Syllabus,

where a stockholder in a corporation seeks to enforce, in equity, a right of the corporation. Much might be said as to the defects of this bill, and we only allude to the point, lest it might be inferred we regard the bill as properly framed, under those rules. Decree affirmed.

MR. JUSTICE GRAY took no part in the decision of this case.

GARDNER & Others v. HERZ & Another.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

Argued April 19, 1886.-Decided May 10, 1886.

Claim 2 of reissued letters patent No. 9094, granted to William Gardner, Oliver L. Gardner and Jane E. Gardner, February 24, 1880, for an improvement in chair-seats, (the original patent, No. 127,045, having been granted to George Gardner and Gardner & Gardner, as assignees of George Gardner, as inventor, May 21, 1872, and having been reissued as No. 7203, to George Gardner, William Gardner and Jane E. Gardner, July 4, 1876,) namely, "2. A chair-seat made of lamina of wood glued together, with the grains in one layer crossing those of the next, concave on the upper surface, convex on the lower surface, and perforated, as a new article of manufacture, substantially as set forth," does not claim any patentable invention.

A patent cannot be taken out for an article, old in purpose and shape and mode of use, when made for the first time out of an existing material, and with accompaniments before applied to such an article, merely because the idea has occurred that it would be a good thing to make the article out of that particular old material.

The suggestion in the second reissue, that "the seat is adapted to be secured to any chair-frame, as it is easily cut and fitted to the same," is not found in the original patent, or in the first reissue, and is new matter, so far as anything in it can be invoked to confer patentability on the article. The question as to whether the thing patented amounts to a patentable invention, may be raised by a defendant in a suit for infringement, independently of any statutory permission so to do.

Under the Constitution and the statute, a thing to be patentable, must not only be new and useful, but it must amount to an invention or discovery.

Opinion of the Court.

In equity. The case is stated in the opinion of the court.

Mr. Edward N. Dickerson for appellants.

Mr. James P. Foster for appellees.

MR. JUSTICE BLATCHFORD delivered the opinion of the court. This is a suit in equity, brought in the Circuit Court of the United States for the Southern District of New York, by William Gardner, Oliver L. Gardner and Jane E. Gardner against Martin Herz and John K. Mayo, for the infringement of reissued letters patent No. 9094, granted to the plaintiffs, February 24, 1880, for an improvement in chair-seats, (the original patent, No. 127,045, having been granted to George Gardner and Gardner & Gardner, as assignees of George Gardner, as inventor, May 21, 1872, and having been reissued as No. 7203, to George Gardner, William Gardner and Jane E. Gardner, July 4, 1876). The application for the first reissue was filed April 8, 1876, and that for the second October 31, 1879. The drawings annexed to the original patent and each of the reissues were substantially the same. Those of the second reissue were as follows:

The specification and claim of the original patent were in these words:

Figure one is a plan view, partly in section, the section showing the middle layer of veneer. Fig. 2 is a longitudinal section, taken on the line x x of Fig. 1. Similar letters of reference refer to like parts in both of the figures.

"This invention relates to chair-seats; and it consists in constructing a seat out of veneers of wood, with the grain running across each other and glued together.

"I have shown, in the drawing accompanying this specification, three layers of veneers, they being represented by the letters A B C. The grain of veneer A crosses that of veneer B, as shown in section in Fig. 1, and the grain of veneer B crosses that of veneer C, as seen in Fig. 2. Veneers when thus ar

Opinion of the Court.

ranged, that is to say, with the grain running in diverse directions, will make a seat which, for economy and durability, will be found to be a very useful improvement. The seats may be left solid, or perforated after some design agreeable to the fancy of the one having them made. A slightly concave configuration may be given to the seat, as shown in Fig. 2.

"Seats thus made do not cost as much as those that are made of cane, and are better by far in point of durability. "The veneers rest upon a shoulder, f, of a frame, F, which

surrounds them.

"Having thus described my invention, what I claim and desire to secure by letters-patent is—

"As a new article of manufacture, a chair-seat constructed of veneers of wood with the grain running crosswise of each other and glued together, all substantially as set forth, and for the purpose specified."

The specification and claims of the first reissue were in these words:

"Figure 1 is a plan view, partly in section, of my improved seat, the section showing the middle layer of veneer. Fig. 2 is a view of my improved seat for chairs, settees, &c., this figure showing a longitudinal section of the seat, taken on the line xx of Fig. 1. Similar letters of reference refer to like parts in both of the figures.

"This invention relates to bottoms for seats, and consists in constructing the said seats of two or more veneers of wood, with the grains crossing each other, the said veneers of wood being glued together by an adhesive substance.

"I have shown in the drawing accompanying this specification three layers of veneer, applied to the construction of and forming a seat for chairs. These layers of veneer are represented by the letters A, B and C. The grain of veneer A crosses that of veneer B, as shown in section in Fig. 1, and the grain of veneer B crosses that of veneer C, as seen in Fig. 2. Veneers, when thus arranged, that is to say, with the grains crossing each other, or diversified, will make a seat which, for durability and economy, will be found to be a very useful improvement. I make the seat either solid, or perforated as shown

Opinion of the Court.

in Fig. 1. A slight concave configuration may be given to the

seat.

"The perforated seats are made by boring a round hole of any design desired; and they may be bored either by hand or by machinery adapted for the purpose. The perforated seats are desirable, as they are ventilated and ornamental.

"I have especially shown and described my improved seat for chairs. The veneers of which this seat is constructed rest upon a shoulder, f, of a frame, F, which surrounds them, as shown in Fig. 2 of the drawing. The veneers, with the grains crossed or diversified and glued together, become homogeneous, thus making a solid piece of wood, from which I make the bottom of the seat, which, when perforated and varnished, is ready for the market.

"Veneers, when thus arranged, that is to say, with the grain running crosswise or in diverse directions, will make a bottom for a seat which, for economy and durability, will be found to be a very useful improvement. The bottoms thus made may be left solid, or perforated after some design agreeable to the fancy of the one having them made. A slightly concave configuration may be given to the bottom, as shown in Fig. 2, which greatly adds to the comfort of the party using it. The bottom thus made is secured to a frame, F, which surrounds it, and through the latter is secured to the seat-frame, K.

"Having thus described my invention, what I claim is— "1. As a new article of manufacture, a bottom for a seat, constructed of two or more veneers or thin layers of wood, with the grain of the one layer crossing that of the other, and the whole secured together with an adhesive substance, substantially as set forth.

2. As a new article of manufacture, a bottom for a seatframe, constructed of two or more veneers or thin layers of wood, with the grain of the one layer crossing that of the other, said layers being secured together by an adhesive substance, and having perforations formed therein for the purpose of ventilation or ornamentation, substantially as set forth.

"3. The combination of a seat-bottom, constructed of two or