JAMES ARKELL. APPEAL FROM EXAMINERS-IN-CHIEF. October 3, 1871. In the matter of the application of James Arkell for letters patent for alleged IMPROVEMENT IN BAGS. DUNCAN, Acting Commissioner: Applicant presents an alleged improvement in bags or sacks for holding flour or other material, and his specification contains the allegation that while in the manufacture of paper bags it has been customary to unite the edges of the material by gluing or pasting, yet "in the manufacture of all sorts of sacks of woven fabrics it has been customary to unite the material where folded over by, sewing or stitching." It is asserted that the stitching of the woven fabric materially weakens it, and applicant claims to be the first to make the discovery that by the use with cloth of a sufficiently-adhesive paste (no particular kind being specified) a stronger bag can be made than when the seams are sewed. The drawing represents what is commonly known as a "square-bottomed" bag. The claim is for "a sack or bag made of cloth folded and pasted substantially as described." The argument of the attorney construes this claim as being for a square-bottomed bag, made of cloth, and having its seams pasted instead of sewed; and while this interpretation of the claim is not quite in harmony with the broader declaration, above quoted, with which the specification opens, yet it seems to be an accurate statement of the ground upon which at last the applicant proposes to rest his case. He admits that the seams of square-bottomed paper bags are usually formed by pasting. The reference cited by the examiner, viz: the English patent of John Wright, No. 541, of 1853, shows that it is no new thing to form the seams of other kinds of cloth bags by pasting or gluing. The simple question, then, is, whether there is any invention in applying this old process of forming the seams of bags to the particular class named. The application cannot be viewed with favor. The objection to it is twofold: First, paper bags of the particular pattern named having previously been made by pasting the seams, applicant proposes simply a change of material, viz., a woven fabric in lieu of paper. But a mere change of material is not patentable. Hotchkiss vs. Greenwood, 11 How., 248. Again, whether we regard the alleged new application of the process of pasting-viz., to a square-bottomed cloth bag, that process having previously been applied to square-bottomed paper bags and to other patterns of cloth bags, or the alleged new use of woven fabrics—viz., in the manufacture of square-bottomed pasted bags, the same having before been used in other kinds of bags, both pasted and sewed-it must be regarded as a double use. The new occasion for the application of the pasting process and the new use made of the woven fabric are so closely analogous to the existing well-known uses and occasions as to deprive them of every element of patentable novelty. It was held in Losh vs. Hague, (1 Web., Patent Cases, 202,) that a wheel previously in use upon other vehicles would not be patentable when applied to railway carriages. In Howe vs. Abbott, (2 Story, 190,) Mr. Justice Story held that a patent for a process of preparing palm-leaf for mattresses, it appearing that hair had long been prepared by the same process for the same purpose, could not be maintained. The analogy of these and various other cases that are referred to in Curtis on Patents, sections 53 to 72, in the discussion on double use, is adverse to the grant of the patent now asked for, and must be deemed conclusive against it. The decision of the board of appeals is affirmed. LAURISTON TOWNE. Extension. October 9, 1871. In the matter of the application of Lauriston Towne for the extension of letters patent for a CHAIN-MACHINE, granted October 20, 1857, and reissued March 13, 1860. DUNCAN, Acting Commissioner: Previous to this invention, according to the testimony, the chain known among jewelers as the "Adelaide chain" was manufactured exclusively by hand, and at a cost on an average, exclusive of the cost of the materials, of not less than fifty cents per foot. By applicant's machine it can be made at three cents per foot. It is estimated that more than three million feet of chain have been manufactured by this and by infringing machines during the last fourteen years-at least eighteen hundred thousand feet by this machine alone, as operated by the firm of which applicant is a member. This large product has been put upon the market at a price which has given the manufacturers a profit of only about one cent and a half per foot. The public have had the benefit of the large difference between the profit actually charged and the entire saving effected by the substitution of machine-made work for that produced by hand. The public have been benefited also in obtaining a superior article, both as regards strength, durability, evenness of structure, and beauty of finish. From these facts it becomes apparent at a glance that the invention is one of great merit in the art to which it relates, and, so far as that art is concerned, one of marked importance to the public. From the examiner's report, it appears that the invention was new in all its features at the time when the original patent was granted. The compensation received by the inventor, as given in his sworn statement, amounts to $9,843 54, more than one-half of which has accrued from licenses upon machines which have been worked in Germany. Is this amount to be regarded as a reasonable remuneration for the time, ingenuity, and expense which he has bestowed upon the invention, and has the failure to receive a larger reward occurred without fault or neglect on his part? In reply, it is to be remarked, in the first place, that the machine itself, beyond question, is the embodiment of great mechanical ingenuity. It is a complicated piece of mechanism, and yet its various parts co-operate with almost marvelous harmony. It is a pioneer, too, in this branch of manufacture, and, from the interesting story told us by the inventor, cost him not less than twelve months of study and experiment, his entire time and energy during this period being devoted to its development. The result is a triumph of skill which commands unfeigned admiration from all beholders. I have no hesitation in saying that, for the ingenuity alone displayed in inventing a machine of such capabilities, and in its very nature adapted to exercise so important an influence upon the art to which it relates, the amount above stated would be an inadequate compensation, even if the inventor were not entitled to any credit by reason of time devoted to it, and for expenses incurred in making and introducing it. It only remains, therefore, to determine whether it has been through his own neglect or fault that Towne has failed to receive a larger remuneration. The amount which he gives as his income from the invention has been received by him in the form of dividends from the firm of Sackett, Davis & Co., manufacturers of jewelry, at Providence, Rhode Island, in the business of which firm he has a one-fifth interest. His relations to this firm are best given in his own language: Before 1857 my interests in the firm of Sackett, Davis & Potter, as the firm was then styled, was one-tenth of the profits. The department which was under my charge was that of general machinist and tool-maker. New improvements and alterations in machinery are in every large jewelry establishment constantly required, and it was the case in this firm. After the invention of my machine for making chain, my interest was increased to one-fifth, and, in addition to my general duties as general machinist and tool-maker, I was to have, and always have had, the special superintendence and care of the chainmaking machines and of the chain-making business, which, since the invention, has been a very important item in the business of the firm. The increase in my interest in the firm was undoubtedly induced by the appreciation which the firm felt and expressed for my merit as an inventor; for, in addition to my machine for making chain, I was constantly engaged in making improvements upon the general tools and machines used by the company, and in simplifying and economizing their processes of manufacture. Such has been my department since that time. I have taken out four other letters patent for important improvements, and my labor and responsibility since 1857 have been largely increased in consequence of the important addition to their business of the chain manufacture. The increase, therefore, in my interest in the firm was not by way of compensation to me for any right or interest in my patent for a chain-machine, with the exception of the grant for six years referred to in my account filed, but was on account of the increase of duties and services which I was to perform. From this statement, which, so far as it concerns the assignment, is corroborated by an examination of the record of assignments in the Patent Office, it appears that Towne might at any time after the year 1863 have resumed entire control of his patent, in which event he would have received the entire profits from such number of machines as he might have chosen to operate, instead of contenting himself with a fifth only. In point of fact, he has chosen to continue up to the present time the same arrangement that existed between himself and his partners during the term of the assignment. Various considerations may have determined him in this course. The leading one, doubtless, was that he relied upon the capital and business energy and experience of the associated partners to work his invention. This was rendered all the more necessary by the extensive infringements which opposed the invention, and which constantly kept the price of the manufactured article so low in the market as to make its legitimate production possible only by men possessed of the requisite means to wage a vigorous war upon the pirates. Again, while Towne's increased interest in the business of the firm was due only in part to this invention, he may very naturally have felt that he would have imperiled his harmonious relations with his partners by a resort to his legal right to recall his monopoly in the patent. I see no reason to question his business sagacity in permitting the firm to retain control of the invention during the entire period of the patent upon the same terms as were originally agreed upon. In reply to the possible suggestion that, in view of the large saving effected by the machine in the prime cost of the manufactured article, the firm, had they so chosen, might have made far larger profits, the explanation is offered that the invention was of such a nature as to afford special inducements and special facilities for infringments; and that, in fact, infringements were carried on so covertly and so extensively as to force the lawful manufacturers to content themselves with the small profits actually realized. The pursuit of infringers has been industriously carried on, and the statement of account shows that not less than $8,000 have been expended for this purpose; but if it could be made to appear that the low prices adopted for their goods by manufacturers under the patent were fixed upon of their own free choice and not forced upon them by an illicit and almost ruinous competition, even this would afford no good reason which the public could urge against the extension, unless it could first be shown that the continuance of the patent privilege would materially hinder the development of the art. No such result is to be apprehended in the present case, and the patent will be extended. G. W. HILDRETH. Extension. October 13, 1871. In the matter of the application of G. W. Hildreth for the extension of letters patent for IMPROVEMENTS IN GANG-PLOWS, granted October 13, 1857, and reissued December 27, 1870. DUNCAN, Acting Commissioner: So far as concerns the early history of this invention, no charge of lack of diligence in efforts for its introduction can be brought against the patentee. In the years immediately preceding and following the grant of his patent he manufactured and sold from three to four hundred of the plows, and he gives it as his belief that there have been in all from four hundred and fifty to five hundred plows manufactured embodying the invention. In the winter of 1859-60 he was overtaken by financial embarrassment, from which he gained relief only by passing through insolvency in the year 1863. In 1864 he formed a partnership upon a small capital with Clark and McKim, with whom he is still assoiated; but this firm has devoted its attention mainly to the manufacture of school furniture, selling only such plows as were called for—on an average about ten a year-since the formation of the firm, but not using special efforts to advertise them. In this, again, there is no reasonable ground for the charge of lack of diligence; for, in the first place, Hildreth, as a member of the firm, would not have been free to devote himself more fully to the manufacture or sale of the plow, even had he so desired; and, secondly, a patentee is under no necessity, in order to free himself from any imputation of fault or neglect, to devote all his energies and capital to the particular industry to which his patented invention relates. It is but fair to assume that, as a member of the firm, Hildreth did all with his plow that a reasonable business prudence could under the circumstances have dictated. The evidence, also, is sufficiently explicit that the plows made by Hildreth are really valuable implements; though it is by no means certain that the large measure of value claimed for them is attributable to the difference existing between them and previously existing gangplows and cultivators, some of which possessed the same function of adjustability of the supporting-wheels. It is doubtful whether the special means employed by Hildreth for effecting this adjustment, though certainly useful, are superior to other modes shown in the various references cited by the remonstrants against the extension prayed for. Applicant's net losses by reason of the invention exceed $400. If there were no other matters than the above to be considered, the extension would be granted. Put it appears that within a recent period applicant sold the unexpired portion of the original term of his patent |