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tion of Baker's alleged contributory negligence in exceeding a proper speed limit, in saying in reference to him: “There is no evidence that he did not proceed carefully; but, at any rate, he proceeded.” Standing alone, this sentence might be open to such charge; but, when this statement is considered in the light of the whole charge, it did not have the effect complained of. The jury were instructed, if the signal gave Baker the right to go ahead, and assured him he had a clear track, still "he was required to use the ordinary and usual care, even under those circumstances." Attention was called to the fact that, while there was no evidence of Baker's negligence in running the train (by which we understand the court referred to his handling the
gine, keeping lookout, etc.), “there is evidence that he was going at the rate of 15 miles an hour." After reciting the conflicting testimony on that point, the court then left to the jury. what inference was to be drawn by the inquiry:
"Is there any evidence from which the inference could be drawn that Henry K. Baker was negligent in the way and at the speed he ran his train ?”
And following this the jury was told:
"If you find from the evidence he was not negligent, but that there was negligence on the part of either the man in the tower or the crew running the shifting engine, and if there was negligence of either or both together, then this company would be responsible for the death of Henry K. Baker under the law."
Under this charge we think the questions involved were fairly submitted, and the judgment should be affirmed.
AJAX METAL CO. V. BRADY BRASS CO.
(Circuit Court, D. New Jersey. July 31, 1907.) 1. PATENTS-INVENTION-SUBSTITUTION OF MATERIALS.
While the substitution of one material for another is not as a rule patentable, there are exceptions to such rule, and, under some circumstances, the adaptation of certain materials either singly or in combination to the production of certain desired results may amount to invention, even though it involves no more than the taking advantage of certain inherent qualities developed or discovered experimentally. This is par
ticularly the case with respect to composite mixtures or alloys of metals. 2. SAME-VALIDITY AND INFRINGEMENT-ALLOY FOR JOURNAL BEARINGS.
The Hendrickson and Clamer patent, No. 655,402, for an alloy for antifriction bearings, which consists of a copper tin-lead alloy, having "less than seven per cent. of tin and more than twenty per cent. of lead and the balance of copper," covers a superior alloy for journal bearings, having a higher percentage of lead, which is the lubricant, than it was previously thought possible to make successfully. It discloses invention, and is not void for anticipation nor lack of novelty, nor because of prior knowledge and use of the invention. Nor is it invalid for indefiniteness, in that it specifies only the maximum limit of tin and the minimum limit of lead in the alloy, it having been discovered by the patentees by experiment that within such limits, a critical relation exists between the metals, whereby, on being fused together, the copper-tin matrix, which holds the lead in suspension, solidifies quickly at a high temperature, and retains properly distributed through it, before it has time to run off or settle, a 1 Specially assigned.
greater quantity of the lead (which solidifies at a still lower temperature) than when other proportions are used, and the description, therefore, gives a practical working formula 'to those skilled in the art, and is as definite as it can be made and protect the invention. Neither is the advance made in the art one of degree merely; the alloy made within the proportional limits given being sharply and critically different from those not
so made. The patent also held infringed. 3. SAJE-NOVELTY-PRIOR USE.
In order that a single prior knowledge and use of an invention may be enough to negative novelty in a subsequent patent therefor, it must be something more than an accidental or casual use, and it must be shown that such use was so far appreciated at the time and adopted or followed as to create a well-understood, if not an established, practice capable at any time of being resorted to, and not something incidental and fugitive which is hunted up and brought forward simply to defeat the patent.
[Ed. Note. For cases in point, see Cent. Dig. vol. 38, Patents, $ 66.] 4. SAJE-PROOF TO ESTABLISII PRIOR USE.
The temptation in patent cases to resort to the defense of prior use to defeat the patent is always great, and parties are held in consequence to the most convincing and stringent proof, not only to the fact of such use, but to its character as well.
[Ed. Note.--For cases in point, see Cent. Dig. vol. 38, Patents, $ 78.] In Equity. Bill to restrain infringement of letters patent No. 655,402, issued to Joseph G. Hendrickson and Guilliam H. Clamer, for an alloy for anti-friction bearings. On final hearing.
Augustus B. Stoughton, for complainant.
ARCHBALD, District Judge. The mere substitution of one material for another is not, as a rule, patentable. Hotchkiss v. Greenwood, 11 How. 248, 13 L. Ed. 683. Brown v. District of Columbia, 130 U. S. 87, 9 Sup. Ct. 437, 32 L. Ed. 863. But to this there are exceptions. And, while it may not be possible to define just when it is so, it must be recognized that, under some circumstances, the adaptation of certain materials, singly or in combination, to the production of certain desired results, may amount to invention; and that too, even though it involves no more than the taking advantage of certain inherent qualities, developed or discovered experimentally. Smith v. Goodyear Dental Co., 93 U. S. 486, 23 L. Ed. 952; Goodyear Dental Vulcanite Co. v. Davis, 102 U. S. 222, 26 L. Ed. 149; Magowan v. New York Belting Co., 141 U. S. 332, 12 Sup. Ct. 71, 35 L. Ed. 781; Potts v. Creager, 155 U. S. 597, 15 Sup. Ct. 194, 39 L. Ed. 275. This is particularly the case with regard to composite mixtures or alloys of metals, such as is the character of the device in suit, the object of which, as declared by the inventors, was to provide an anti-friction alloy for journal bearings, which should hold up within itself more lead than was theretofore considered possible.
The value of alloys, composed of tin, lead, and copper, for the bearings of railroad cars and engines, had long been recognized, but up to 1892 there had been no attempt at any definite mixture; old brass and copper scrap and shells, of heterogeneous character, being somewhat indiscriminately made use of. About that time, however, as the outcome of an extended line of experiments, it was determined by Dr. C. B. Dudley, the eminent head of the chemical department of the Pennsylvania Railroad (whom it gives me pleasure to say I have known for nearly 40 years), that the best results were to be obtained from an alloy, consisting approximately of 8 per cent of tin, 15 per cent. of lead, and the rest of copper. The lead in such a mixture is the lubricant, the tin gives hardness, and the copper strength. Too much tin, however, increases the wear, producing a hard, cutting, action, besides adding to the expense, while with lead it is just the opposite, so that upon both grounds it is desirable, within certain limits, to keep down the tin and increase the lead as much as possible. But lead does not unite with the others chemically, and hence a certain amount of tin is necessary, the copper and tin forming a skeleton frame or matrix of a honeycomb structure, in which the lead is held mechanically, and the problem is to determine just the right proportions. The practical difficulty experienced with a copper-tin-lead mixture is that, in the process of melting, a so-called eutectic or readily fusing alloy between the copper and tin is formed, as a subsidiary compound, which solidifies at a comparatively low temperature, allowing the lead with a still lower melting point to segregate and fall to the bottom, when present in quantity, producing what is known as a “lead sweat. To obviate this, a high solidifying point for the mass is requisite, at which the copper-tin matrix shall set quickly and hold the lead properly distributed through it, before it has time to run off or settle; and with this secured an indefinite increase of lead is possible.
The received idea, however, at the date of the patent, as the result of the Dudley experiments, was that the limit in the diminution of tin and increase of lead had been reached in the relative amounts there determined; the proportion of tin so fixed being supposedly required to hold up the lead, and tin and lead having to be increased together beyond that. But it was discovered by the present inventors that this was not the case, and that, on the contrary, the subject was regulated by a critical relation between the metals involved, by which, with tin at less than 7 per cent. by weight, lead at more than 20 per cent. and the balance, or some 73 per cent., of copper, there was a quick solidification of the mass without the forming of any appreciable eutectic alloy, the large percentage of lead present being held and retained without difficulty, a small percentage of other metals, such as antimony, zinc, iron, etc., to be found in ordinary brass scrap as impurities, being also permitted. The proportions so given, it is to be observed, conform to a critical point in the constitution of coppertin alloys, on one side of which, according to the relative percentages employed, they solidify or set quickly at a high temperature; and, on the other, by reason of different percentages, they combine differently, forming among other subsidiary compounds certain eutectic mixtures, which remain liquid for a much longer period, cooling slowly. This critical point is a well demonstrated scientific fact, which is generally, if not universally, accepted; and is shown to exist close to where there are 9 parts of tin to 91 of copper, or relatively something over 9 per cent of the former. Having regard to this, and the consequences which flow from it when lead is additionally introduced, all tin-copper-lead alloys divide sharply into those which contain this relative proportion of tin and copper, which, by reason of their high melting point and the absence of eutectic alloys, permit of a large content of lead, and those which fall outside of these limits, where this is not possible. The adaptation of this principle in the production of anti-friction alloys for railroad bearings constitutes the merit of the present invention and the contribution made by it to the journal-bearing art. Its utility has been most signally recognized; the Pennsylvania Railroad having adopted and made large and increasing use of the alloy for a number of years, at first with the addition of a little nickel, which was supposed to produce a more homogeneous mixture, but latterly without it. And, upon certain bearings sent out from the Pittsburg shops for use on the lines west of there having been found to infringe, the company on notice desisted. It is also in use on the extensive system of the Norfolk & Western Railroad. And, upon being submitted to Mr. Robert J. Fisher, counsel for the Eastern Railway Association, the companies composing that association were advised to respect the patent, the practical significance of which will be appreciated. The proportions specified in the single claim of the patent are “less than 7 per cent. of tin, and more than 20 per cent. of lead, and the balance of copper.” But these amounts are to a certain extent suggestive only, and are not strictly adhered to in practice; the most satisfactory results for high grade bearings being secured with an alloy of 5 per cent of tin, 30 per cent. of lead, and 65 per cent. of copper, a variation which the patent permits and was intended to cover. This, with a small fraction of sulphur, which is of no materiality, is the combination made use of by the defendants, who thus admittedly infringe, if the patent is valid.
The validity of the patent, however, is contested upon several grounds. And the first criticism of it is its indefiniteness. The limitation of tin, as it is said, is given but one way, “less than 7 per cent.," and of lead, the other, “more than 20 per cent.”; the copper being dependent upon both and varying accordingly. There is nothing certain about this, as it is claimed, admitting of almost endless variety, as it does, and affording no real guide. But that it presents a practical working formula, according to the evidence, there can be no doubt. To one skilled in the art, as is there shown, it teaches that, with tin not exceeding the limit named, lead to the extent of 20 per cent. and upwards can be incorporated-a desirable feature if it could be accomplished as is well known—the proportion of copper being regulated to correspond. By observing these limits, the mixture is kept within the critical point necessary for the avoidance of eutectic alloys and the formation of a homogeneous mass, so that, practically as well as scientifically considered, the directions are sufficiently precise and instructive. Anything more so would admit of evasion and give away the invention, which consists not in the establishment of exact and rigid proportions, but in the discovery and disclosure of the critical relation between tin and copper, required to make possible a high percentage of lead, the terms of the patent being so framed as to appropriate and cover the whole field, copper-tin-lead alloys, as pointed out above, being divided into those where this is possible and those where it is not. Within
the limits so fixed, it is left to the particular person practicing the invention to determine the proportions which he deems best, the patent simply but explicitly instructing him to keep down his tin belowy per cent., whereby lead to exceed 20 per cent. may be successfully introduced. It is not to be assumed that, in doing so, ordinary skill and judgment will not be exercised, this being presupposed; or that the extreme and manifestly useless combinations, suggested in argument as possible, will be pursued.
It is said, however, that by the nickel patents to the same inventors, issued within three weeks after the application for the patent in suit and there referred to, they are on record as declaring that, not only was tin as low as 6 per cent. possible, but that, by the use of a small amount of nickel not exceeding 1 per cent., the tin could be reduced to three per cent. or even be entirely dispensed with, the lead at the same time being increased, as a desirable feature, as high as 22 per cent., thus in both respects realizing the terms of the patent. But that the desirability of a high per cent. of lead is so suggested is of no significance. This was well known, the difficulty being to accomplish it. Nor does the low per cent. of tin, which is shown in the same connection, bring the case within the patent; this being brought about by the use of the nickel, the declared purpose of the patent in suit being to produce the same result of high lead and low tin without that constituent, the inventors having apparently discovered the ability to do so, while the applications for the nickel patents were pending.
Much stress is laid, however, on the fact that Dr. Dudley, in his Franklin Institute address in 1892, not only disclosed the desirability of increasing the lead and decreasing the tin, but, as productive of the best results attained by his experiments, gave definite percentages, not far removed from those of the patent, namely, 8 per cent. of tin, 15 per cent. of lead, and 77 per cent of copper, at the same time suggesting that a further diminution of tin and increase of lead with still better results might be practicable. The advance made upon this, if any, by the present inventors, was thus, according to the argument, not only plainly marked out for them, but was at the best one of degree merely, which is not patentable, the alloy which they have devised having no different characteristics, physically or chemically, from that produced and described by Dr. Dudley. But, however close the proportions of the two may seem to be, those given by Dr. Dudley are in fact outside of the patent, and beyond the critical relation which is there disclosed and declared for. And while it is true that Dr. Dudley did suggest possibilities tending to a still further approach to it, intimating that the question had not perhaps been finally disposed of, his own experiments in that direction were not successful, leading him to the conclusion that the limit in all probability had been reached, and that, as one function of the tin was to hold up the lead, upon the lead being increased the tin had to be also, a mistake, shared by others, which impeded rather than promoted a discovery. Dr. Dudley also concedes that the successful production by these inventors of an alloy for railroad bearings, containing so little tin and so high lead, not theretofore deemed practicable, involved invention, although at an earlier stage, when less