Piper v. Moon.

With this view of the claim, the invention covered by it, so far as preserving the frozen article is concerned (and the claim covers that by itself), is anticipated by what is proved in regard to the use of the process of preserving frozen ice-cream. Anterior to the patentee's invention, ice-cream, frozen, was preserved in a frozen state, in a close chamber, by means of a freezing mixture which had no contact with the atmosphere of the chamber. The frozen ice-cream was thus preserved in a frozen state for a length of time, in one instance, as is shown, twenty-four days, and it might have been preserved an indefinite length of time by renewing the freezing mixture. The freezing mixture surrounded the metallic vessel containing the frozen ice-cream, instead of being in pipes which ran through such vessel; but that made no difference in the process. Some of the frozen ice-cream was in contact with the metal interposed between it and the freezing mixture, as some of the fish, in the practice of the plaintiff's process, are in contact with the metal interposed between them and the freezing mixture. All the atmosphere there was in the vessel containing the frozen ice cream was dry and freezing. The frozen icecream was, in its frozen state, not a liquid, but a solid. It was no more a liquid than a frozen fish is a liquid. A fish, before being frozen, consists largely of watery particles. If it did not, it could not be frozen, for it is the watery particles in it that are frozen. What is frozen in the ice-cream, and what is frozen in the fish, is the same thing-the liquid parts. Those are proportionally greater in the unfrozen ice-cream than in the unfrozen fish. That is the only difference.

The specification of the patent, in describing the process claimed, describes the process previously used for preserving frozen ice-cream. All that the patentee has done, according to his claim, is to take the frozen ice-cream out of the vessel, and put into it a fish or other article, frozen or unfrozen. That is no patentable invention. If the process of preserving the frozen ice-cream had not existed previously, the use of such process, in the manner stated, would be within the claim of the patent, and would be an infringement of it. The prior use of such process must therefore be an anticipation of the claim of the patent, at least in a case like this.

The patentee may be the first person who has practically succeeded in introducing into the market, at all seasons, salmon as

Locomotive Engine Safety Truck Co. v. Erie Railway Co.

fresh as when first caught, and may thus have supplied a great desideratum, and have established a business that is commercially profitable. He may have invented something, in that connection, which is capable of being protected by a patent, and he may have described, in this specification, or shown in the model or drawings accompanying it, something which may be claimed, and well claimed, as an invention, and which may be secured to him by a reissue. But the difficulty with the present claim is that it is too broad, and that it covers nothing but a process, and that a process practiced before, substantially in the manner set forth in the specification.

For these reasons, the bill must be dismissed, with costs.

THE LOCOMOTIVE ENGINE SAFETY TRUCK COMPANY

vs.

THE ERIE RAILWAY COMPANY. IN EQUITY.

Letters patent for "improvement in trucks for locomotives," granted to Alba F. Smith, February 11, 1862, construed and sustained.

Smith's invention is for the use in, and the combination with, a locomotive engine of a swiveling pilot or leading truck, provided with pendent links, to allow the forward part of the engine to move laterally over the truck, when the truck and the driving-wheels are not together in a straight track, whereby the forward part of the engine can move onward, in a line tangent to a curve, while the axles of the drivingwheels are parallel, or nearly so, to the radial line of the curve, because the truck is made to swivel around the king-bolt, by the action of the rails on the flanges of the truck-wheels. The Bridges and Davenport patent shows a swinging bolster, in a truck

swiveling on a king-bolt, the body of the car being connected to the truck-frame by pendulous links, from which such body is hung, whereby a lateral motion of the truck is permitted, independently of the body of the car, the sidewise motion being checked by springs in the truck; but does not suggest the use of such a truck in any other structure than a car having one of such trucks at each end and two king-bolts. Although the precise construction of divergent links, as employed by Smith, is shown in the truck patented to Kipple and Bullock, Decem

Locomotive Engine Safety Truck Co. v. Erie Railway Co.

ber 20, 1859, and the mode of operation of that truck, per se, in a car having a like truck at its other end, is the same, for all the purposes of the truck itself, that it is in a structure which has driving-wheels at the other end, yet the moment the truck, swiveling on a king-bolt, is taken out of the other end of the structure, and driving-wheels take its place, the mode of operation of the structure, as a whole, becomes different from the mode of operation of the two swiveling trucks. In the Bissell locomotive-truck, the absence of free swiveling in the truck, around its center, prevents the action of the rails upon the flanges of the truck-wheels from regulating the position of the axles on a curve, while in Smith's arrangement the truck alone controls the position of the axles of the truck-wheels, and they assume their correct position upon any track.

The Smith arrangement of truck is not merely an equivalent for the Bissell arrangement of truck, because when the former is substituted for the latter, the resulting structure has a different mode of operation, and produces results which the other structure can not produce. There was a patentable novelty in the combination which Smith made, although the truck which he employed existed before.

The combination produces a new mode of operation and new results in the structure, as a whole, although the truck, as respects itself, operates in the same way as it did in a car with two trucks.

It was not apparent, without experiment, that the use of a swinging bolster swiveling-truck, in an engine, would relieve all the difficulties attendant upon the use of driving-wheels on curves.

Where the invention is entitled, in the patent, an “improvement in trucks for locomotives," this does not require that the claim should be one to an invention in respect to the truck per se. It is sufficient if the invention is an improvement in the use of trucks in locomotive engines. An infringement may be committed by making or using, or vending to others to be used. An allegation in the disjunctive would be bad pleading, and an allegation of making and using is proved by proof of using alone.

The allegation that the defendants have constructed and built, and are now using trucks for locomotives constructed in accordance with and containing and embodying the patented invention, does not imply that any of the structures which are used by the defendants were built by them, or that any of the structures which were built by them are used by them.

Where the thing patented was made in one district and used in another, and the bill prays for profits from both making and using, and for an injunction, plaintiff may recover profits resulting from either making or using within the jurisdiction of the court, and obtain an injunction against making, using, and vending within the same.

The act which provides that "all suits, not of a local nature, hereafter to

Locomotive Engine Safety Truck Co. v. Erie Railway Co.

be brought in the circuit and district courts of the United States, in a district in any state containing more than one district, against a single defendant, shall be brought in the district in which the defendant resides, has no application where the single defendant resides as fully in all districts in the state as in any one of them.

A corporation, if it can be said to reside at all, resides in all the districts of the state creating it.

(Before BLATCHFORD, J., Southern District of New York, December, 1872.)

FINAL hearing on pleadings and proofs.

Suit brought upon letters patent for "improvement in trucks for locomotives," granted Alba F. Smith, February 11, 1862.

Figure 1, in the above engraving, represents a vertical longitudinal section of complainant's truck, as shown in the letters patent. Figure 2 represents a transverse section of the same; d is the center cross-bearing plate or platform, made of two thicknesses of iron plate, riveted together, and embracing the upper bars of the frame c. At the end of said plate, e e are crossbars, beneath the said double-bearing plate d, to strengthen the rivets; f is a bolster, made of a flanged bar, through the center of which the king-bolt i passes. The king-bolt also goes through an elongated opening in the plates d, so as to allow of lateral

Locomotive Engine Safety Truck Co. v. Erie Railway Co.

motion to the truck beneath the bolster. The king-bolt also serves as a connection to hold the truck to the engine. The bolster Fis suspended from the side-pieces g g, of the frame, by means of pendent links o o, which links are shown in the engraving, No. 2, by dotted lines.

A further description of the structure and mode of operation will be found in the opinion of the court.

No. 3.

No. 4.

D

No. 5.

Figure 3 represents the Davenport & Bridges truck, as shown in their patent.

Figure 4 shows the arrangement for securing lateral motion, in the Levi Bissell patent.

Figure 5 represents the Kipple & Bullock truck, showing the arrangement of pendent links to permit lateral motion.