was invention re-
the idea that the flow of liquid
stopped by shutting off the pipe, by
was formed in the said vessel, at
¢ the flow of frecal matter into the
itself: and second, in combining
produce that effect. After I
i| engineer, that my plan was
. vessel, and prevent the liquid
snd pump, by means of a float
mouth of the pipe leading to the air-
ilso, that I wanted the devices
ractically fill the barrel full, a
x i probably have devised the com-
ut my plan, without the exer-
experience with ordinary me-
yne conid carry out the inven-
49
. ORO cmt om
49
5
Ss)
tion, even after the idea had been explained to him. By
ordinary mechanic, I mean, for instance, a plumber who was
versed in the construction of ball-cock valves.”
It cannot be denied that Mr. Bull was clearly the inventor
of this most useful improvement. An improvement like the
devices shown in the first claim, was not limited by anything
shown by the state of the art. 3
If then the re-issued patent and its claims with the devices
shown therein were novel, was it not clearly within his rights
and the rights of his assignee to have his patent re-issued,
in order that those rights might be clearly defined and
pointed out.
In the case of James vs. Campbell, 104 U. S. Rep., p. 371,
the Court says:
“ Of course, if by actual inadvertence, accident or mistake,
innocently committed, the claim does not fully assert or de-
fine the patentee’s right in the invention specified in the pat-
ent, a speedy application for its correction, before adverse
rights have accrued may be granted, as we have explained
in the recent case of Miller vs. Brass Company,” (supra p.
350. )
And in the case of The Powder Company vs. Powder Works,
98 U.S. Rep., p. 137, this Court in: speaking of re-issues
uses the following language:
“The danger to be provided against was the temptation to
amend a patent so as to cover improvements which might
have come into use, or might have been invented by others
after its issue.”’ |
As these are the latest expressions of the Court, defining
the law on the subject of re-issues, we have seen an award of
the highest medal to this company by the Centennial Com-
mission iz 1876, in which the judges declare of the Complain-
ant’s apparatus under the forcing system, that it was the
original apparatus introduced in this country—this apparatus
was introduced by the Complainant's company, organized in
1874. At the time of this report in 1876, the forcing
system stood alone without a competitor in the market,—
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apparatus, its full capacity would be strongly tested in an
effort to clean an ordinary vault to a greater depth than
twelve feet below the surface of ifs contents.
We are aware that the first claim of: this apparatus, was
an arrangement “whereby vessel and pump are indepen-
dently movable about the vault,” but it is perfectly apparent
upon the most casual inspection of the drawing and descrip-
tion of the original Bull Patent compared with the first
claim of Scharf, that there is no difference whatever between
the two apparatuses, except that he puts a flexible pipe from
the barrel to the well, and puts the flexible pipe in the top
of the barrel instead of in the bottom.
Taking Bull’s apparatus as shown and described in his
original patent, and place the tank on the seat in the vault-
house with the funnel in the ordinary hole or opening in the
seat, and a pipe either rigid or flexible extending down into
the faecal matter, and it seems to us impossible to come to
any conclusion than that they are identically the same appa-
ratus, operated in the same way; and whatever differences
there may be, is the work of a mechanic and not of an in-
ventor. |
Indeed, the expert for the defence, with every disposition to
make a good case for his clients, virtually admits this in
cross-examination, see p. 97 of the record, and was finally
forced to declare that the substitution of a flexible hose for
the funnel O in the Bull apparatus was not invention, he
admits this in the following testimony on p. 98 of the
record :
“33d Cross-Inter. In case a tube, such as 1] have de-
scribed, was used upon the receiving-cask, as shown in said
original patent, could you not place the cask on the seat of a
privy-vault, the tube passing through the hole, and extend-
ing into the matter in the vault, and inthis way empty the
vault of its contents, if it was not too deep, without the use
ot a block and tackle ?
‘Ans. Yes, if the hole in the privy-seat were large
enough to receive the tube with its funnel, but in such a
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thence into an air-pump, and discharged through a deodorizer
containing chlorine or chlorides substantially as’ described.”
In the Bull original apparatus the process is fully de-
scribed and shown, the noisome air first enters the tank, thence
the air-pump, and is discharged through a deodorizer, con-
taining a charcoal fire.
For at least a hundred years, charcoal fires, and chemicals
have been used as well known substitutes for each other in
deodorizing—in the Walter apparatus filed in this case, the
deodorizer there used is spoken of as acids or chemicals.
How such claims as these could possibly have been granted
to Scharf in the face of the patents filed in this cause is hard
to understand ; and when the Court speaks of improvements
which might have been invented by others, it meant invented,
not merely patented, that it was speaking of meritorious in-
ventors who had added some improvement to the art or pro-
cess.
It is evident, however, that this apparatus was not intended
to be lowered into a vault to clean a deep well, from the fol-
lowing clause in the specification.
“Tn order to ascertain when the tank or - receptacle D is
sufficiently filled, there may be placed in the head an ordi-
nary float with its stem projecting through the head, or the
ordinary mode of striking upon the tank from time to time may
be used, in which mode the progress of filling may be deter-
mined from the sound.”
It is hardly necessary to state that the mode of striking
on the tank could not be used if the tank were down in the
well. Nor is there anything from the beginning to the end
of the Scharf Patent which designates any method of closing
or sealing the cask. The apparatus used as described upon
a wagon-body, and without a method of sealing would not
infringe Bull’s first claim-—-and where the mode of ascer-
taining when the tank is full by striking upon it were used,
without the valve, it would not infringe his third claim.
He must go outside of the things which he supposes neces-
sary to his invention before he infringes.
ii)
fore was not re-issued to catch Scharf.
the float valve of the Bradley
, r the method of closing the tanks
| Schart model, before he can be
ent lt may here be stated as dis-
bradley and Scharf were placed in
bo mt Cdtthies Bradley was the appli-
was declared between the two,
it was issued to Bradley. as-
ssned to cover the-invention of Fra-
-_—>
l‘razier as shown by
ms, consist of the features of his
| odorizer, nothing of this kind is
full Re-issued Patent.
issued to eover the Scharf and
tent as we have seen was not in
months after the re-issue was granted.
reissued patent was granted at
ements had not come into use, nor
nventions of others after its issue
"
, Court on the same grounds, and subject
in Seymour and Oshorne and Brown and
tled to the saving clause announced in
mmpbell, where the claims of the original patent
issert or define the patentee’s right in the in-
, 7 is application for a re issue was made, ‘“ before
lvers gehts had accrued.”
ease has none of the obnoxious features, upon which
thie ('onrt has passed its censure.
like the ease of the Swain Turbine Co. vs. Ladd,
«herein the patentee had claimed a specific device in a well-
wn class of water wheels, and after waiting for twelve
rs ssued it and claimed at entire water wheel.
it has none of the features of the case of Johnson vs. The
Flushing and North Side R. RP. Co., where the invention in
riginal patent was for an “improved mode of fastening
|
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e
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sheet metal on roofs,” &c., when after waiting fifteen years, it
yas reissued to capture, all the fish-plates on railroads which
had come into general use in the meantime. It is clearly
nothing like the case of Jliller vs. The Bridgeport Brass Co.,
where the patentee’s invention was a failure with the two
domes without the chimney, as patented, waited for fifteen
years to discover that the chimney with one dome was his
invention, notwithstanding one object of his original inven-
tion, was stated to be to dispense with the chimney.
Nor is it like any of these later cases; it is the case of a
meritorious invention reissued within a reasonable time, to
cover only that which was substantially indicated and sug-
gested in the original patent, to define more clearly the pat-
entees rights, to embody them ina more perfect description,
and claim, and this we understand the Court to declare may
be done, in the case of Marsh vs. Seymour, decided in 1877—
Ball vs. Langles, in 1880; The Swain Turbine Co. vs. Ladd, in
the same year, J/iller vs. The Bridgeport Brass Co. and James
vs. Campbell, in 1881.
In a case like this we understand the law to be as defined
by this Court, that a patentee may redescribe his invention
and include in his specifications and claims, whatever was
indicated or suggested in the specification, claims, drawings,
or Patent Office model, which properly belonged to the in-
vention as actually made and perfected, without new matter.
Marsh vs. Seymour, 97 U.3S., p. 356.
Ball vs. Langles.
James vs. Campbell, 104 U.S., 371.
Swain Turbine Co. vs. Ladd, 19 O. G., 62.
The questions therefore which we wiil present tothe Court
for consideration will be.
Ist. Does the re-issued patent contain anything more that
what was suggested, and fairly indicated in the original
patent ?
2nd. Has any new matter been introduced ?
As to the first question, we ask the Court to take the origt-
nal patent and examine it.
6
42
The first thing which strikes the attention, is the fact stated
that the invention relates to an improvement, whereby
night soil may be “ removed and utilized.”’
He then proceeds to describe a vault to be cleaned. Then
says, “/ represents one of several casks or receptacles for re-
moving the fecal matter from the vault.’’
It has located at its lower extremity the funnel 0, which
fits air-tight upon the neck, 7, and the valve d, which opens
upwardly ; at its apex the float-valve f is provided, which
screws upon or is otherwise caused to fit air-tight upon the
neck 2.” * * * * * “The lower part of the foat-
ralve is made of cork or other light material, in order that
when the cask or receptacle becomes filled by the action of
the suction-pump it may press against the orifice of the tube,
and thereby prevent the contents of the vault 4 from over-
flowing or extending beyond the cask B. * * * * * *
V, represents one of a series of caps, which are screwed upon
the neck or necks of the cask A, when filled by the action
of the suction-pump. He then describes the operation of
his apparatus, the seat or floor is removed, the receptacle
B is suspended over the opening, then lowered until the
funnel O enters the fecal matter about ten inches, ‘‘ where-
upon, by operating the suction-pump, the receptacle or cask
becomes filled with the feces until it reaches the float-
valve 7, which presses against and closes the orifice of the
tube leading to the pump. The valved then falls and_ pre-
vents the escape of the contents of the cask. In the mean-
time the air that is pumped out of the receptacle B is forced
into a furnace located over the suction-pump, whereby the
odor arising therefrom is destroyed. When one receptacle is
thus filled the valve f is removed and the cap V screwed
thereon, whereupon the operation 7s repeated by the employ-
ment of another cask, until the vault is emptied of its
contents.”
By examining the model of the Bull Patent filed by the
Defendants in this cause, it will be found to be constructed
in cylindrical form, with the necks i and m, formed thereon
43
one at each end of the cask, and two caps of the series V,
one of which fits on the neck z, and the other on the neck m.
The screws are not on the necks but are described in the
specification by the language ‘“‘V represents one of a series
of caps which are screwed upon the neck or necks of the
casks.”’
It seems to us impossible that a careful reading of this
patent will not disclose that its leading features—those
features to which its whole success 1s due—are, its capacity
to be handled in or about any vault, to be brought directly
to the vault to be cleaned, to be lowered down, if the well
be too deep to be otherwise cleaned, to adapt itself to any
shape or form of privy or vault, and whilst operated
to be provided with automatic means of preventing the filth
from “extending beyond the cask JS,’ by the float-valve,
‘‘which presses against and closes the orifice of the tube lead-
ing to the pump,” to be able to securely close and seal it by
means of the caps and screw-necks, to remove disagreeable
odors from the cask whilst being filled, and when filled and
closed to handle it, “whereby the night soil therein con-
tained may be removed and utilized.”
It is equally clear that the specification was defective and
did not secure to the inventor the true gist of his invention
nor assert his rights therein. The Commissioner of Patents
has so decided, and with this presumption in favor of Com
plaints the expert for defence was never asked whether the
specification was or was not defective or insufficient.
The first question whether the specification contains any
other or different invention, has been determined by the
Commissioner of Patents and three judges of the United
States Circuit Court, was commented upon and testified to
by the witnesses and upon this point we ask to use as our
own argument Mr. Renwick’s clear and lucid testimony as
given on pp. 120 and 121, of the record:
“4th Inter. Look at Complainant’s Exhibit Bull Patent
and compare the same with Complainant's Exhibit Reissue,
and state whether you find in said Reissued Patent any
OL TE PLE RE ti
an Cha ee
44
matter or thing not shown or described in the original Bull
Patent ?
“Ans. I have compared them repeatedly, and do not find
any matter or thing in the rei
This text is long and has been trimmed here. Open the source document for the complete record.
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