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Vol. II.)

[No. 3.

Gill v. WELLS.

error to revise the rulings and instructions of the circuit judge ; but it will be necessary to refer somewhat fully to the specification of the original patent, and to compare the same with the specification of the reissued patent, which is the patent in suit, in order to understand the exact nature and scope of the controlling questions presented for decision.

Separate examination of the numerous questions involved in the bill of exceptions will not be attempted, as it would extend the opinion to an unreasonable length, nor will it be attempted to pass in review more than two or three matters assigned for error in this court, as it is scarcely probable that many of them will be of much importance if the parties elect to go to a new trial.

Exact description of the invention was given in the specification of the original patent, which affords the most ample means to define the nature and scope of the improvement actually made by the patentee as secured by that patent.

My improvements, he says, consist in feeding the fur, after it has been picked, to a rotating brush, between two endless belts of cloth, one above the other, the lower one horizontal, and the upper one inclined to gradually compress the fur and gripe it more effectually where it is presented to the rotating brush, which moves at great velocity, and throws it into a chamber or tunnel, which is gradually changed in form toward the outlet, where it assumes a shape nearly corresponding to a vertical section, passing through the axis of the cone, but growing narrower, for the purpose of concentrating and directing the fur thrown by the brush to the cone.

Currents of air enter at the same time through an aperture immediately under the brush, in consequence of the rotation of the brush and the exhaustion of the cone, for the purpose of more effectually directing the fibres toward the cone, which is placed just in front of the delivery aperture of the chamber or tunnel, which aperture is provided at the top with a bonnet or hood, hinged thereto, and at the bottom with the hinged flap, to regulate the deposit of the fibres on the cone or other former, with the view to distribute the thickness of the bat wherever more is required to give additional strength to the manufacture.

Means are also described for holding the fibres composing the bat onto the cone, so that the bat may be removed from the cone or former before the hardening process is applied ; and for that purpose the representation is that the patentee first covers it with felted or fulled cloth, and then he employs one or two metallic cones: one to put over the bat after it has been surrounded with the moist cloth, for the purpose of making pressure on the fibres and to allow hot water to circulate when the whole is immersed therein to harden the bat preparatory to felting; and the other metallic cone is to be placed within the perforated one on which the bat has been formed, and which is necessarily thin and weak, for the purpose of resisting the pressure of the surrounding water, consequent upon a partial vacuum produced within, when the whole is withdrawn from the water.

Special reference is then made to the drawings, and a detailed description is given of every device included in the apparatus and of the functions which the respective devices of the apparatus perform. Superadded to those details is a general description of the mode in which the described

Vol. II.)

Gill v. WELLS.

(No. 3.

apparatus operates, and of the result which it accomplishes, in substance as follows: As the fibres are first presented they are acted upon by the brush, which moves with great velocity, and they are properly laid by its downward action, but when liberated they are carried down the curved surface of the chamber or tunnel, and at the lower edge of that device they meet a current of air that enters a narrow aperture near the bottom of the chamber or tunnel, which extends the whole length of the brush, and prevents the fibres from falling and resting on the bottom of the chamber or tunnel, and carries them onto the perforated cone.

Minute description is also given of the chamber or tunnel, and of its appendages, and of the functions which it performs, as follows: That it extends over and under the brush, and is so arranged as to have a slight motion, the axis of which is the same as that of the brush, and that its bottom rests on set-screws to regulate the delivery end of the same relatively to the cone; that its forward end is provided with a hinged flap regulated by a cam-lever as the means of regulating the delivery of the fibres; that its top is gradually elevated and that the sides are contracted to make the delivery aperture nearly of the form of the cone, but narrower and higher; that its upper part is provided with a hood so curved as to correspond generally with the curve of the top of the cone.

Particular description is also given of the mode in which the hood is arranged, and of the functions which it performs, as follows: That it is hinged to the upper part of the delivery aperture of the chamber, and that it is connected with an eccentric by means of a cord and bell-crank passing over a pulley, so that each revolution of the eccentric carries the hood up and down to direct the discharge of the fibres and to distribute the same onto the cone, giving a greater thickness in the parts of the hat which form the brim and edge than on the top and crown, and he suggests the means to be employed by the manufacturer when it is desired still further to diversify the distribution of the fibres.

Intelligent description is also given of the cone and of the functions which it performs, and of the whole mode of operation from the time the fibres are placed upon the feed-apron until the hat is formed; but there is no trace of any suggestion or intimation that the operation can be performed or the patented result be produced without the chamber or tunnel. Instead of that, it is unquestionably true that the chamber or tunnel is a material ingredient of the combination and an essential feature of the described invention. Unmistakable support to that view, if any be needed beyond what is disclosed in the description given of the same, is also derived from the claims of the patent, three of which in express terms describe the invention as a combination and include the chamber or tunnel as one of the ingredients of the combination. Besides the evidence in that direction, derived from the first three claims, the fourth claim is for the employment of the hinged hood to regulate the proper distribution of the fibres, which device is obviously but a mere appendage of the chamber or tunnel, in terms included in the described combination.

Such a combination, if new and useful, and if it produces a new and useful result, is the proder subject of a patent to secure to the owner or proprietor the exclusive right to make, use, and vend the thing patented

Vol. II.)


[No. 3.

nded afford theres, to ena the

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for the period allowed by the patent act. Beyond doubt such a patent is valid and operative, but the rights of the patentee under it differ in one respect from those of a patentee for an invention which consists of an entire machine, or of a new and useful device, as the rights of a patentee for a mere combination of old ingredients are not infringed unless it ap- · pears that the alleged infringer made or used the entire patented combination. Gould v. Rees, 15 Wall. 194.

Invalid and inoperative patents may be surrendered and reissued for the same invention, but Congress never intended that a patent which was valid and operative should be reissued merely to afford the patentee an opportunity to expand the exclusive privileges which it secures, to enable him to suppress subsequent improvements which do not conflict with the invention described in the surrendered patent. Evidence of a decisive character to negative the theory that such a practice finds any support in the act of Congress, besides what existed before, is found in the new patent act, which expressly provides that no new matter shall be introduced into the specification; and in case of a machine patent, that neither the model nor the drawings shall be amended, except each by the other.

Two or three only of the errors assigned will be much considered. They are in substance and effect as follows: First, that the court erred in refusing to instruct the jury that the reissued patent is invalid because it is not for the same invention as the original. Second, that the court erred in refusing to instruct the jury that the defendant's machine did not infringe the fourth claim of the plaintiff's patent unless it had the feeding device of the original patent in combination with the rotating brush or picker, and the pervious cone and the chamber or tunnel described in the original specification. Third, that the court erred in instructing the jury that the reissued patent is valid as respects the fourth claim, if the combination of the three ingredients therein mentioned was new and could be usefully employed for the purpose of facilitating the making of hat bodies, supplemented by any known means of guiding the fur in such a way as to bring, by the operation of these three devices, the fur to the cone so as to make a hat body, or if those three devices would make a hat body without the aid of other means of protecting the fur against escape that would be serviceable for any purpose, then it was patentable, even without the trunk, which is also called the chamber or tunnel..

Three or more important propositions of patent law are involved in the exceptions covered by the assignment of errors, which it becomes important to restate with some care, because neither the prayers for instructions, nor the rulings of the court in refusing the same, nor the instructions given, nor the assignment of errors, are in every respect free from ambiguity.

Perhaps no one of the prayers for instruction corresponds in precise terms with either of the first two propositions, but it is nevertheless true that many of them, as applied to the separate claims of the patent, did raise the questions involved in those propositions, and it is equally certain that the court in several instances ruled to the effect that the reissued patent was not invalid for the reason assigned, and that the machine of the defendant did infringe that of the plaintiff, even though it did not con

h claim the jury thaoriginal. patent is incourt erred. They

Vol. II.)


[No. 3.

tain the chamber or tunnel described in the plaintiff's original specification.

Filled as the record is with proofs to establish the truth of the preceding statements, further argument upon the subject is unnecessary. Throughout the trial it was the constant aim of the defendant to defeat the plaintiff's action upon the three grounds mentioned : First, that the reissued patent was invalid, because it was not for the same invention as the original. Second, that the defendant did not infringe the plaintiff's invention, because his machine did not contain the chamber or tunnel of the plaintiff's invention, nor its appendages. Third, that the reissued patent was invalid as it respects the fourth claim of the same, because the combination contains only three of the four ingredients described in the original specification, and does not include either the chamber or tunnel or its appendages.

Unquestionably these several defences were pressed in many forms, and all must agree that the court refused to sustain any one or all of them as often as they were presented by the defendant.

Attention will next be called to the specification of the reissued patent as the best means by which to determine whether the invention secured by it is or is not the same as that of the original. Wide differences between the two specifications are manifest in two important particulars :

1. That the whole description of the chamber or tunnel and its appendages is left out of the specification of the reissued patent, and that it contains a full description of other devices different from the chamber, in form at least, to perform the functions of the chamber and its appendages as described in the original specification. • Material matters are left out of the specification when compared with the original, and it is beyond dispute that new features are introduced in the description of the devices to be employed in guiding the fibres of the fur when taken from the feeding mechanism by the rotating brush or picker. They are picked and thrown toward the cone as in the other specification, in which it has already appeared that the representation is that they are guided and directed in the manner and for the purpose specified by the chamber and its appendages. Instead of that, the description in the reissued specification is that the function of guiding and directing the fur is effected by the following means. Nothing is said about the chamber, but the description is, that a plate is provided and placed under the brush, and that it extends toward the pervious cone, an open space being left between that end of the plate which is nearest the picker and the concave part below the feeding mechanism, that a current of air may enter freely to assist in carrying the fibres toward the cone as they are thrown by the brush or picker; and the further representation is that the plate guides the fibres as they are travelling and prevents too great an accumulation of them immediately around the lower edge of the cone, the greatest thickness of the bat being required to be deposited some distance above, that the hat, when made, may be thickest at and about the junction of the rim and crown, technically termed the band, and that it also prevents waste, as otherwise many of the fibres would be carried by the force of gravity below the influence of the currents travelling toward the cone, particularly toward the close of the operaVol. II.)

GILL 0. Wells.

(No. 3.

tion, when the currents induced by the exhausting fan become very faint.

Description is then given of the mode in which the plate is adjusted, and of the functions which it performs, as follows: That it rests on an adjusting screw, so that that end of it which is nearest the cone can be readily elevated or depressed relatively to the base of the cone, as it may ·be desired to vary the distribution of the fibres with a view to make hats with a broad or narrow rim, and with the rim thicker or thinner relatively to the other parts, the plate being made in two parts with a view to facilitate the distribution, the part beyond the supporting screw and nearest the cone being hinged to the other part and being provided with a cam or lever or other equivalent device.

Provision is also made for a device called an upper guide or deflector, which, as the representation is, extends from the feeding mechanism over the rotating brush or picker, and forward of it toward the cone, to direct the fibres and effect a proper distribution of them on the top of the cono and down the sides thereof toward the base; and the further representation is that the under surface of that guide or deflector nearest the picker brush is flat, or parallel with the axis of the picker brush, and thence, toward the other end, concave and of a gradually increasing concavity toward the cone, and that the apparatus may be supplied with an additional deflector further to diversify the distribution of the fibres, somewhat in the form of a hood, which is hinged to the end of the deflector nearest the cone, so that it can be moved by a cord passing over a pulley or a lever actuated by an eccentric or a cam on a shaft. Guides are also provided on each side of the deflector, extending from the picker brush toward the cone, to prevent the fur fibres from escaping laterally out of the proper influence of the currents which are travelling toward the cone, and which otherwise would go to waste, and also to prevent the fibres which are travelling toward the cone from being disturbed by lateral or foreign currents, not induced by the rotating brush or picker or by the exhausting of the cone. • No allusion even is made to the chamber or tunnel in describing the apparatus for guiding and directing the fibres thrown by the rotating brush or picker, except at the conclusion of the description, where the patentee states that, in the machine illustrated by the accompanying drawings, the bottom plate, top guides or deflector, and side guides are all united along their edges, which is an express admission that it is the chamber or tunnel and its appendages in the original specification that performs all these functions, and that the description given in the reissued patent is a new feature, describing devices different in form and with different names from the description given of the means to accomplish the same end in the original patent.

Differences so wide between an original and a reissued patent show that it was a bold measure to grant, as well as to ask for, such a reissue. Examples of the kind, if any, it is believed, are very few in which such a reissued patent has been granted where there is not a word in the original specification to support the theory that the patentee ever invented anything except his described combination, which, it is admitted, consisted of four ingredients, all of which were old. Complete description is given in

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