these pavements, laid by both Perine and Molitor, are infringements upon the Schillinger patent.

There may be some advantage in the beveled joints claimed to be used by Molitor; but, if so, his pavement still embraces the Schillinger invention, if my view is correct, and he is, therefore, an infringer.

In the Molitor pavement, a portion of which was taken up and some of the blocks introduced as exhibits, the thickness of the upper course of fine material is not more than half an inch, and that contains substantially nearly all the strength of the block, for the lower course of material in these specimens is of such an inferior character that it can be crumbled to pieces by rubbing with the fingers. Yet even this is weakened by the cutting of the joints with a trowel, as before described. If, then, the lower course is of such a crumbling character, either on account of not containing a sufficient quantity of cement, or because of not being properly tamped, and there is no cutting of the joints in that upper course with the trowel, the mere marking of that top layer to the extent which the marker goes in would probably control the cracking. If the tongue of the marker will cut the upper layer to a depth of one-eighth or even one-sixteenth of an inch, then the entire thickness of that upper layer being but half an inch, it is probable that that incision would be sufficient to control the cracking of that upper layer; and, as that layer is the most substantial part of the block, that marking might, and probably would, be sufficient to control the cracking of the entire block.

In my view, therefore, the respondents in these two cases, Perine and Molitor, have both so constructed their pavements as to gain the advantages secured to the complainant by the Schillinger patent, and by substantially the same means; and they are, therefore, infringers of that patent.

In both these cases the preliminary injunctions heretofore issued will be continued in force, and a decree entered for complainant in accordance with the views expressed.

ROBINSON V. SUTTER.*

(Circuit Court, N. D. Illinois. 1881.)

1. PATENT No. 216,293—APPARATUS FOR RESWEATING TOBACCO-NOVELTY-VALIDITY-INFRINGEMENT.

Letters patent No. 216,293, granted June 10, 1879, to Abraham Robinson, for apparatus for resweating tobacco, held, not void for want of novelty by reason of letters patent No. 152,004, granted June 16, 1874, to Edmund J. Oppelt, for apparatus for coloring tobacco leaves, and letters patent No. 206,156, granted July 16, 1878, to Ernst Wenderoth, for process and apparatus for coloring tobacco leaves, held, also, to be valid, and infringed.

2. SAME-SAME-"TIGHT" CONSTRUED.

The term "tight," used in complainant's claim to qualify the construction of the inner chamber or tobacco holder, construed to mean sufficiently tight to subserve the purposes of the invention. Slight crevices or openings, arising from defective mechanical construction, if not large enough to admit steam in such quantity or volume as to wet the tobacco and defeat the operation of the apparatus, will not violate such rule of construction, nor relieve such apparatus from the charge of infringement.

8. SAME-SAME-OPPELT AND WENDEROTH DEVICES-NOVELTY-INFRINGEMENT. Complainant's invention, consisting of an apparatus for resweating tobacco by packing the leaves closely in a wooden box or tub, made substantially tight, except so far as the pores of the wood permit vapor or moisture to slowly percolate through the wood and diffuse itself with the mass of leaves, from a body of warm water and expanded steam contained in an outer tank or chamber surrounding such box, the heat being supplied by an external generator, held, not invalidated, for want of novelty, by the prior Oppelt and Wenderoth devices, consisting of metallic tanks and metallic tobacco holders within them, into which steam is directly admitted, by which the tobacco becomes wet, and, to a limited extent, cooked; and infringed by defendant's device, having a similar outer tank, supplied with water heated by a similar external generator, but no specific, permanent inner chamber or tobacco holder, sufficiently tight to exclude moisture except through its pores; but using instead thereof the original case in which the leaf tobacco comes packed.

Munday, Evarts & Adcock, for complainant.

Banning & Banning and Adolph Moses, for defendant.

BLODGETT, D. J. This is a suit for infringement of letters patent granted by the United States to complainant, Abraham Robinson, on the tenth of June, 1879, for an improved apparatus for resweating tobacco. The defence set up is-First, that defendant does not infringe complainant's patent; second, that complainant's patent is void for want of novelty. It seems from the proof that, in the manipulation of tobacco, it is deemed very desirable to obtain a dark uniform color in the leaf, especially of that to be used for cigar wrappers; that in the natural sweating which the leaf undergoes in the ordinary process of curing, it is left spotted, or some leaves will be

Reversed. See 7 Sup. Ct. Rep. 376.

darker than others, and the process of resweating is intended to bring the tobacco to a dark and uniform color.

Robinson claims to have discovered that tobacco can be successfully resweated by packing the leaves closely in a mass in a wooden box or tub made substantially tight, except so far as the pores of the wood will admit vapor or moisture to slowly percolate through the wood and diffuse itself with the mass of leaf, from a body of warm water and expanded steam contained in an outer tank or chamber surrounding the tobacco holder; the process to continue from three to eight days, according to the mass of tobacco to be operated upon. The apparatus which he devised for this purpose, and which is covered by his patent, consists

First, of a tank, or chamber, adapted to hold a body of water, and sufficiently tight to hold expanded steam, or steam generated or let into the chamber at a very low pressure.

The model presented here consists of a tank which is water-tight at the bottom, and substantially water or steam-tight above, with the tobacco holder let into it, and suspended by a rim upon the edge, the holder being made tight as described; but the patentee does not restrict himself to this precise form of construction.

Second. A tobacco holder in which the mass of leaf tobacco is placed, which tobacco holder is placed or suspended inside of the tank or chamber.

Third. A steam generator for producing steam, by which the water in the chamber is to be warmed, and steam generated, whereby a warm, humid atmosphere is kept constantly about the tobacco holder, and the warm moisture gradually diffused through the tobacco in the holder.

The size and capacity of the apparatus is wholly within the control of the operator. It is obvious that the water-tank or chamber must be, for practical purposes, large enough to contain the tobacco holder, and give a space underneath the holder for water, and a space above the water and around the holder for steam to diffuse itself, so as to wrap the tobacco holder in the wet steam or moisture; that is to say, the tank must be large enough to contain the tobacco holder, giving a water space underneath, and space about the tobacco holder around which steam can be circulated. The tobacco holder is made comparatively tight, so as to prevent the steam from coming in direct contact with the tobacco, but enough moisture is found to be admitted through the pores of the wood, in connection with the warmth, to secure the process of resweating. The heater or steam generator is placed outside the chamber, and its only function is to supply the

necessary heat, which may be done by passing steam into the water only, or steam may be let into the chamber above the water if desired.

The device used by defendant. operates upon precisely the same principle as that of complainant; that is, it has a tank or chamber within which the tobacco holder is placed. The bottom of the tank is supplied with water, which is heated by an outside steam generator or heater; and the only difference between the two devices of the complainant and defendant is that the defendant's tobacco holder is not made tight so as to exclude moisture, except through the pores of the wood, the defendant in practice using the ordinary tobacco cases, in which the leaf tobacco comes packed, to hold their tobacco during their process of resweating. In other words, the defendant opens the doors in his tank, and slides the ordinary tobacco case, full of tobacco, into this steam box, and allows it to remain there until the tobacco has become resweated, which is in no respect different from the process of Robinson, except as hereinafter noted. But it is claimed that this is a substantial difference, because it is insisted that complainant's claim requires his tobacco holder to be tight, while the defendant's tobacco holders are not tight.

I think, however, the word "tight," as used in his claim, is to be construed, in the light of his specifications, as meaning sufficiently tight to subserve the purposes to be accomplished. The term, as used here, must be held, I think, to mean comparatively or approximately tight; close enough to exclude an excess of steam or moisture, and open or porous enough to allow the warm moisture to sweat or percolate into the tobacco-holder, so as to warm and moisten its contents; and it would seem that slight crevices or openings arising from defective mechanical construction, if not large enough to admit steam in such quantity or volume as to wet the tobacco, would not violate this patentee's rule of construction.

The patentee, as I have already said, describes in his specifications the kind of tank he requires for his process. He says:

"It is usual to soften the leaves of tobacco, as is well known, in order to prepare them for being manufactured into cigars and other manufactured goods, and to bring out a good and nniform color. This has been done heretofore in various ways, and, among others, by dampening the leaves and exposing them to heat while in that condition. The object of this invention is to provide improved means of exposing the leaves to the action of steam for the purposes above set forth; and to that end my invention consists of a tobacco-holding vessel, made of wood, sufficiently porous to permit the steam

to percolate through it, in combination, substantially, as hereinafter described, with a steam-generating apparatus, and a steam-receiving chamber surrounding the vessel for containing the tobacco.

"I am aware that the general structural plan of the apparatus hereinafter described is old, and I do not, therefore, here intend to claim the same independently of a tobacco-receiving vessel made of wood sufficiently porous to permit the steam to percolate through it, as and for the purposes set forth, the said wooden vessel constituting, as I believe, an improvement upon the apparatus heretofore in use, for the reason that, in employing wood instead of metal in the construction of the said vessel, the tobacco is prevented from being tainted, and may be kept continually moist by the action of the steam, instead of being merely heated and sweated by it, or steamed only by the generation of steam in the same vessel containing the tobacco; it being obvious that, if the tobacco-receiving vessel he made of metal, as heretofore in devices of this class, the steam in the outer surrounding vessel would merely heat the tobacco, and sweat it, without imparting new moisture to it. Neither do I here intend to claim the process, as such, of steaming tobacco.

* * *

"C is a tight wooden vessel for receiving the tobacco to be treated. This vessel should be provided with a tight-fitting cover, a. I make the vessel, C, of wood, as an essential feature of my invention, in order that the steam may sweat or percolate through it from the tank, B, and so that the tobacco will not be tainted by contact with metal. The vessel, C, is enough smaller than the tank, B, to be suspended in the latter, and leave an annular space, b, between the two, as well as a space underneath the bottom of the vessel, C, as shown."

It is obvious that this inventor meant to have the tobacco holder, as he calls the box, C, sufficiently open, either through the pores of the wood, or interstices between the staves or boards, so that steam would slowly percolate through, and not that a strong jet of steam should pass through any one crevice or opening, so as to be condensed on the tobacco and wet it, but that it should slowly percolate through the pores of the wood, and maintain a steady, low degree of warmth inside the holder, and upon the leaves. This was the evident purpose of the inventor in the device which he has presented. It is true the inventor, in his claim, says:

"I claim-First, the apparatus substantially as described for treating tobacco, to-wit: the tight vessel or tank, B, the tight vessel, C, made of wood, and suspended in the tank, B, and a steam generator or heater, all combined and operated together, substantially as and for the purposes specified; second, the combination of the boiler, A, the tight tank, B, made of wood, the tight vessel, C, made of wood, and suspended in the tank, B, and the pipes, D and E, entering the tank, B, and the boiler, all arranged and operating substantially as and for the purposes specified."

The "tight vessel, C," as described and referred to in the claims, must mean the "tight vessel, C," described in the specifications, and