MARCH 28,
Scientific American
1903.
� LegalHotes. �
SUW:V1'lTUTlON
MATEHlALK-A SUlt
m'
in equity was
Claim
of
4,
The defendant set up prior letters pat­
an
court
held
that the Putnams had
works and to
unbound
leaves
of
a perfect right to
Kipling's
resell them in
copyrighted
bindings of
their own.
adapted to circulate through the spaces and about the
Judge Lacombe in the following terms fiouted Kipling's
converter
contention
The
for
the
defendant
induction-coil,
tooth-crowns.
covers
inclosing case containing oil or paraffin,
antiCipated
mold for shaping metallic
patent,
core and an
Macdonald
of the White patent for a
Westinghouse
purchase
brought by the National Tooth Crown Company against
(170 Fed. Rep., 617), for an infringement
the
electric converter constructed with open spaces in its
spaces on
purpose
tried
by
to
the
of
Stanley
which
cooling
show
patent
the
that this
patent
of
is
a
for
converter.
scheme
was
for
1886
an
converter,
the
the core being so stamped as to form in­
terior and exterior teeth.
The description and drawing
that
the
Putnams
appropriated
his
trade
mark:
"The proposition that an author can protect his writ­
ings
by a trade
mark
is unique
seems somewhat startling.
and,
at first blush,
It is certainly offensive' to
the resthetic and poetic taste to place such poems as
ent granted to J. C. Parker for -an improved swage for
of the Stanley patent show a base plate and perfor­
dental plates, as an anticipation of the White patent.
the 'Recessional'
ated cover adapted to ventilate the cover and to pro­
category with pills and soap, to be dealt in as so much
The
complainant's
manufacture
single
of
piece
of
invention
metallic
metal,
was
designed
tooth-crowns
without
for
formed
soldered
the
of
seams,
a
and
tect
it
from
physical
injury.
Hence
the
prior
art
shows every element of the combination claimed, and
a
physical
combination of the
same
elements
except
merchandise.
and 'The Last Chanty' in the !'ame
We do not intend to
decide that such
, a trade mark is sanctioned by the law, but even if it
were,
it is manifest that the mark does not lose its
completely conforming to the contour of the natural
that the separation in the Stanley invention and the
tooth.
characteristics because used to designate an unusual
construction of the inclosing case was prohibitive of
variety of 'goods.'
the purposes of the claim in suit.
ing that he
A cast is first taken of the tooth to which the crown
is to be applied, and from it a metallic die is made.
A
such
an
inc.• osing
case
as
will
This claim covers
confine
the
non-con­
the
core
disk of gold is then shaped into a cap or cup, by means
ducting
common in the art, fitted to the metallic die, and man­
will permit the circulation of the liquid through them.
ipulated by mild hammering to reduce and round the
The
edges of its grinding surface.
fluid,
Court
and
held
such
open
spaces
that Westinghouse
in
was
the
In other words, the author, assum­
may have such
protection,
must
comply
with the law if he would have a valid trade mark."
as
first to
AN
IMPORTANT
COPPER
PAn:NT
United States Circuit Court,
DEClsION.-In
January 31,
the
1903, Judge
At this point the mold
patent such an air-tight converter. ' For the prior de­
contained in the complainant's device enters into use.
Knowles
sign excluded the novel idea of Circulating oil through
He provides a casing containing a soft metal core or
ing
the tube and intervening spaces of the coils and plates.
mold, with a hole for the reception of the metallic die
that it was merely the Bessemer process of converting
In
to
iron into steel as applied to copper, and that for that
the Circuit Court
reason the owners of the patent were entitled to no
and its gold covering.
By pressure the die is forced
into the soft metal, and the soft metal itself, acting in
accordance with the laws governing fluids under pres­
sure,
forces or swages the sides of the thin gold or
the
his
Court's
claim.
opinion
the
,hS we have
patentee
remarked,
was
entitled
of Appeals affirmed the decision.
The
Thomson
patent
is
decided that the Manhes process of convert­
copper ore into commercial copper was not new;
damages from the Boston and Montana Mining Com­
for
cooling
transformers,
designed to preserve the transformer practically cool
pany for alleged infringement of the palent.
the legal opinion has been published
Before
it is impossible
other metallic cap into conformity with the inner me­
by expusing oil or other insulating fluid in which the
tallic die.
for us to say on exactly what grounds the Court held
transformer
the
In the alleged anticipatory device, a mold
is made from the initial impression of the plaster cast,
cooling
is
immersed
medium,
which
to
some
may
be
special
artificial
passed through
patent invalid.
This
much
is,
however,
certain,
the
the mere fact that the Bessemer process had been ap­
The
plied to copper refining is hardly a good ground for
a thin plate of aluminium, gold, or other ductile ma­
oil or through which the oil may be circulated.
terial
is
the
Thomson-Houston Company claimed that Thomson was
mold
then
A
declaring a patent invalid, unless, indeed, the original
the first to cool oil in the Westinghouse converter, by
Bessemer
exposing
metals
roughly
formed
placed
around
within
a
the
mold,
cup-shaped
and
casing.
quantity of granular, shot-like material is then placed
it to a pipe of running water.
around the mold, filling the space between the mold
held
and the casing.
granted to Pyke
Vertical pressure is brought to bear
upon the shot-like material.
By reason of the curved
that
he
was
not,
in
view
of a
The Court
British
and Barnett in 1890, on
the claims of his original application
patent
which
were
all
rejected_
the
decision
These inventors say in their specification:
ants
"It is obvious that the external substances into which
lDany
is
practically equal
in
all
directions,
is
covered
of the
may be
the
converter.
gathered
maintained
refining
How
from
dollars
all
the
fact that
States is
Had the complain­
their action, damages
thousand
of
important
in the United
converted by the Manhes process.
surface of the casing, and the conversion of the shot
mold
claims
means
almost all the copper mined
into a solidified mass under pressure, the pressure upon
the
patent
by
would
have
amounting
been
to
awarded.
and
the heat is finally dissipated may be air, water, etc.,
the thin metal plate is thus made to conform to the
It remains to be seen what the Court of Appeals will
and that the cooling vessel may be internal or exter­
contour of the mold.
decide.
nal to the apparatus container."
The same law of operation is undoubtedly involved
It was held that the Thomson invention was simply
In the Parker patent it is stated that
the use of an old device for a new and analogous pur­
in these devices.
the object is to obtain a pressure that will be practical­
pose, without the necessity of any adaptation in order
ly equal, without the use of water or other liquid.
to discharge the old function in the new device.
For
Its
this purpose, shot-like material is used as an adjustable
confessed commercial success could not, therefore, be
medium.
accepted
In
the
complainant's
device
a
soft,
material was used in the place of the shot.
solid
as evidence of invention.
law
st.ill
obtains
in
process
even
penal
practised in any
to
a
Frenchman
offense,
and
for
IMPORTANT
TRADE
MARK
industry,
resident
such
fine from $100 to $4,000.
AN
France,
under
which
any
is
to a foreigner,
abroad,
liable
or
commits
to
a
a
sentence
ranging from two to five years' imprisonment and a
The idea
of each device was to produce a perfectly formed or
A
workman who divulges information regarding a secret
DECISION.-The
Lion
He is furthermore subjected
to from five to ten years' police supervision after his
contoured covering upon a certain shaped di�in the
Fig and Date Company, of Chicago, Ill., last November
Parker patent a dental plate, and in the complainant's
release from
filed an application for the registration of a label with
patent a
information to another Frenchman resident in France
the
tooth-crown-without
seaming or soldering.
Commissioner of I->�ts.
' .
A
refusal to
register
..
the label resulted in an �Weal to the Commissioner.
the die was used, and the intervening space filled with
so
severe,
The subject of the label was described as follows:
to
five
"The word 'Brittlenut' printed in red ink in diagonal
pressure upon the die, thus swaging the metallic cover­
script,
ing to the perfect contour of the die.
nearly top to bottom of the label.
It was urged that the complainant's device differed
the
first
letter
of
which
word
tooth-crown-is
bf a wholly different shape from the dental plate; that
cago, Ill.'
instead
yellow glazed paper."
of
a
comparatively
flat
curved
plate,
which
may be formed by means of force acting in a vertical
direction, the object was to compress laterally a cup
or sack-like shell around a die.
Also, that the varia­
arbitrary
an'd
from
three
to
forty
from
three
months'
accompanied. by
dollars.
On
a
the
fine
other
his employ that is within the scope of the work under­
The entire label is printed in red ink on
taken at the factory.
CONSTRUCTION OF CONTHACTS OF ASSIONl\IENT.-In the
case of the Goodyear Shoe Machinery Company against
The Examiner held
an
varying
Below the word
are the words 'The Lion Fig and Date Company, Chi­
the
ranging
sentence
imprisonment,
hand, a French employer is entitled, without reserve,
intended
formed-namely,
the
years'
to any invention or discovery made by a workman in
Brittlenut and also printed in red ink in three lines
be
of such
from
from that of Parker in that the character of the article
to
communication
In the upper curve
of said letter is placed a lion's head.
extends
Even the
in punishable, though the sentence in this case is not
In each case a receptacle approximating to the form of
a material that, under vertical pressure, gave lateral
jail.
that the
fanciful
word
word,
was believed to be artistic.
and
"Brittlenut"
that
the
is
label
According to the Patent
Dancel
(119
Fed.
Rep.
it
692),
appeared
that
the
assignee of a patent contracted to pay to the assignor
in each year while the patent "remains in force as a
tion in form of the interior of the casing of the com­
Office rules, a label must describe the product to which
plainant's device, and the providing of an aperture in
valid patent, the sum of $5,000 as an annuity."
it is to be applied.
word "Brittle­
the casing for the escape of superfluous metal, consti­
court
nut"
that
tuted such an improvement in the art as to involve in­
death of the assignor simply because they are termed
pound
vention.
In the opinion of the court these variations
tains some kind of a nut and is brittle in character,
from the earlier patent were merely such a carrying
nevertheless he does not think that the word in any
forward of the original idea as would naturally pre­
force.
way describes a confection composed of sugar, syrup,
sent itself to the mind of any skilled metal worker.
assignee
and
"Something more is required to support a patent than
his assignor, he
Examiner said that, although the two words "brittle"
a slight advance over what has preceded it, or merely
and "nut" had well-known meanings when used alone,
(International
other party, nor could such an action be maintained on
yet when -<Ised together they could not be said to de­
the doctrine of subrogation, which pertains to equity
scribe the confection made by the applicant.
alone.
superiority in workmanship or finish."
Tooth Crown Co. v. G3.ylord, 140 U. S., 55, 6 2;
Ct , 716; 35 L. Ed., 347.)
the production of an
11 Sup.
Substitution of materials in
article
is not invention, unless
such substitution involves a new mode of construction,
or
develops
made;
or,
new
uses
where
the
and
properties
superiority
of
of
the
the
is
composed
word
Finding
of two
that the
words,
and
the
com­
probably means that the confection con­
peanuts.
The
he even went so
Commissioner
far as
to
in
sustaining
the
Indeed,
annuities,
and
that
payment
do
may
not
be
cease
forced
The
on the
by
the
legal representatives so long as the patent remains in
Furthermore,
of
the
it
was
contract
held
assumed
that
because
the obligations
the
of
did not become a party to the con­
tract, so that he could be sued thereon at law by the
declare the combination
of the two words indicated no confection at all.
In previous
held that such payments
cases it has been
held
LIMITATION AS TO PnocEs8.-A claim of a patent for
that the word
a new chemical product, which is described with such
article
"label" itself necessarily implies that it is descriptive
substituted
clear
of the article to which it is applied, and that this must
recognized aside from the process by which it is made,
marks of identification that
it can
be
readily
article is shown to consist not only in greater cheap­
be indicated in the print or label itself, and not merely
ness and greater durability, but also in more efficient
is not limited to the product of a particular process
in a statement made by
action.
because such a process is described in the specification
ing it.
Such a showing was not made in this case:
the
application
accompany­
and is the only process by which it can be produced.
A decree was entered for the defendant.
KIPLING'S
AN
ELECTRIC
CONVERTER
DECISION.-Suits
fringement of letters patent issued
to
for
George
in­
West­
time
G.
"TRADE
Rudyard
P.
Putnam's
inghouse, Jr., and to Elihu Thomson , for cooling trans­
right
formers, were brought by Westinghouse Electric and
In
Manufacturing
ized publishers a
Electric
Company
Company
and
against
(117 Fed. Rep. 495).
the
Union
Thomson-Houston
trade
has
Sons
mark
SUIT.-For
lost
for
and
the
second
his action
against
infringement
unfair
of
copy­
competition.
1899 the Putnams bought from Kipling's author­
number of unbound sheets of Kip­
Company,
ling's writings and bound them up, together with some
Decrees were given for the com­
of his uncopyrighted writings, to form a Brushwood
plainants in the Circ1lit Court.
Carbide
and
M'ARK"
Kipling
An appeal was taken,
edition,
On fifteen sets there was imprinted an ele­
and the decree affirmed as to the Westinghouse pat­
phant's head,
ent, and reversed as to the Thomson patent.
leged,
was
inclosed in a circle.
his
exclusive
literary
This, Kipling al­
trade
© 1903 SCIENTIFIC AMERICAN, INC,
mark.
The
A patent specification is addressed not to lawyers,
but to those, skilled in the art to
matter
appertains.
It
matters
which the subject­
not how
many
other
people fail to comprehend the meaning of the patent
so
long as the craftsman familiar with
the
art can
understand it.
A mechanical equivalent must be capable of use as
a substitute for something else. and competent to per­
form the functions of a particular device for which it
may be substituted.