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by what has been done. Congress alone has the power to determine whether the judgment of a court of the United States, of competent jurisdiction, shall be reviewed or not. If it fails to provide for such a review the judgment stands as tbe judgment of the court of last resort, and settles finally the rights of the parties which are involved.
The petition is dismissed.
(109 U. S. 99)
KING ». GALLUN and another.
(October 29, 1883.)
PATENTS FOR INVENTIONS LACK OF NOVELTY.
Letters patent No. 152,500, dated June 30, 1874, granted to the appellant for certain
improvements in baled plastering hair, declared void for want of novelty. In deciding whether a patent covers an article or process, the making of which
requires invention, the court is not required to shut its eyes to matters of common knowledge, or things in common use.
Appeal from the Circuit Court of the United States for the Eastern District of Wisconsin.
This was a bill in equity brought by Wendell R. King, the appellant, against August Gallun and Albert Trostel, to restrain them from infringing letters patent No. 152,500, dated June 30, 1874, granted to the appellant for certain improvements in baled plastering hair.
The invention and its advantages are thus set forth in the specification:
“ It is found that the wants of the trade in plastering hair require it to be compressed for transportation in packages of from three to five bushels; this amount of hair forms a package of a good size to conveniently handle, weighing from twenty to forty pounds. The trade unit for the article of plastering hair is always the bushel; it is sold by the bushel or by the multiple thereof.
“Heretofore this hair has been packed in a mass of a certain number of bushels baled together, varying in amount as the order required, so that when received the retail dealer was compelled to parcel out the same and weigh it to suit his customers. This is a disagreeable and difficult thing to do, as the hair is dirty and matted together, and after it is once removed from the case into which it has been compressed by a baling press, is bulky and not easy to reduce again to a convenient package. For this convenience of the trade i propose to form the hair in small bundles of one bushel each, and unite several bundles into a bale of a convenient size for transportation.
•"I first place a bushel of hair into a paper sack loosely, or only so far packed as may be readily done by hand; several of these one-bushel packages are then placed side by side in a baling press. I use for this purpose the baling press heretofore patented to me; they are thus compressed forcibly together, so that the bale produced will be a compact, firm bale, occupying only about one-fifth of the original bulk; the paper bags which still envelop the individual bushels of the bale keep said bushels separate, and serve at the same time to protect the hair.
“The bale, after being compressed, is tied in the usual way, and is then in shape for transporation without further covering, although it may be desirable, if the bale is to be sent a long distance, to envelop it in a stout sacking cover. Hair baled thus may be separated by the retail dealer into bushel packages, each of which remains compressed into a small size, and is in convenient condition to handle.”
The claim was as follows:
• Having thus described my invention, I claim as an article of manufacture the bale B, of plasterers' hair, consisting of several bundles, A, containing a bushel each by weight, inclosed or incased in paper bags or similar material, and united, compressed, and secured to form a package, substantially as specified.”
The defense was want of novelty in the alleged invention, and that the same was not patentable.
The circuit court dismissed the bill, and from its decree the complainant has appealed.
L. L. Coburn, for appellant.
Woods, J. We are of opinion that the patent of complainant does not describe a patentable invention. The claim is for an article of manufacture, to-wit, a bale of plasterers' hair consisting of several bundles inclosed in bags, and compressed and secured to form a package. It is evident that the patent does not cover any improvement in the quality of the hair. Its qualities are unchanged. It does not cover the packing of the hair into parcels, or the size, shape, or weight of the parcels, nor the compression of the parcels separately. Nor does it cover the material of the bags which constitute the outer covering of the parcels. Complainant claims none of these things as secured by his patent. The packing of hair and other articles in parcels of the same shape, size, and weight, and the compression of the several parcels, has from time immemorial been in common use. Neither does complainant contend that his patent covers a single parcel or package of hair. All, therefore, that the patent can cover is simply an article of manufacture resulting from the compression and tying together in one bale of several similar parcels or packages of plasterers' hair. The object of this invention is thus set out in the specification: "For the convenience of the trade"that is to say, to enable the retail dealer more easily to parcel out the hair in quantities to suit his customers,—“I propose to form the hair in small bundles of one bushel each, and with several bundles into a bale of convenient size for transportation." The invention and the object to be accomplished by it are thus seen to be contained within narrow limits.
In deciding whether the patent covers an article, the making of which requires invention, we are not required to shut our eyes to matters of common knowledge, or things in common use. Brown v. Piper, 91 U. S. 43; Terhune v. Phillips, 99 U. S. 592; Ah Kow v. Nunan, 5 Sawy. 552.
The subdivision and packing of articles of commerce into small parcels for convenience of handling and retail sale, and the packing of these small parcels into boxes or sacks, or tying them together in bundles for convenience of storage and transportation, is as common and well known as any fact connected with trade. This well-known practice is applied, for instance, to fine-cut chewing and fine-cut smoking tobacco, to ground coffee and spices, oatmeal, starch, farina, desiccated vegetables, and a great number of other articles. This practice having been common and long known, it follows that there is nothing left for the patent of complainant to cover but the compression of the bale formed of several smaller parcels. Can this be dignified by the name of invention? When the contents of the smaller parcels are such as to admit of compression into a smaller compass, the idea of compressing the bale of the smaller parcels for transportation and storage would occur to any mind. There is as little invention in compressing a bale of several parcels of hair tied up together, as in compressing one large parcel of the same commodity. But it is perfectly well known that the compression of several packages of the same thing into larger packages or bundles is not new, and that it has long been commonly practiced. Packages of wool, feathers, and plug tobacco have been so treated. The case of plug tobacco is a familiar instance. The plugs are formed so as to retain their identity and shape, the outer leaves of the plug forming at the same time a part of the plug as well as its covering. The plugs, after being so put up as to preserve their identity under pressure, are, as is well known, placed in a frame and subjected to pressure, and reduced to a smaller and compact mass, which is then boxed up and is ready for market. This is done in part for convenience in handling, transportation, and storage. When the box is opened by the retail dealer, the plugs can be taken out separately and sold. This method of treating plug tobacco would suggest to every one the compression into a bale of distinct packages of plasterers' hair, and leaves no field for invention in respect to the matter to which the patent of complainant relates.
In view of the facts to which we have referred, which are of common observation and knowledge, we are of opinion that the article of manufacture described in the specification and claim of the complainant's patent does not embody invention, and that the patent is for that reason void.
In support and illustration of our views, we refer to the following cases decided by this court: Hotchkiss v. Greenwood, 11 How. 248; Phillips v. Page, 24 How. 167; Brown v. Piper, 91 U. S. 37; Terhune v. Phillips, 99 U. S. 592; Atlantic Works v. Brady, 107 U.S. - S.
-; [ C. 2 Sup. Ct. REP. 225;] Slawson v. Grand Street, etc., R. Co. 107 U.S. —; [S. C. 2 SUP. Ct. REP, 663.]
The patent of complainant cannot be sustained by the authority of the case of Smith v. Goodyear Dental Vulcanite Co. 93 U. S. 486, where
the court said: "The invention is a product or manufacture made in a defined manner. It is not a product alone, separate from the process by which it is created.” In that case the invention was the product of a new process applied to old materials. In this case it is the product of an old process applied to old materials.
(109 U. S. 182)
NEWMAN 0. ARTHUR, Collector, eto.
(November 5, 1883.)
DUTIES ON IMPORTE-COTTON GOODS-CLASSIFICATION OF.
The plaintiff contended that the goods imported by him were not embraced in the
provisions of the statute (section 2504, Rev. St., sched. A) applicable to “manufactures of cotton," described and classed by the number of threads to the square inch, because that description had reference only to goods so described and classed by mercantile usage in dealings between buyers and sellers, where the threads could be counted by the aid of a glass, whereas the goods in question were of such a fabric that the threads could not be counted except by unraveling the cloth, and consequently it was not dealt in by merchants according to any such usage, and that, therefore, the fabric in question being of new manufacture and unknown at the date of the passage of the act, was not covered by the specific enumeration of the statute, and the appropriate duty must be determined by the final clause of the statute, embracing “all other manufactures of cotton not otherwise provided for." Held, that the construction of the statute, as given in Arthur v. Morrison, 96 U. S. 108, could not be applied to the case at bar. There is no reference in the statute, either expressly or by implication, to any commercial usage, and there is no language in it which requires for its interpretation the aid of any extrinsic circuinstances. The law fixes the rate of duty by a classification based on the num: ber of the threads in a square inch, without reference to the mode in which the count is to be made. The fact that at the date of the passage of the act goods of the kind in question had not been manufactured, cannot withdraw them from the class to which they belong, as described in the statute, where, as in the present case, the language fairly and clearly includes them.
In Error to the Circuit Court of the United States for the Southern District of New York.
Edwin B. Smith, for plaintiff in error.
MATTHEWS, J. This action was brought to recover money alleged to have been illegally exacted by the collector of customs at the port of New York, and paid under protest. There was a verdict and judgrent in favor of the defendant below, to reverse which this writ of error is prosecuted. The importations were made in 1875 and consisted of cotton goods, upon which the collector assessed a duty of 5} cents a square yard, and 20 per centum ad valorem. The plaintiff at the time of the liquidation claimed that the goods were liable to a duty of only 35 per cent. ad valorem as manufactures of cotton not otherwise provided for. It was proven on the trial that goods like
those in question were first manufactured in Manchester, England, in 1868 or 1869, they being then a new article of manufacture, and were first introduced into this country in 1869 or 1870. They have been known since their first introduction into this country in trade and commerce by the name of cotton Italians, and used exclusively for coat linings. The importations in question were wholly of cotton, and dyed black in the piece, after being woven, and were made in imitation of a well-known article called Italian cloth, made of wool, and used for lining woolen coats. The surface of the cotton Italians was by some process of weaving and calendering made smooth and glossy like that of the real Italians. Plain woolen goods are those in which the warp and woof threads cross each other at right angles.
Cotton Italians are not plain woven, but are twilled goods, and had upon them figures of different designs made in weaving. The cotton Italians in question had more than 100 threads, and less than 200 threads, to the square inch, counting the warp and filling, and were less in weight than five ounces to the square yard, and did not exceed in value 25 cents to a square yard. Plaintiff's counsel gave evidence tending to show that the number of threads to the square inch in plaintiff's importations could not be counted without unraveling the goods.
The plaintiff's counsel asked the plaintiff, who was duly sworn as a witness in the cause, the following question: "Are the goods bought and sold by the count of the number of threads ?” The defendant's counsel objected to the question as immaterial. The court sustained the objection, and plaintiff's counsel duly excepted. The plaintiff's counsel then offered to prove by the witness that goods like those in question were never known in trade and commerce in this country as countable goods, or so bought and sold. The defendant's counsel objected to the evidence as immaterial. The court sustained the objection, and plaintiff's counsel duly excepted. Plaintiff's counsels then offered to show that prior to 1861, and ever since, there have been in trade and commerce in this country a great variety of cotton cloths known as countable goods, and which were bought and sold by the number of threads in the warp and filling, which number of threads were ascertainable by a glass and without taking the fabric to pieces. The defendant's counsel objected to the question as immaterial. The court sustained the objection, and plaintiff's counsel duly excepted. The plaintiff's counsel then asked the witness the following question: "Was the value of cotton Italians partially or wholly determined, between the manufacturer and the purchaser, according to the number of threads to the square inch ?” To this question defendant's counsel objected as immaterial. The court sustained the objection, and plaintiff's counsel duly excepted.
It was conceded that plaintiff's goods were neither cotton jeans, denims, drillings, bed-tickings, ginghams, plaids, cottonades, nor pantaloon stuff, nor goods of like description to them or either of them, or for similar use.