ÆäÀÌÁö À̹ÌÁö
PDF
ePub

3 F.(2d) 66

between said support and launchway," but that is limited by the material element defined, "means for rendering said connection substantially unyielding." But for such limitation the original claim in my opinion would have been rejected with original claim 1.

The elements "a plurality of spaced cushioning connections," found in claim 9 (formerly claim 11), have a meaning limited to the words used and cannot be given a broader meaning or the claim would have been rejected as were the other claims. Claim 6 as submitted (then numbered 7) provided between said vessel and a medial submerged portion of the launchway "a resilient reinforcing connection." This was rejected, but was amended and reads in its final form, "a supporting connection including resilient means.' The claim as allowed, in my opinion, cannot be held to cover a supporting connection which is inherently resilient.

The rejection of claims 5 and 8 as submitted, the cancellation thereof, and the argument made on behalf of the patentee in favor of the present claim 8 of the patent in suit, clearly limits the patentee to a buoyancy tank secured to the launchway, the function of which is to regulate the ac-, tion of the scraper. It thus appears that the patent in suit is a combination patent, and if any essential element of any claim is omitted the patent is not infringed.

[2] The patent in suit is not a pioneer patent, and while the patentee is undoubtedly entitled to a restricted range of equivalents, he cannot broaden the allowed claims of his patent by claiming as an equivalent anything that was rejected.

The first question to be decided is: Does the defendant's apparatus infringe the patent in suit?

The apparatus of the defendant is clearly shown by the blueprints offered in evidence and by oral testimony, and the launchway and trailer were examined by me in company with the counsel for both parties at the defendant's pier on Staten Island. The apparatus included a derrick scow, a curved steel launchway of bridge-like construction, supported at its forward or upper end from the scow, its lower or rear end resting upon the trench bottom. The lower end of the launchway was sheathed over on its underside for a distance of approximately 36 feet. Within the launchway suitable guides were provided which, while hold ing the pipe in alignment, permitted the same to slide down as the apparatus was advanced after a joint was completed.

The connections between the launchway and the scow included a heavy wire ropebridle attached to a spreader, which was in turn attached to the launchway, the bight of the bridle resting in the groove of an eccentric sheave. The eccentric sheave was pivoted upon a longitudinally extending shaft mounted in an I-beam framework rigidly secured to and projecting slightly over the bow of the scow. There are two wires that come from the lower end of the launchway to a spreader, two more that come from the spreader to a block in which a sheave is located. The towing wires which go to the deck are in reality one wire with the bight engaged by this sheave. The two runs of the towing wire come up over sheaves mounted on a transverse horizontal axis in the forwardly projecting end of the I-beam framework on deck. The port run of this wire has an eye spliced therein and is connected by a link to a turnbuckle, which in turn is connected to a threaded rod passing through a crosshead on the I-beam framework. Behind the crosshead the threaded rod is surrounded by a washer, a pipe spacer or spreader, another washer, and a nut. The port run of the towing wire goes into and around a sheave in a block resting on the I-beam framework, and is returned upon itself and held by cable clamps. The block is attached to a turnbuckle, which in turn is attached to a threaded rod extending through the crosshead and fastened exactly as the port run of the wire is fastened. There are also two preventer wires which are attached to the lower end of the launchway at the same point as the towing wires, and lead diagonally outward and upward to the corners of the bow of the scow where they are fastened to bitts in the usual way.

A pontoon or buoyancy tank was mounted at the lower end of the launchway adapted to be filled with air if occasion required in order to lighten the bearing of the launchway on the bottom. In the laying of Narrows siphon No. 2, this tank was filled with water at the beginning of the work and remained filled until completion.

In addition to the foregoing, the defendant, for the purpose of straightening the pipe as it left the launchway, attached to the lower end of the launchway a device of box-like construction called a trailer, which was connected to the launchway by a horizontal shaft extending from side to side of the launchway and surrounded by a folded metal hinge member which embraces two forwardly extending plates of the trailer, the plates and hinge member having registering holes through which a vertical pin

passes, giving the trailer considerable free- greater degree than the latter"; and even

dom of movement relative to the launchway in a vertical plane, and limited movement relative to the launchway in a horizontal plane. The underside of the trailer for substantially one-half of its length from the rear end was sheathed over, and from the forward end of this sheathing to the forward end of the trailer the structural crossbars were left open. These crossbars were of solid 2x4 cross-section and served to hold the box-like structure together as well as to support guide rails upon which the pipe rested as it passed through the trailer. All of these crossbars were rectangular except that the forward side of the crossbar where the forward end of the sheathing commenced had a slight angle. When assembled with the launchway, the underside of the trailer, including the sheathed-over part and the crossbars, were all substantially on the same horizontal plane.

Plaintiff contends that defendant's apparatus was not constructed as the result of the independent work of Mr. W. L. Chapman and others employed by the defendant, but that Mr. Lewis exhibited his drawings to Mr. Chapman, and that such drawings formed the basis of the defendant's apparatus. In my opinion the plaintiff is in error in this contention and I utterly reject it. The defendant's apparatus follows the teachings of the prior art. A careful consideration of the defendant's apparatus and all the testimony in the case at bar convinces me that the defendant does not employ springs or spring means, or a scraper, as defined in the patent in suit. The extra washers shown in the photograph of the apparatus used in 1923, near the place where the pieces of pipe were installed, in places where springs were used in 1914, does not even tend to overcome the positive evidence that no springs were used in the 1923 apparatus.

As I have hereinbefore held, claims 1, 3, 4, 5, and 7 of the patent in suit are definitely limited to include a spring in some form in the connection between the scow and the launchway, and as I find that there are no "springs," "spring means," or "cushioning springs" or equivalents thereof in the defendant's apparatus, one of the essential elements of each of the said claims is not found in the defendant's apparatus, and claims 1, 3, 4, 5, and 7 of the patent in suit are not infringed.

Claim 2 of the patent in suit defines, as one of the elements, "a yieldable connection between said support and launchway for permitting the former to rise and fall to a

if the connection between the defendant's scow and launchway be in a sense "yieldable," it is not yieldable in the sense that that word is used in said claim in the patent in suit, because the launchway hangs directly from the eccentric sheave and must rise and fall as the eccentric sheave rises and falls. Nor can it be claimed that the wire rope, because of its inherent resiliency, affords such yieldable connection, because if that were so the claim would be invalid in view of the prior art.

The meaning of "yieldable connection" as defined in the said claim 2 may be more readily ascertained by reading the modifying element of said claim "and means for rendering said connection substantially unyielding," which means are described in the specifications, page 2, lines 89-93: "Similarly, wedges or chock blocks 47 are provided for insertion in the slots 39 below the shaft 37 for completing a rigid connection of the launchway with the vessel." From which it is apparent that the "yieldable connection" as defined in claim 2 of the patent in suit is a connection including springs.

In the defendant's apparatus there are no springs, and if the connection between the scow and the launchway in the defendant's apparatus is in any sense yieldable. there is nothing whatsoever by means of which this connection can be changed or rendered unyielding.

Claim 2, therefore, is not infringed.

Claim 6 of the patent in suit defines as one of the essential elements "a supporting connection including resilient means between said vessel and a medial submerged portion of said launchway.” This claim is drawn to read upon the rear sling 21 of the patent in suit containing the spring 21′ therein. I find no such support in the defendant's apparatus, and were it not for the spring 21' claim 6 would be invalid. Even if it could be held that the towing and preventer wires constituted a support, they would not be the supporting connection defined in said claim, between the vessel and a medial submerged portion of said launchway, as both towing and preventer wires are attached to the launchway at the extreme rear end and not at the "medial submerged portion there. of."

There are no springs in the defendant's apparatus, and the plaintiff, as I have hereinbefore shown, has limited himself to “a supporting connection including resilient means," and cannot claim that a wire rope is an equivalent of the spring because of its inherent resiliency, as a claim made by

3 F.(2d) 66

the defendant's apparatus, there can be no "buoyancy tank secured to said launchway and tending to regulate the action of said scraper." Plaintiff cannot broaden his claim to cover any buoyancy tank, because they were well known to the art, and he succeeded in having the present claim 8 allowed on the argument hereinbefore quoted, wherein the buoyancy tank in his application was differentiated from others.

him for "a resilient reinforcing connection" Having found that there is no "scraper" in was rejected and he acquiesced and amend ed by substituting the present claim 6. Claim 6, therefore, is not infringed. Claim 8 of the patent in suit makes no reference to the character of the connection between the scow and the launchway, but after defining a "launchway," defines as two of its material elements, "provided adjacent its submerged end with a scraper, and a buoyancy tank secured to said launchway and tending to regulate the action of said scraper." There is no scraper on the defendant's apparatus. If this claim could be read on the sheathed portion of the rear end of the defendant's launchway, then on the prior art it would be void, and further to allow the plaintiff to so broaden his claim would be to give him what was rejected in the Patent Office and acquiesced in by him when in his argument he said:

"Further, however, none of the patents cited show a launchway provided with a scraper. Moreover, in those patents which show buoyancy devices, it is believed that such devices are provided merely to lighten the load of the submerged parts rather than to affect the action of the auxiliary device at the submerged extremity of the launchway."

It thus clearly appears that the scraper of the plaintiff's patent was an auxiliary device, not a smoothed sheathed undersurface of the launchway.

The trailer, as I have herein before described it, is not a scraper, nor does it perform the function of the scraper as described in the plaintiff's patent in suit, its weight is appreciably less than the sheathed portion of the launchway which preceded it in the laying of the pipe, and when assembled with the launchway, the underside of the crossbars of the forward half of the trailer, and the sheathed rear half of the trailer are all substantially on the same horizontal plane, and therefore it would be impossible, in my opinion, for the trailer to perform the function of a scraper as defined in the patent in suit.

Plaintiff made much of the fact that the forward side of the crossbar where the forward end of the sheathing commenced was at a small angle, but in my opinion that does not constitute a scraper nor make it possible for the trailer to perform the function of a scraper as described in the specification of the patent in suit.

The scraper shown in the drawings of the patent in suit, and on the blueprint which the plaintiff showed to Mr. Flynn in September, 1913, were in the nature of plows.

Claim 8 is therefore not infringed.

Claim 9 defines as one of its material elements "a plurality of spaced cushioning connections between said support and said launchway to substantially free the latter from vibrations of the former caused by water fluctuations." The spaced cushioning connections of the patent in suit must comprise the connections between the scow and the launchway at its forward end and the rear sling 21, both of which are made up with springs.

There are no springs on the defendant's apparatus, and if it be contended that the connections between the SCOW and the launchway, all of which are of wire rope, are spaced cushioning connections, then the claim would be void for anticipation by the Chelsea creek apparatus, which had wire rope connections between the scow and launchway.

Claim 9 is therefore not infringed.

I am unable to agree with the defendant that the patent in suit is not valid. As I have construed the same, no claim can be held void for anticipation because the elements of no one claim are all found in any former patent. As I have herein before found, it is entitled only to a limited construction. Many of the elements are old and well-known, but I have not found them all disclosed in any former patent, and invention may consist in combining old and well-known elements and securing a new and useful result, or an old result in a more facile, economical, and efficient way. Minneapolis, St. P. & S. S. M. Ry. Co. v. Barnett & Rec. Co., 257 F. 302, 168 C. C. A. 386; Imhaeuser v. Buerk, 101 U. S. 647, 25 L. Ed. 945; J. L. Owens Co. v. Twin City Separator Co., 168 F. 259, 93 C. C. A. 561. The use of springs for certain purposes was well known, but their use as disclosed in the patent in suit seems to me to have represented more than mere mechanical skill and to have constituted invention, although it did not constitute a large addition to the art. And the same may be said of the plow, unnaturally described as a "scraper," and the buoyancy tank by which the effect of the

scraper could be regulated. In my opinion the patent is valid, but has not been infringed by the defendant.

A decree may be entered in favor of the defendant, dismissing the plaintiff's bill of complaint, with costs.

SUTTON V. PACIFIC S. S. CO.

On motions by defendant to set aside verdict and for new trial. Denied.

The plaintiff commenced an action in the state court through her guardian ad litem, a resident of Oregon, appointed by the state court of Washington, against the defendant, seeking damages for assault committed upon her in her stateroom by two negroes, employees of the defendant, while a passenger en route from Petersburg, Alaska, to Seattle, Wash., on defendant's ship, the Admi

(District Court, W. D. Washington, N. D. No- ral Evans. The defendant timely filed a vember 18, 1924.)

No. 8521.

1. Removal of causes

111-Jurisdiction of federal court, properly averred, continues until contrary is legally shown.

Where a petition for removal alleges the citizenship of plaintiff, showing the jurisdiction of the court, such jurisdiction continues until its want of jurisdiction is established to a legal certainty.

2. Removal of causes 112-Jurisdiction of federal court, properly shown by the pleadings, held not defeated by facts incidentally shown by the testimony.

petition for removal to this court, wherein was alleged jurisdictional amount in controversy; that at the commencement of the action plaintiff "was and still is" a citizen and resident of the state of Oregon and the defendant a citizen of the state of Maine; that at the time mentioned defendant was a common carrier in interstate commerce on the high seas and the navigable waters connected therewith, on a regular route and schedule from port to port between the state of Washington and Alaska; that the injury received by the plaintiff, if any, was received while the vessel was on the high seas, and that the cause of action, if any, arose under the maritime laws of the United States and is within the admiralty and maritime jurisdiction, and is cognizable only in a District Court of the United States. All due proceedings were taken and the cause regularly removed to this court. None of the allegations of the petition for re3. Removal of causes 112-Challenge to ju- moval were denied. No motion to remand risdiction held ineffectual.

Defendant, having alleged in a petition for removal that plaintiff was a citizen of Oregon, which was not denied, cannot defeat the jurisdiction of the court, after verdict, on the as

sumption that plaintiff, being an Indian, is not

a citizen, nor because of an incidental statement

in her testimony that her "home" is in Alaska, where her mother resides, from which place she had been absent for seven years, except for two visits there.

Where an action at law, brought in a state court on a maritime contract, was removed by defendant, which invoked the admiralty jurisdiction, and which removal was not resisted, and without any motion to require an election, or any objection, the cause was tried to a jury,

as permitted in admiralty causes by Rev. St. § 566 (Comp. St. § 1583), it is too late for defendant to challenge the jurisdiction of the court, which had original jurisdiction in admiralty or jurisdiction on removal at common law.

4. Shipping 166(2)-Action for assault of passenger held not barred by limitation printed on ticket, requiring notice of claim within 10 days.

Where plaintiff, a minor, was assaulted while a passenger on defendant's ship, and on arrival in port was taken to defendant's offices, where she was fully interrogated, an action for the assault was not barred by failure to give formal notice of the claim within 10 days, as required by a limitation printed in small type on the back of her ticket, which was not called to her attention.

At Law. Action by Margaret Sutton, by Harwood Hall, her guardian ad litem, against the Pacific Steamship Company.

was made.

The cause was placed at issue by answer of the defendant, in which the corporate entity and business status of the defendant and the relation of passenger and carrier between the plaintiff and the defendant are admitted. The assault, on information and belief, is denied. The damages claimed are specifically denied. It is affirmatively stated that, if the employees charged had carnal knowledge of the plaintiff, such acts were had at her solicitation and request, acquiescence, consent, and approval. further affirmative defense is that, if the plaintiff contracted a venereal disease as claimed, it was the result of her own voluntary and deliberate action, consent, and acquiescence. The affirmative matters are denied in the reply. The cause was duly submitted to a jury. A verdict was returned in favor of the plaintiff.

A

The defendant files a motion to vacate and set aside the verdict and judgment and for a new trial. It is stated in the motion that, it appearing from the evidence that the

3 F.(2d) 72

plaintiff was an Indian girl, without citizenship, a minor temporarily attending school at Chemawa, Or., whose residence was Petersburg, Alaska; that there was no diversity of citizenship, and, in the event of the denial of this motion, a new trial is asked on the ground of the insufficiency of the evidence to justify the verdict, and error in law occurring at the trial and excepted to by the defendant.

Upon the trial, at the commencement of plaintiff's examination, she testified that her home is in Alaska, her father is dead, and her mother living at Petersburg, Alaska; that she has been living at the Indian school for seven years. She visited her mother in Alaska in 1917, and again in 1923, at the time of the assault. There was no challenge to the court's jurisdiction until after the verdict.

Egan & Moriarty and Chas. P. Moriarty, all of Seattle, Wash., and Poe, Falknor, Falknor & Emory and De Wolfe Emory, all of Seattle, Wash., for plaintiff.

Grosscup & Morrow, of Seattle, Wash., C. A. Wallace, of Tacoma, Wash., and John Ambler, of Seattle, Wash., for defendant.

NETERER, District Judge (after stating the facts as above). [1, 2] The petition on removal prima facie fixes the jurisdiction in this court, which continues until it is established to a "legal certainty" that the court is without jurisdiction. Hill v. Walker, 167 F. 241, 92 C. C. A. 633, certiorari denied 214 U. S. 517, 29 S. Ct. 698, 53 L. Ed. 1064, followed by the Circuit Court of Appeals of this circuit in Big Sespe Oil Co. v. Cochran, 276 F. 216. The above is the substance of the record as to the citizenship of the plaintiff. The petition on removal asserts the plaintiff to be a citizen of the state of Oregon. This is not denied. The citizenship was not an issuable fact, and the testimony was not directed to an issuable fact in the case. The Supreme Court, in Hartog v. Memory, 116 U. S. 588, at page 590, 6 S. Ct. 521, 522 (29 L. Ed. 725), says:

"Neither party has the right, however, without pleading at the proper time and in the proper way, to introduce evidence the only purpose of which is to make out a case for dismissal. The parties cannot call on the court to go behind the averments of citizenship in the record, except by a plea to the jurisdiction or some other appropriate form of proceeding. The case is not to be tried by the parties as if there was a plea to the jurisdiction, when no such plea has

been filed. The evidence must be directed to the issues, and it is only when facts material to the issues show there is no jurisdiction that the court can dismiss the case upon the motion of either party."

The defendant may not, upon the allegation of citizenship in Oregon, overcome this allegation by the assumption that the plaintiff, being an Indian, is not a citizen and has not severed her tribal relations, nor by the statement that her home is in Alaska overcome the positive assertion under oath in the petition for removal. Many persons, the writer included, invariably refer to the residence of father and mother as home after many years' residence and citizenship elsewhere. It was not even sought by crossexamination to fix citizenship in Alaska to a certainty, or to show that tribal relations had not been severed.

[3] Another question is disclosed by the record. The contract for transportation, the basis of this action, is an admiralty contract (Benedict on Admiralty, §8 201; Hughes on Admiralty, § 102; Austro-American S. S. Co. v. Thomas, 248 F. 231, 160 C. C. A. 309, L. R. A. 1918D, 873; The Moses Taylor, 71 U. S. [4 Wall.] 411, 18 L. Ed. 397; Atl. Trans Co. v. Imbrovek, 234 U. S. 52, 34 S. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. [N. S.] 1157), and an action in personam may be maintained (Leathers v. Blessing, 105 U. S. 626, 26 L. Ed. 1192), and the issue of fact is triable by a jury (section 566, R. S. [Comp. St. § 1533]). The complaint states a cause of action at common law, as well as in admiralty. This court has common-law and admiralty jurisdiction. Jurisdiction is power to hear and determine a cause. Grignon v. Astor, 43 U. S. (2 How.) 319, 11 L. Ed. 283. The Fair v. Kohler Die Co., 228 U. S. 22, 33 S. Ct. 410, 57 L. Ed. 716. The three essentials to jurisdiction: (a) Cognizance of class of case to be adjudicated; (b) the presence of the proper parties; (c) the question to be decided within the issueS. 254, 11 S. Ct. 773, 35 L. Ed. 464. The are present. Reynolds v. Stockton, 140 U. admiralty jurisdiction of this court was invoked by the defendant. It was not resisted by the plaintiff. This court as an admiralty court confessedly had jurisdiction of the subject-matter. The parties voluntarily appeared before this court and prayed adjudication of the tendered issue. The issue was submitted to a jury (section 566, supra), and the verdict returned. No motion was made at any time to require the plaintiff to elect between common law and admiralty. While trial by jury is a right

« ÀÌÀü°è¼Ó »