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held not to involve invention. In Manufacturing Co. v. Holtzer, 15 C. C. A. 63, 67 Fed. 907, the circuit court of appeals for the First circuit held that the right to improve on prior devices by making solid castings in lieu of attached parts is so common and universal in the arts as to cast a heavy burden upon any one claiming patentability for such an improvement to show special reasons in support of his claim. The mere fact that an article made in one piece instead of in two mechanically attached is more durable, and the cost of construction cheapened, is not in itself enough to constitute invention. That result the court in the last case cited said was "the ordinary consequence of dispensing with joints by casting solid, well known in all the arts.”

The conclusion from all the cases must be that the mere making in one piece of a device formerly made in two parts mechanically attached is not invention. The exception to the general rule must depend upon special facts indicating the presence of the inventive faculty in a degree greater than the mere mechanical knowledge exhibited by so simple an improvement. Much stress has been laid upon the alleged large use and sale of this improved socket. The evidence upon this point is not very forceful in respect to this particular invention. The sales were chiefly of a structure which included track plate and socket, or these in combination with a caster, the track plate and caster being the subject of other patents; and it is not made plain that any more of the alleged success of the sale of the track plate socket was due to the socket than to the track plate. However this may be, we do not think the question of patentability doubtful, and it is only when the patentability of a device is doubtful that the general use of the patented article may turn the scale. McClain v. Ortmayer, 141 U. S. 419, 12 Sup. Ct. 76, 35 L. Ed. 800; Duer v. Lock Co., 149 U. S. 216, 13 Sup. Ct. 850, 37 L. Ed. 707

We find it unnecessary to consider the limitations upon this patent or the question of infringement. We are satisfied that the patent, for the reasons stated, is invalid, and the decree upholding it must be reversed.

2. The Berkey & Fox patent also relates to furniture casters. The inventor had several objects in view, but, so far as material to this suit, the object was “to provide an improved track plate for the anti-friction wheels, which plate serves also as a furniture protector,” and “to secure the track plate to the furniture without the use of screws or nails.” The only question here involved relates to the alleged infringement of this "track plate" of the patent. This track plate and its uses are thus described by the inventor as follows:

"The track plate, T, may be cast in the form shown or cut from sheet metal and then formed up. In the latter case it would not have the shoulder shown at n in the Fig. 1. The teeth on the outer and upper edge attach the plate to the wood, prevent the latter from splitting, and also insist in holdIng the plate and socket together in position on the furniture. The socket, C. e'. has a flange, F, on its lower end, which, when the socket is driven into position, combines with the teeth to hold the track plate firmly against the wood. This track plate is especially valuable when used on furniture requiring a caster block, as a portion of the teeth engage the frame of the furniture and the remainder engage the block, holding it securely in place. When used with the common caster, without the anti-friction wheels, the track plate is still of service in assisting to hold the socket more firmly in the wood, and in preventing the latter from splitting. On account of the peculiarly curved form of the track plate, as shown, it serves as a shoe, permitting the easy sliding of the furniture when the caster is temporarily removed, preventing the flange, F, from catching on the floor, and avoiding the necessity of chamfering the edges of the bottom of the leg."

51 C.C.A.-8

We insert, for the better understanding, Figs. 1, 2, and 4 from the drawing:

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Fig. I is a vertical sectional view of the caster when inserted, taken on the line X–Y of Fig. 2. Fig. 2 is a front view of the caster, track plate, and socket attached together and removed from the furniture. The track plate in question is shown at T in both figures, and no point in either figure is here involved which is shown below T. Fig. 4 is a perspective view of one part of the socket showing the flange, F, referred to in the claims involved here. There are six claims in the patent. Those here involved are 3, 4, 5, and 6, which are as follows:

"(3) In a furniture caster, the combination of a socket having a flange and a track plate with its central portion sufficiently depressed to receive the entire flange above the lowest surface of the plate when in position, substantially as and for the purpose described. (4) In a furniture caster, a track plate having the outer portion of its lower surface of the annular conrex form, ind central portion of the depressed form, shown and described. (5) In a furniture caster, the combinati n of a track plate and a socket having a flange adapted to engage the said plate and hold the same onto the furniture, substantially as described. (6) In a furniture caster, the combination of the track plate, T, provided with teeth, t, t, and the socket, C, c', provided with flange, F, the flange adapted to hold the plate securely against the wood, and the teeth to prevent the wood from splitting, and to hold both more firmly, substantially as described.”

Many earlier patents for caster track plates and sockets have been put in evidence as anticipations. They undoubtedly operate to limit the claims of the Berkey & Fox device to a track plate of the peculiar curved form of the one described and shown. Thus limited, none of the earlier devices present either that form or the advantages pointed out by the patentees as a result of the form. The principle function of the track plate in question aside from its function as a track for the wheels of a caster, anti-friction or not, which. the inventor pointed out and claims as due to the “peculiar curved form of the track plate, as shown," is the fact that "it serves as a shoe," permitting the easy sliding of the furniture when the caster is temporarily removed, thus preventing injury to the floor, and also avoiding the necessity for chamfering the edges of the bottom of the leg. Another advantage claimed is that it is valuable when used on a caster block, “as a portion of the teeth engage the frame of the furniture and the remainder engage the block, holding it securely in place.” Though narrow, we think the patent sustainable.

The question of infringement presents peculiar difficulties. The defendants below made their track plate in two parts instead of one; in other words, they have cut the track plate of the patent in two equal halves. But when in use the two constitute the track plate of the patent “having the outer portion of its lower surface of the annular convex form, and the central portion of the depressed form shown and described" in the drawings and specifications of the patent. If these halves were intended to perform separately some new function, or, when united, were adapted to some useful purpose not attainable by the track plate when made integral, the change might avoid infringement. But this is not the case. Again, the track plate and socket of the infringing device, instead of being separate structures, are made in one piece, and the dividing line between what would otherwise be the flange of the socket must be arbitrarily located. By thus uniting the track plate and the socket it is claimed that infringement is avoided, inasmuch as the infringing device omits the flange, F, of the patent. By thus making in one piece the two parts of the patented device, no material change in form or function has been produced. The track plate itself constitutes a flange for the socket, so far as it was the function of the track plate to prevent the socket from being driven too far into the receptacle prepared for it in the leg of the furniture. By making the socket and track plate integral, the latter is held in attachment to the socket, an attachment maintained in the device of the patent by means of the flange of the socket. Neither the division of the track plate nor the uniting of the socket and track plate into one piece operate, when in use, to vary the "peculiar curved form” of the track plate of the patent, and the functions dependent on this form are precisely the shoe functions of the infringing device when the caster is removed. We are impressed with the belief that this division of one part and uniting of two others has been done solely for the purpose of escaping infringement. Narrow as the Berkey and Fox patent is, we cannot ignore the fact that, if such merely colorable modifications are to be sanctioned, the very essence of the patented device will have been appropriated. It is not broadly patentable to make in one part, without change of function, an article originally made in two or more mechanically attached. The converse of this is equally true. Infringement cannot ordinarily be escaped by merely cutting in two a device made in one piece, or by making integral an article formerly made in two. Bundy Mfg. Co. v. Detroit Time-Register Co., 36 C. C. A. 375, 94 Fed. 524. To escape infringement some special facts must appear to show that the change is not merely colorable.

The decree sustaining the validity of claims 3, 4, 5, and 6 of the Berkey & Fox patent, and finding that they have been infringed, is affirmed. The costs of this appeal and of the court below, so far as they have accrued, will be divided. The cause will be remanded for further proceedings in accord with opinion.

(113 Fed. 169.)

WEST INDIA & P. S. S. CO., Limited, v. WEIBEL.
(Circuit Court of Appeals, Fifth Circuit. January 7, 1902.)

No. 1,070.

The owners of a ship are liable for an injury to a carpenter, employed by a firm which had been hired to make repairs or changes in the interior of the ship to fit it for cargo, and who was sent on bcard to work during the night, and fell through a hatchway in a dark and unusual place, which had been negligently left open, without notification or

warning to those who were doing the work. In Error to the Circuit Court of the United States for the Eastern District of Louisiana.

This case was commenced in the circuit court on a petition, among other things, showing as follows: "Petitioner shows that he is a carpenter by trade, and was, at the date first mentioned below, employed as such by the firm of William J. Hannon & Co., a commercial firm doing business in the city of New Orleans, to do certain work on the steamship Nicaraguan, belonging to the West India & Pacific Steamship Company, Limited, a corporation organized under the laws of a foreign country, and having its domicile and residence in said foreign country (which said country your petitioner is informed, and so believes and charges, is the kingdom of Great Britain). Petitioner further shows that on or about the 1st day of May, 1900, between the hours of 12 o'clock midnight and 4 o'clock a. m., he was directed by the said William J. Hannon & Co., by their employés and foreman, under whose orders your petitioner was working, to go aboard said steamship, and, with others employed with him, to do certain carpenter work in the interior of said ship, which work was the work your petitioner was employed to do. Petitioner further shows that while he was at work in the interior of said ship it was the duty of said West India & Pacific Steamship Company, Limited, to provide sufficient light to enable him to do said work, and to have the hatches of said ship in that part where he was at work securely closed. Petitioner shows that said West India & Pacific Steamship Company, Limited, failed and neglected to do either of said things; that although there was a good electric plant aboard said ship, and that same had been running in the early part of the night, that same was shut down (although same was in good working order) before he was sent aboard said ship and put to work therein, and that the only light furnished him in the dark interior of said ship was a tallow candle. Petitioner further shows that the hatches on said ship were not closed, but were left open and uncovered, although same were not in use, especially what are known as the 'bread hatches,' which are situated in the side of the decks of the steamship Nicaraguan, which is a most unusual place for a hatch to be situated; all of which open hatches and absence of light your petitioner shows was due to the fault, laches, and negligence of the said West India & Pacific Steamship Company, Limited, its servants, officers, employés, and agents, whose duty it was to provide a safe place in which your petitioner could work, and sufficient light to enable him to move about in the interior of said ship, as his said work might require. But your petitioner shows that the said West India & Pacific Steamship Company, Limited, its officers, servants, agents, and employés, required and compelled your petitioner to work in the interior of said ship without taking reasonable and necessary precautions for his safety by closing said hatches, and providing proper and sufficient lights, as it was their duty to do, although said steamship company, its officers, agents, employés, and servants, knew that your petitioner was working in said ship. Petitioner further shows that at the said time he was a minor, under the age of twenty-one years, and that he has only lately attained his majority. Petitioner further shows that about the hour of four o'clock a.m., while working in the interior of said ship, and in the absence of proper and sufficient light, your petitioner, without fault or negligence on his part, fell through one of said open 'bread hatches' in the side of the deck of said ship, into the hold of said ship, a distance of about twenty-two feet, falling upon the iron bottom and sides of said ship. Petitioner shows that by said fall he was greatly injured, bruised, and damaged, his collar bone was broken, his right arm was broken, his person badly bruised, injured, and broken in sundry places, and he suffered concussion of the brain.”

The answer of defendant shows, among other things, as follows: "That it denies all and singular the allegations therein contained, except such as may be hereinafter specially admitted. Further answering, this respondent admits that its steamship Nicaraguan was in the port of New Orleans on the 30th day of April, 1900; that this respondent had a contract with W. J. Hannon & Co. to fit said steamship Nicaraguan for grain; that under and by virtue of said contract said W. J. Hannon & Co. performed certain work in the hold of said steamship Nicaraguan; that the plaintiff herein was one of the employés of said W. J. Hannon & Co., and that he received certain injuries, of the extent of which respondent has no knowledge, while in the employ of W. J. Hannon & Co.; but this respondent avers that it is in no

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