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cesses at their inner ends and made adjustable in the upright bearing-bars, b2, b3, of the brace, B, the said brace being as usual, with the exception of the addition of the said bearing-bars. The driving-wheel, m, is fixed to the crank-shaft, G. The head of the bearing-screw, i, is exposed through a hole left for that purpose in the side piece, so that the said screw may be readily adjusted by means of a set-screw. Outward bending of the bar, b3, is obviated by the side frame against which it rests. The link, f, passes back of the curved part, b4, of the frame, and acts to prevent the dress of the operator coming against the link and wheel, m. The addition to the usual brace, G, of the two bearing-bars enables me in a very cheap and simple manner to support the driving-wheel at both ends of its crank-shaft and in adjustable bearings, which enables the crank-shaft to be held steadily and to be run with the minimum of friction, and enables wear in the bearings to be compensated for.
"The side pieces, A, the brace, B, provided with the bearing-bars and the adjustable bearing-screws, combined with the crank-shaft supported at each end in the said bearing-screws, and the balance-wheel thereon, as shown and described."
John Dane, Jr., for complainant.
COXE, District Judge. It is not pretended that the inven tion is a broad one. It relates only to a minor improvement in an over crowded art. The claim is clear and explicit. There is no room for mistake; a tyro in mechanics can understand its v.68F.no.1-15
provisions. It contains the following elements: First. The two side pieces, A. These are the ordinary legs which support the table of a sewing machine. Second. The brace, B. This brace is of the well known saw-buck pattern. Third. The upright bearing-bars, b2, b3, being integral, but additional, parts of the brace. Fourth. The adjustable bearing-screws, h, i, located in the bearing-bars. Fifth. The crank-shaft, supported at each end in the bearing-screws. Sixth. The balance wheel on the crank-shaft. It is admitted that the defendant's machine omits the upright bearing-bar, b2, and the adjustable bearing-screw, h; both of which are particularly pointed out and distinctly claimed in the patent. It is possible that the frame of the brace which is made to serve as the inside bearing-bar in the defendant's machine might be construed as a substitute for the bar, b2, but there is no way in which the complainant can avoid the effect of the omission of the bearing-screw, h. The claim covers both screws. Not only does the patentee claim both screws, but that he did so deliberately is placed beyond doubt not only by a reference to the plain language of the description, but also by the further claim of the "crank-shaft supported at each end in the said bearing-screws." Even if the patentee were entitled to a wide range of equivalents it is doubtful if he could hold the defendant's machine, for the reason that one element of the claim is omitted entirely and nothing is put in its place. But the patentee is not entitled to the liberal treatment accorded to a pioneer. He has made a small advance in the art and has informed the public of the precise nature of his improvement. He must abide by the language of the claim as he has chosen to write it. If there were an opportunity for interpretation the court would undoubtedly adopt the broadest construction compatible with the proofs; but the claim needs no interpretation; its meaning is perfectly clear. When the patentee says "bearing-screws" he does not mean "one bearing-screw." When he speaks of "the crank-shaft supported at each end in the said bearing-screws" he does not mean "the crank-shaft supported at one end in a bearingscrew." It is no answer to say that the patentee has placed an unnecessary limitation upon his claim. It is plain that the patentee regarded the two bars and the two screws as important elements of his invention and intended thus to cover features not found in the antecedent art. The specification is consistent with this view and inconsistent with any other view. But the patentee's intentions are immaterial in a case where there is absolutely no doubt as to what he actually did. The question is not what might have been claimed, but what is claimed. The courts cannot undertake to construct new claims for inventors. If they have made their claims too narrow it is their misfortune-beyond the power of the court to remedy. Keystone Bridge Co. v. Phoenix Iron Co., 95 U. S. 274; McClain v. Ortmayer, 141 U. S. 419, 12 Sup. Ct. 76; Baumer v. Will, 53 Fed. 373.
For the reason, then, that the defendant's machine omits two elements of the combination of the claim it must be held that it does not infringe. The bill is dismissed.
AMERICAN CABLE RY. CO. v. MAYOR, ETC., OF CITY OF NEW YORK
(Circuit Court, S. D. New York. May 21, 1895.)
1. PLEADINGS AND PROOF-DEPARTURE-ASSIGNMENT OF PATENT.
Proof of a direct assignment of a patent from the patentee to complainant does not constitute a departure, although the bill alleges an assignment from the patentee through two intermediate parties to the complainant.
2. PATENTS-CABLE RAILWAY.
The Miller patent, No. 271,727, for an improvement in cable railways, for raising the cable to the grip, held not anticipated.
8. CORPORATIONS-CORPORATE EXISTENCE-SUIT FOR INFRINGEMENT OF PATENT. Where a corporation has been organized, and has taken title to a patent (which action is apparently within the scope of its powers), and no proceedings have been taken to terminate its existence, it may maintain a suit for infringement of the patent notwithstanding that defendant questions its corporate existence on the ground of failure to seasonably commence the corporate business.
This was a suit by the American Cable Railway Company against the mayor, aldermen, and commonalty of the city of New York and the city of Brooklyn for alleged infringement of a patent relating to an improvement in cable railways.
Chas. Howard Williams and Daniel H. Driscoll, for plaintiff.
WHEELER, District Judge. This suit was brought for infringement on the New York and Brooklyn bridge of patent No. 271,727, dated February 6, 1883, and granted to Daniel J. Miller for an improvement in cable railways for raising the cable to the grip, alleged to have been assigned May 14, 1883, by Miller to Otis S. Horton; by him, July 10, 1883, to the Cable Construction Company; and by that company, February 25, 1888, to the orator,-by instruments in writing recorded in the patent office. Certified copies from the patent office were put in evidence for proof of the assignments. On hearing before Judge Coxe, this proof of title was held to be sufficient, the patent was sustained, infringement was found, and a decree was: entered for the plaintiff. 56 Fed. 149. On appeal, the circuit court: of appeals held the proof of title to have been insufficient, and the decree was reversed, without prejudice to reopening the proofs. 9 C. C. A. 336, 60 Fed. 1016. The proofs have been reopened, and testimony introduced by the plaintiff tending to prove the absence beyond knowledge of the subscribing witnesses, and by the plaintiff to prove and by the defendants to disprove the signature of Miller to the assignments; and the plaintiff has proved, beyond question made, the execution of an instrument in writing between Miller and the plaintiff dated February 23, 1888, which recites the ownership of many patents by Miller, naming them by number and date, and that the plaintiff "is the holder and owner of certain letters patent of the United States, numbered, entitled, and dated as follows: No. 271,727. The Construction of Railways. February 6, 1883,"—and, after further recitals, provides in consideration of the premises.
that "the said Miller hereby sells, assigns, and conveys to the said American Cable Railway Company, its successors and assigns, each and all of said letters patent," etc. The defendant still insists, not only that the signatures to the assignments from Miller to Horton and from Horton to the Cable Construction Company are still insufficiently proved, but that the signature to that from Miller to Horton is a forgery. In view of all the circumstances, and especially of the recital in this later instrument of the ownership by the plaintiff of this patent, which would come by way of these assignments, their execution and the genuineness of this signature of Miller seem to be well enough proved. But, if the position of the defendants should be sustained and those assignments fail, the title would then be left remaining in Miller, and be conveyed by this latter instrument to the plaintiff. Objection is made that proof of an assignment from Miller directly to the plaintiff would be a departure from the bill, but the substance of the allegation of assignment from Miller by way of Horton and the Cable Construction Company to the plaintiff is proved by showing an assignment from Miller to the plaintiff, without following all the intermediate steps.
The defendants have also by leave introduced an Italian patent, dated December 31, 1868, and granted to Edmund Barnes, for lowering out of the way at grade crossings the high central rail of railways having such a rail to engage horizontal driving wheels on steep places, according to the English patent No. 277, dated January 26, 1863, and granted John Barraclough Fell. That is a different thing, however, from raising a limber cable on pulleys to bring it within reach of the grip, and it appears to have been contrived to be done in a different way. These patents do not affect the case, as now understood, sufficiently to vary the result.
The defendants now make question about the corporate existence of the plaintiff, principally with reference to the seasonable commencement of corporate business. The corporation was organized, and took the title to this patent, which seems to be within the scope of its corporate powers. No proceedings have been taken to terminate it. Under these circumstances, it seems to exist, so far at least as to be able to maintain this suit against wrongdoers for trespassing upon this corporate property. Decree for plaintiff as before.
MARSHALL V. THE EARNWELL.
(District Court, E. D. Pennsylvania. May 28, 1895.)
1 ADMIRALTY-PLEADINGS AND PROOF.
Where, in defense to a libel by a pilot to recover fees from a vessel which had rejected his services, it was pleaded that libelant, after signaling an offer of services, hauled down the signal, and sailed away, thus preventing the ship from taking him, held, that on failure of the evidence to sustain this claim, respondent was not entitled to prove that other pilots also offered their services at the same time, and that the vessel would have been subjected to serious inconvenience in order to take libelant.
2. PILOTS-OFFER OF SERVICES-OBLIGATION TO ACCEPT.
A vessel bound up the Delaware river to Philadelphia is obliged to accept the first available pilot who offers his services, and if she refuses him, and takes one who at the time was further away, she is nevertheless liable to the former for his fees. The Clymene, 9 Fed. 164, and The Alzena, 14 Fed. 174, followed.
This was a libel by William F. Marshall, a pilot, against the steamship Earnwell, for refusal to accept his services when offered. Edward F. Pugh and Henry Flanders, for libelant. Henry R. Edmunds, for respondent.
BUTLER, District Judge. No question of law is involved. The respondent was bound to accept the first available pilot who offered his services. The Clymene, 9 Fed. 164; The Alzena, 14 Fed. 174. She was not required however to go materially out of her way to meet him or stop and wait, if others were more convenient, because he first signaled, but simply to accept the services of the pilot first offering where she could do so without disadvantage. If several offered simultaneously she could accept the services of either.
The questions raised by the pleadings are first: Is the libelant a pilot? Second. Was the respondent required to take a pilot? Third. Was she excusable in refusing the libelant's services? That the libelant is a pilot, and that the respondent was required to take one is now conceded. The only question therefore is, was she excusable in refusing to take the libelant? The single excuse set out in the answer is, that he withdrew the offer of his services after having made it, and "thus prevented the respondent taking him.” The answer says:
"At about 5:45 o'clock a. m. of the 3d day of February, A. D. 1894, the steamship Earnwell passed Fenwick's Island light, bound in, and her course was set for Cape Henlopen. At daybreak there were three pilot boats in sight: one about six miles to the eastward, another about four miles northeastwardly, and the third about north, distant about four miles. The latter standing directly across the track of the steamer. The libelant was on the boat, named above, as being northeastwardly, and was out of the track of the steamer. That shortly after sighting the said boats, libelant's boat signaled by hoisting her flag and continued coming towards the steamer, but when within about one and a half miles from the steamer, for some cause unknown to deponent, she hauled down her signal and sailed away, thus preventing the Earnwell from accepting the service. The steamer continued on her course until she intercepted the boat, whose course was above given as north, from which a duly-licensed pilot was taken."
Thus it is seen that the only issue presented by the pleadings is, did the libelant withdraw his tender of services, and thus "prevent the respondent accepting them?" The evidence shows that he did not; and the defense is now shifted to other grounds. It is asserted that two other pilots also offered their services at the same time, and that the respondent would have been subjected to serious inconvenience in taking the libelant. If this is true it should have been averred in the answer, and the defense put upon it. It is as important that the pleadings in the admiralty shall show the issue to be tried, as it is in other courts.