Robert Cooper Grier

“ Now, the machine of Boyden has not one of the peculiar devices, or combination of devices, of the Wells machine, nor any substantial identity with it, unless by substantial identity is meant every machine which produces the same effect. These abstract phrases, 'substantial identity,' 'equivalent,' 'mode of operation,' &c., are often used in such a vague and equivocal manner, that they mystify and lead many to absurd conclusions, who will not distinguish between things that differ. ”

“ Now, after a patent has been declared to be valid, the specification without defect, and the claim for nothing more than the invention, after it has undergone examination for many years, and courts and juries have decided that the patent is not invalid, through inadvertency, accident, or mistake, the assignees come forward and make oath, that the inventor's original patent is 'unavailable' for some purpose unnecessary to be divulged. ”

“ The principle of a machine is properly defined to be 'its mode of operation,' or that peculiar combination of devices which distinguish it from other machines. A machine is not a principle or an idea. ”

“ Where an improvement is made upon a machine, the patentee can only claim the part, or combination of parts, which he has invented. It is otherwise where the invention is a process, strictly so speaking, in which the treatment of substances is entirely independent of the mechanical appliances. ”

“ The defendants infringe by using the combination patented, varied only by the substitution of a mechanical equivalent for one of the elements of the combination. The question respecting infringement is not whether the defendant's machine is like the patentee's or is different from the patentee's, because it may be greatly different, and the differences may also be patentable and patented; but the question is, whether or not the defendant's machine contains the invention of the patentee. ”

“ The result, which is matter of common knowledge and is proved, is, that bodies are formed with such rapidity, and of such quality, and out of such variety of stock, that the manufacture of hats has been revolutionized; that fur is now used for hats which could not before be used; that one machine forms from three hundred and fifty to four hundred hat-bodies per day, while twenty was a large day's work for a good workman by the old process of hand-bowing; that fur bats are made better and out of less material by the operation of a machine than they were by hand-bowing ”

“ Such inventions partake of the nature of discoveries, either found out by experiment or the result of a happy thought, which, when once expressed, is plain to all intelligent persons, who could point out at once many devices for making it effectual. Any one can perceive the difference of such a case from the invention of a labor-saving machine, which is a mere combination of certain mechanical devices to produce a desired manufacture in a cheaper or better manner. ”

“ In this case we have an attempt to convert an improved machine into an abstraction, a principle or mode of operation, or a still more vague and indefinite entity often resorted to in argument, an 'idea.' Those who use the latter term seem to have no fixed idea of what they mean by it. But it may be used as successfully to mystify a plain matter as the words used in the specification. ”

“ But it has been argued, that though not a colorable invasion of the patentee's claim, it is evasion of his patent, which is equally injurious. If so, it is 'damnum absque injuria.' Every man has a right to make an improvement in a machine, and evade a previous patent, provided he does not invade the rights of the patentee. ”

“ The great and peculiar characteristic of the Wells invention is a tunnel or chamber, constructed as described. Instead of the picker, he used a rotating brush to distribute the fur from the feed-aprons, and throw it forward into the chamber which conducted it to the cones. The hinged hood and flap were devices to distribute the material in unequal quantities, to accomplish the object of making the bat thicker in one part than another. This machine, although an improvement on its predecessors, was not automatic, although it professed to be such. ”

“ The patent to Williams, in 1833, was the first great step towards applying these natural forces to labor-saving machinery in the art of hat-making. He was the first to use the power of atmospheric pressure to deposit fur or fibrous materials on any surface. He used a carding machine to disintegrate the fur or fibres; a revolving fan to throw them on the cones; the hollow perforated cones or formers connected with devices for exhausting them; and the use of a hollow perforated cone to place over the bat, to retain it in position when removed from the exhaust. ”

“ Hat-bodies are manufactured out of fibres of fur or wool felted together. The fact that when the fibres of wool or fur are moistened and rubbed together, they would interweave spontaneously and form the fabric called felt, has been known from a remote antiquity. The process of felting is believed to have been anterior to the art of weaving. ”

“ The aperture of this trunk nearest to the cone had a hinged hood or deflector (s) at its upper extremity, which vibrated up and down and regulated the deposit of fibres on the cone, so as to make the brim of the hat-body thicker than the tip.
Wells's specification, in its important parts, was as follows; and it is important for the reader to observe not only what is described, but how far in the description Wells describes an improvement on a machine; in other words, a machine itself, or part of one; and how far something less concrete, as a mode of operation ”

“ The cone-box was connected by a rim with the lower box or conduit leading to this exhaust-box. The fur, as the reader will understand, had been previously disintegrated by the carding machine, and is thrown by a rotating fan (F) in such a way as to be deposited on the cones below. Williams's invention was the first attempt to make use of the principle of atmospheric pressure, or 'exhaustion,' to cause a deposit of fur or other fibrous material on perforated cones, cone-frames, or 'formers,' as these contrivances are indiscriminately called. ”

“ To secure lightness with the requisite strength calls for such a distribution of the material as will concentrate most of it where strength is most required.
Wells, from whom, as already mentioned, the complainant derived title, obtained a patent, April 25, 1846, for a machine for forming, on hollow perforated cones, fur hat-bodies, and for a process of removing the body from the cone after it had been so formed, in such a condition as to its texture that its fibres could be subsequently felted together to a proper degree by hand. ”

“ The fact that an alteration in a machine is patentable and patented as an improvement, does not prevent its being a mechanical equivalent, and the use of the machine an infringement. [10]
As to the reissued patent: The original patent of Wells sets forth the invention which is claimed in the machine reissue (No. 1087) , and justifies and sustains that reissue. ”

“ The Patent Bureau in this country is composed of men of scientific attainments, who examine the merits of every claimant of a patent, and decide whether in their opinion it attempts to claim a monopoly of things before known or invented. They are not expected, as formerly, to grant a patent without inquiring, to every applicant who is ready to pay the fees. ”

“ The bodies were then taken to the kettle, or battery, containing boiling water, where, by the workman's repeatedly immersing the body in hot water, and rubbing it on the shelf with
his hands for about the space of an hour, the fibres of fur were forced to interlock or felt. The operation is seen in figure 5. Under this process of 'sizing,' as it is called, the body shrinks to nearly one-third of its original superficial size, and greatly increases in thickness, compactness, and toughness. ”

“ In 1839-this date must be observed-a certain William Ponsford discovered, that when a mass of fur of fibrous material capable of felting is disintegrated, and deposited in a condition proper for felting, and is immersed for an instant in very hot water, that the hot water will, of itself, cause an incipient felting of the fibres, so that a continuous fabric of fur of the shape of the 'former' can be them removed from the 'former' and finished by the hand of the workman ”

“ The original patent to Wells purports to be for 'a new and useful improvement in the machine for making hat-bodies.' His specification recites that 'it had long been essayed to make hat-bodies by throwing the fibres of wool, &c., by a brush or picker on a perforated cone exhausted by a fan below, to carry and hold the fibres thereon ”

“ The immersion of the body, while between the perforated forms, in a solution of glue or starch, as described by Williams, was deemed necessary, in order to cause the fibres to adhere together after the body was removed from the influence of the exhausting apparatus. The fur fibres, by Williams's process, were so glued or stuck together that they could not be felted afterwards. ”

“ A fur hat-body is required to be made of uniform thickness in the direction of its circumference, and of varying thickness from brim to tip, thin at the tip and along the crown, and thick at the band and brim ”

“ The application for this reissue, as sworn to by one of the assignees, contains the following suggestion: 'That the aforesaid patent is not fully available to him, as assignee; that said error has arisen from inadvertence, accident, or mistake,' &c.
Previous to the Patent Act of 1836, which established a board or bureau composed of competent examiners, patents had frequently been adjudged invalid from the insufficiency of the specification ”

“ A workman in a foundry observed, in pumping water into a bucket, that the water entering at a tangent to the circle of the bucket, acquired a circular motion, diminishing when it approached the centre, where bits of straw and other lighter materials would be concentrated. ”

“ At other times the workman, while engaged in sizing the body, by continually brushing the body with a hand-brush, would brush a nap out of its surface. Hats so finished were called brush hats.↑ This plate is a copy of one annexed to Williams's patent.↑ A 'bat' is a hat-body in the process of formation.↑ Wells's reissue, No. ”

“ It will be obvious, from the foregoing, that the hood may be operated by hand instead of machinery, thus substituting the attention, skill, and cost of an operative for the positive regularity and cheapness of mechanical movements. ”

“ That Boyden's machine was no infringement of the reissued patent of Wells; and, if it was such infringement, the reissue itself would be void as claiming more than the original did.
3. That as to the patent for process (reissue No. 1086) the claim wanted originality; Ponsford's patent having been prior to it. ”