language.,'" Bellides, this is aatate law, and an authoritative construction by the state courts is controlling in the national courts. The construction here adopted, was giVen to the ordinance by a department of the superior COtl.rt of San Franciscp, in the case of Pwple v. Ah NUrL, on appeal from the police court;: While this is not a decision of the supreme court, fl;nd, absolutely, authoritative, it is a construction of a state court, and I should hesitate long before court of the same grade as presuming to overrule it, on the construction of a state la'"" even if the construction adopted by the st.ate court were doubtful, or deemed erroneous. The better way in 8uc)icases, if the construction is not satisfactory, and the cOI,lstruction, i's a question at all for the national courts, would be to prosecute anap'peal and 'follow it, if necessary, to the suin the regular order of proceeding. preme court of the United It is urged that section 8, in certain cases, clearly violates the constitution of the United and that it is, consequently, void. But this case does not arise under section 8, and is not one of the cases mentioned. It will be time enough to consider that section, when a case of the kind, suggested by counsel; is presented, arising under the provisions of that section. . , Thepe#tioner must an,d,it is so ordered.
(CircuttOourt, s.n;'OMo, W. D. April 4, 1891.)
', . , Letters patent No. 801,51)6, granted July 8, to Ricbard W. Hopking for an, , " improvement in roll-paper holders arid cUttel's,the prlncipa\!features of Which are a 4angel'01' ,bracket, an(l 8rqke, preferably In one piece, passinga bole, in the hanger or bracket' havmg its arms bent to form aspriilgo and its ends curved to pass a short roUer'or core, thus sUlipendlng'the roU'of paper and allowing it to tUrn Jrell ,on yoke,in combination with a blade having its ends bent atrig4t angle's, so as to guide the paper when unrolled, in or· ,del' that, it may be cut' Ilt'ralght, corinected with tbe bracket by means of a knife l\ ., .. ,yoke, made preferably Qt, one piece, and passing through eyes or staples driven intI> ,;,;': ,the brSC.ketand two. QP,i,l\>SJ.l, on the knife YOll:,e.,an,d so arraneed as to con· tinual1y exert their for\<ein pressing t'l!e, knife against therpll, is a meritorious ,', in,veritlOn, though everyeleIhent of the combination is o.ld; , 2. " .. :," .' Such invention is not anticirated by any device intended to accomplisb astmilar ,}:,...result in-wjlich ,the elemellt,o edge pressed against the roll so ," "that the loose end may be torn: dtf'by puilIng it across the edge, and at the same t, ,time o.perating as a brake to check·the motion of the roll, is wanting. '.' ; Pefendant's device n9t,emplQY a spring for bolding the cutter against tbe -,' roU,but makes the cutter"itself' h"ltvy enough to serve for that purpose. HeZd,., " t.hat tbis i8.:a: mere equh'alenl'.t and infringes: plaintiff's patent.
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rIn -Equity:.: Bill for ,,,: Geo. H.,' K7Lightt' for;cbm plainant.!l.,' ,:,"" ArthurStem,fM,doferilliarit. '[ Iii i,e
AMERICAN ROLL-PAPER CO. 'V. WESTON.
SAGE,'J. This is a suit for the infringement of the second and fifth claims ofletters patent No. 301,596, granted July 8,1884, to the complainant Richard W. Hdpking, for an improvement in roll-paper holders and cutters. Mr. Hopking holds the legal title to the patent, but the equitable title is in the complainant, the American Roll-Paper Company, under an agreement dated, September 12; 1884, whereby that company is vested with the exclusive right to make, use, and sell the patented machines. ' The patentee states in his specification that the invention consists...;.J, "First, iIi the combination of a hanger or bracket and spring yoke which'is adapted to spring into atld carry a solid core or roller upon which is mounted a roll of paper; second. in combioation :with a roll of papel' of a hanger or bracket and a spring knife; * * *, :fifth. in the. combination with a holder- or ,br:Wket of a springs so adjpsted as to , , ,. keep the kntfe to its use." ..
Thecllli1I!-s alleged tobQ infringed are the secon<i ,and. fifth, which are as follo.wa:: . , :' "Seoofid.: The 'combination. in a roll-paper holder and hanger or bracket forth.", '.;:.:, · '. and a spring knife IlUbstan1lially as IHa roll-paper a carrier ,or I substal} tiaIl)" sU,ch as described.' . , provided " , ' , , " , - ',. keaping the . \mife tp its wor.k." . ... "'," ". Theobject:of the 'invention is to provide means by which roll,wrap.ping, or other paper maybe' used and handled in a convenient way I and by whichiany lengthor 'strip required may be torn oreut from the roll, which· is projected or suspended from the,hange'r or !btacket by. means of a yoke,'preferably of one piece, andpassitig through a hole or slot in the hanger or bracket. It has its arms bent to form a spring, and itsiends curvedto:pass al3hort dismnceinto,the roller or core; thus suspending the roll of paper; and allowihgit to tum freely on the ends of the yoke., A blade, having its ends bent' at right angles, so as to g.uide the paper when it is unrolled, in order that it may be cut straight; is connected with the braoketby means'of a knife yoke, made preferably of one piece; and passing through eyes 'or staples driven into the bracket. The ends of this yoke,arerivetedto the knife, as shown in the specificatitm. Two coil springs wound on the, knife yoke are so arranged as to continually exert theirforaein pressing the .knife against the roll. The patentee 'states that by his invention the paper is easily and CODveniently'handled, and any length of sheet maybe torn by laying hold of the loose end and pulling it across the.khife edge, the bent ends of the knife holding the paper ,true, and insuring a straight cut. He states that the bracket may be bolted to or suspended from the under side of counters, shelving, or other fixtures,: or it may be fastened against the wall, in which case the roll would project at right angles to the wall, and braces or'shoulderlJ would have: to be provided on the brac.ket Dll hanger: for the purpose of supporting or keeping the spring yoke horizontaljas is. shown in the drawings., , Under the defense of anticipation the defendant relies, first, upon patent No. 12/164, April 1:0, 1895, to Duryea, for, i.mprovementsin;ll\&rd
exhibitors and distributors. The cards are printed at suitable intervals .QDalmlg strip of paper, which is wound upon a roller and placed in a box, provided with an opening through which the end of the strip containing the cards passes, so that it can be laid hold of and pulled out the required distance when it is desired to take off a card. This opening is provided with a hinged spring plate or holder for retaining the end of ths printed slip in place, and. for holding the strip after it has been drawr. out far enough, also serving as a guide by which to tear off the ends.. There is not shown here a knife pressing against the roll to act as a brake therefor. There is nothing to check the motion of the roll when the operator ceases to pull on the end of the paper, and this machine does not l in my judgment, anticipate the combination of the second and fifth claims of the complainant's patent. But ins argued for the respondent that, if it required invention to add a brake to the paper roll of the Duryea patent, a spring brake for this purpose is shown in patent to Haehnlen, No. 208,906, of October 15, 1878. This patent relates to a ticket reel, in which several rolls of tickets, printed on perforated strips of paper, are supported inside of a box upon journals pivoted thereto, and a spring which presses against the outer 'surface of the roll of paper toaot as a friction brake is fixed to the side6fthe ·box. The paper passes out through slots in the case,' which may form· the tearing edge. There is nothing in this machine to prevent the free end of the strip of paper from moving back into the box when the ticket is torn· off, and it would be likely to go back into the box if the edge of the slot were used as a tearing edge. This machine shows no knife serving as a brake and cutting edge, and is not an anticipation. The next device claimed to be in anticipation is a paper slitting machine manufactured under patent to Clark, No. 129,319, July 16,1882, in which a series of knives is 'employed acting upon a roll of paper to divide a sheet lengthwise into narrow strips. These knives are arranged in a bar resting upon the roll of paper, and this bar is secured to hangers. which are pivoted to suitable supports. Now, counsel say that by rethe knives the bar could be used as a convenient tearing edge, and that the device would then present all. the elements of complainant's patent, combined in substantially the same way, excepting that the bar is weighted to press the knives to the paper, instead of being acted upon by a spring, these devices being equivalents. This seems to me to be a fair illustration of the facility with which, after anew improvement has been perfected, suggestions covering.its patentable features may be pointed out in older devices, but I am not able to see that there is anything in the Clark patent which, rightly considered, anticipates the complainant's improvemen t. . The same lllay be said of the .Toof patent, which is for a machine desingle eheet of paper, and to present it line by line to a eigned to copyist. One end of the paperis.cmmped between the edges, and passes under an' elasticbitr or index, but this bar is not so constructed as to adapt 1itse1f to varyjng sizes of.1'o118 of paper,or act as l!o brake. It re-
AMERICAN ROLL-PAPER CO. V. WESTON.
quires to be adjusted by hand. The machine is therefore not adapted to hold roll paper, and could not be made to serve the use of complainant's device. Law's patent, No. 229,001, June 22, 1880, is another copy-holder, in which two rolls are employed, one guided in slots in the supports, so as to rest upon the paper as a friction brake, the other mounted on side supports., so as to tum freely, and intended to receive a strip of paper. Arms are pivoted to the frame, and carry a cross-bar. rfhese arms bear upon the pivot of the adjustable upper roller; and the cross-bar is intended to hold the paper in place after it has passed the roller, and by its weight to press upon the arms, which aetas levers to bear down the upper roller. The paper passes from the rear between the rollers, and ishald down upon the cross-bar, F, by the bar, E, which also serves as a mark to guide the eye of the copyist upon the paper from which the copy is made. The paper is advanced line by line by turning the handle of the lower roller. This machine contains no roll of paper, has no knife pressed against the surface of the roll of paper, and is not, in my opinion, an anticipation. Next is' the Eaton patent, September 25, 1883, No. 285,398, for a roll-paper holder and cutter, with a roll of paper journaled in a frame so pivoted. to the side of the wall, at a point above the roll, tha.t the weight of the roll holds its outer surface against the face of the wall. A rubber band, designed to act as a brake to prevent the too easy unwinding of the paper, is connected to the pivot and to the frame below the roll, so thaHhe band lies between the surface of .the roll and the wall. The paper is unwound by pulling its free end over the end of the serrated knife, which is pivoted to the frame, and drawn into position when the paper is tom off. The knife blade in this machine never touches the surface of the roll. The roll is always in contact with the wall, and held there by its own weight, so that the friction is constantly changing as the size of the roll diminishes. This patent does not anticipate the complainant's. The Moore patent, No. 297,618, dated April 29,1884. is for a paperhold'!!r. In this patent, also, the roll is designed to bear against the wall, so that the friction diminishes as the roll diminishes in size, and the knifa is not so constructed or applied as to produce the necessary friction upon the roll required and effected in the complainant's machine. This patent, for the purpose of anticipation, speaks from the date of its issuance, which is subsequent to the date of complainant's application for his patent. See Howes v. McNeal, 5 Ban. & A. 77. The patent to Burgess, No. 212,893, March 4, 1879, for an improvement in tension devices for thread spools, is also relied upon as an anticipation. There is no cutter in this device, nor any frame by which the spool may be supported so as to tum upon its axis free from contact with anything except a cutting blade, and I do not find in it the elements of the second or fifth claims of the complainant's patent. The H;qdingpatent, No. 267,884, November 21, 1882, is a thread v.45F.no.l0-44
guard and cutter, the object beingt6,providea small and convenient device for the free end of the thread on the spool, so as to prevent accidental unwinding, and to provide a means whereby the thread may beeasiJycut'when the desired length is unwound.. Itconsists of a piece of benhnetarlhlliving eyes in its endeclampedMlouud the spool of thread, eyes. and the other the loose end of the thread passing through one eye serving M8 cutter. 'fhis is not adapted for a paper holder and cutter. It has no; frame by which the spool is held So thatit may, revolve freely, and there is no need of snoh a frame for a thread guard. It has no Ihlife hinged to 'a frattle-work, and it does not contll.inthe elements of the second and fifth Claims o£the':complainant's patent, nor has it the functions of either of those 'claims. , ' The Newbury patent, No. '293,3i49, dated February!12j 1884, is fdra This patent wQuld09t anticipate,everii if it did contain theelem.ents of the olaims s'ued ;upon,for the reasol1.:that the evidence carrieS the date of the'Hopking; inventionba<Jk to a'periGd prior to the The casB'of lIowes McNeq,l, already cited, date of the Newbury is in point. But, aside from this consideration, it doea not anticipate. It is a paper-holder inwhioli thero1l'ofpaperlies Imosel'y'nUhe bottom of the paper passing out through an 'opening:in of a trough, the free tliebox ovel' a knife, so to the'frame astoturtr down into the positioJl"sho'Wn in thedrllwing of the !patent; when the: sheet of paper is drawndown··fortbe purpose pf tearing it off against the: knife edge.i: The effort draw the pap ill: out' of the boxdepimds :upon:the size of the' roll. ' The weight of the roll forces the loose ,end iof tbe paper agaillilt the:bottom oftMtrough, aild in pulling the paper out it must slide on the bottom of the trough, the ease with which Hslides dependirigupon the' weight of, the roT!.; If that is heavy, the -paper is likely to tear, but it call be drawn olitjif'l'ight, the paper caribe ,drawn out so easily as llotto be cut off with the knife. "fhis machine is oot adapted and could riot :be used for wrapping paper; It doosnot contain a knife pressed against the roll" nor against the loose end of the paper, and it does notilnticipate. ':' . " ;" ' , . The Newbury patent No. 193,175;July17,1877, is fora paper-holder in' which the roll is suppbrtedup0n an axis, so 'that the sheet may be pulled out the desired length and torn off, the paper being operated: by <me hand, and a swinging the .other, against which the paper is torn. There is nothing to arrest the motion of the roll of paper when the operator ceases pulUng,on its end, nor is there anything to hold the free end of the paper in its place after it is cut, and this patent cannot be recognized as an anticipation. . .,. . The English patent to.HenryCrosS, No. 1,800, dated May 9, 1817, for fare-indicating apparatus, shows:a device designed to hold 'tickets printed on rolls of' paper, perforated transversely, at: regula'r distances apart. Each compartntent of theapparatus'contnil'lsa:rpll.· At the front of the compartment is an aperture thronghwhich the; ticket strip is drawn, and the ticket then torn offand given to the: passenger; in recelptfor his fare. A ,revolving eoHof wire fitted just witbineach; aperture pre·
AMERICAN ROLL-PAPER CO. 91. W:mBTON.
vents th'Elticket strip from being drawn backward. The roll is free to revol ve upon its axis, and there is no cutting blade pressing against its surface to prevent its motion. The free end ·oLthe paper passes over a rod, and through the slot in the side of the box, and between two blades, which bear close together, and allow the ticket to be caught hold of, but prevent its being reinserted in the box. These blades, while they serve to hold a. 'strip of tickets, are not intended to serve as cutting knives, the strip of'tickets being perforated for the purpose of permitting them to be torn off1'eadily outside the outer edges· of the blades. If the· blades were used as cutting edges they could only be used once, for the reason that thepa()el' would be torn off close to the edge, and could nut be caught again for the purpose of drawing out a second ticket. '1'here is no anticipation hete.· The Wheeler patent, No. 297,043, April 15, 1884,ia suhsequent to the date of complainant's application for his patent, and might be dismissediwith that remark, but it is nothing more thana paper-holder in which a roll of paper is pivoted to a yoke, the yoke being pivoted against the side 'of the wall, and the roll pressed against the wall by its own weight. Itihas no cutter of any kind, and it would not anticipate.if there were no objection on account of its date. The' pRtentto Jerome, No. 248,323, October 18, 1881, shows a device for tea.ring wrapping paper from continuous roll sheets. In one form of constru(jtion,theroll is designed to lie upon a counter or shdf with a straight/edge rei:lting on the free end of the paper, and connected by pivoted llrlllsitd the axis of the roll pa per. The objection to this form of oonstruction is that the freedom with which the roll would turn would pOlltinually'ihcrease as the size diminished, and if the roll were heavy the paper 'never' could be pulled out by taking hold of its free end. Another conl$trtaction shows the roll of paper journaled ina frame which rests on a'oounter with a straight edge journaled to the frame,orpivotedto the frame, and resting on the end of the paper. The roll is free to revolVer upon its axis, and there is nothinp; to prevent its overrunning and turning too far when the paper is pulled out. In neither construction is· there a knife in contact with the roU of paper serving as a brake or tension'device to prevent-the unwinding too easily, and serving same titneas a cutting edge against which the paper may be torn. It does 'n()t therefore contninthe elements of the combinations of the second IUldfifth claims of the complainant's patent, nor has it th 13 functionsofeither of those combinations. This Jerome patent could (lnly be operated by drawing the paper out with one hand, and pressing down on the straight edge or rule with the other ,80 as to hold it firmly against'the paper beneath it when the unwound paper in front of the straight"edge,or rule can be torn the'paper againstthe sharp'fJl edge. IHs an exceedingly cumbersome and inconvenient jlat· device': when .compared with' ,the complainant's, which it by no means anticipat611. . , English patent of 1883,: No. 3,988, was disposed of by the stipulation of the parties thattbei date of its sealing \ynsthe 13th of
vol. 45. -
november, 1883, which is subsequent to the date of the complainant's invention. See Smith v. Vulcanite Co., 93 U. S. 486. The remaining devices relied upon as anticipations, and in support of the defenses of prior use and of non-invention, were used in the summer of 1883, at Barr's dry-goods house in St. Louis. In June of that year there was introduced into that house the autographic register, a device for holding double rolls of paper, and provided with a straight edge for tearing off one or more of the sheets. About the same time roll paper for wrapping purposes was also introduced into that store. It was supported substantially, if not identically, as in complainant's patent. The complainant Hopkingwa.s then a salesman in that store. His testimony is that his conception of his invention came to him when he saw those rolls of wrapping paper; that it came to him at once that what was wanted was a cutting knife, which he then went to work trying to "get up." Robert Herries was an employe in the woolen department of Barr's store in 1883, when roll paper for wrapping was introduced. His testimony is that he straightway constructed a device, a copy of which is in evidence, which consisted in arranging between the upright end supports of the roll a wooden ruler, beveled on one side, and notched to. fit· the yoke, eo that it had vertical play between the su:pports and above the top of the roll. Mr. Herries testifies that in using tbis device both hands were necessary, one to hold the knife or cutter down on the paper, the other to tear the paper off against the knife., Only two of these de"\1ices wei'emade. They were cast aside when theeomplainant's maohine'was constructed, and never used afterwards. , Thete is also testimony that a similar device was gotten up by another employe in the same house, named Bolger, who died October 22,1883. This device consisted of a small board provided with screw eyes, one at each corner, and rubber bands were placed between these, and attached to the support of the roll, and intended to hold the cutter or wooden knife against the paper roll by the tension of the rubber band. With reference to Bolger's device, the weight of testimony is that it was subsequent to the date of complainant's invention; but, if it should be allowed to be earlier, the testimony is clearly that it did not work, for the reason that in tearing off the paper the cutter would snap up against the frame-work above. It was used not more than six weeks, and was a failure, for the reason already stated, and for the further reason that it got out of order very easily. I cannot recognize either of these devices as anticipations or as available in any way as defense';!. The rolls of wrapping· paper in use at Barr's store were provided with no means for tearing off such portioneas might be needed, and their use was attended with such inconvenience that these devices were resorted to as temporary expedients for relief. . No one excepting Hopking went to work to devise a contrivance that would be permanent and effective. He sUcceeded in perfecting a new and useful organization, which was the first to completely obviate the difficulties attending the use of roll paper for wrapping purposes. It is in my judgment an ingenious and useful de-
DAVIS fl. PARKMAN.
vice. It saves paper and space, and time and labor. It is readily operated with one hand, leaving the other free for holding the package to be wrapped, which is a decided convenience and advantage. The great and constantly increasing demand for it, dating almost immediately from its introduction, is strong testimony in its favor. It only requires to. be placed side by side with the prior devices to make its superiority apparent at a glance. Now, it is true that every element of the combination is old, but the result is a new and useful organization, which cannot be regarded as merely an aggregation. I satisfied that it displays invention ; that the patent for it is valid; and that the defendant is an infringer. It is trUe he does not employ a spring for holding the cutter to its place against the roll, but he substitutes what is an equivalent by making the cutter heavy enough to serve as a weight suf. ficient for that purpose. The decree will be for the complainants.
DAVIS 11. PARKMAN,
(OO'cuit Oourt, D. MassachUBetts. Maroh 21,1891.)
'rhe combination of a swinging rowlock and a pin or standard having an outward curvature. (letters patent No. 209,960, Nov. 19,1818,) intended to increase, while still . limiting, t)le path in which the button of the oar can travel, is not patentable, as the curvature of the pin requires only mechanical skill.
PATENTS POR IlIlVENTIONS-PATElIlTABILITy-RoWLOOXS.
The claim of a rowlock, swinging or stationary, having an inward convexity 1,1pon the upright, (letters patent No. 209,000, Nov. IlJ, 1878l ) being simply the surface of a thole pin or upright inclined to the plane of the norizon, is not pBitentable; the same device having been long in use on dories and other boats. A roWlock with an inset in the sill, as described in claim 2 of letters patent No. 209,960, Nov. 19. 1878, 80 as to permit the oar to .approach more nearly to a vertical position by removing further from each other the vertical planes of the outer side of the sill and the inner side of the offset arm, is not patentable. . . Claim 4 of letters patent No. 209,960, Nov. 19, 1878. for an outrigger consisting of double braces united at their outer ends, one of them being attached at its inner end to the center of the boat, and perpendicularly, or nearly so, to the side of the boat, whereby the latter can be grasped at its center for transportation, is not patentable,' since no inventive skill is required to so change the position of the braces. A foot-board for a row-boat having the point turned up at an angle with the body of the board (letters patent No. 231,017, Aug. 10, 1880) isa patentable invention, though the purpose was formerly accomplished by stufllng rags nnder the toe of the rower.
. . SAME-OUTRIGGER.
The claim of. letters patent No. 281,016, Aug. 10, 1880, for "an oar, the portion, D, . of which; that. fits in the rowlock i8 in transverse section of a general form, as Ililscrit!ed, wherebr the oar may be rooked in the rQwlook WIthout lost motion between the oar and the rowlock, .. is not patentable. .. "
. In Equity. Joshua H.Millett, for complainant. GeorgeW.. E8tab1'ook, for respondent.