edged serrations, B, and handles, C, C, placed as shown, all substantially as specified."

It certainly does not require a very close criticism of the claim of the reissued patent to see that it is made to cover a device not covered by the original patent. The claim of the original patent certainly required that the points of the knife-edged serrations or teeth should incline downward, towards the point of the blade, and that the short or lower side of these teeth should form a slightly acute angle with the line of the blade. This form of constructing the teeth, and their relation to the line of the blade, is so clearly indicated by the drawings and model as to leave no doubt as to how the patentee intended to shape his blade, and the teeth upon the blade. The original claim also required the handles to be "placed as shown," and undoubtedly, under this requirement, the patentee was restricted to a knife with the handles placed as shown in his drawing and model, and it covered no other kind of knife; while the claim of the reissued patent allows the blade to be provided with "suitable handles," and simply requires that the curved edge shall be provided with serrations, but wholly omits any specific directions as to how the handles shall be placed, and any direction as to the shape of the serrations, or the direction of their points. There is no room for doubt that the claim of the reissued patent would cover a different knife from that covered by the claim of the original. Under the original patent only a knife with serrations of the particular shape shown and described was protected, while the reissued patent allows any shaped serrations, if they are only integral with the blade, that is formed by cutting or notching into the blade.

It was argued with much ingenuity upon the hearing that the original patent covered a knife like that manufactured by the defendant, because the patentee says: "My invention consists of a long, flat piece of steel, in the shape of a sword, excepting the handle, with little knives on the edge, from the handles to the point, and two handles standing out on one side." But this general description of the nature of his invention is not the description of the invention itself, as contained in the specifications further on, and which not only instruct the public how to make a knife like that invented by the patentee, but also give specific directions as to certain characteristics which the knife must possess, among which is that of requiring the points of the teeth to point towards the point of the blade; and the specific reason is given why these teeth should have this inclination. If only the original patent was now in force, it seems to me there could be no doubt that the defendants could manufacture and sell their hay-knife, with the notched or scalloped edge, with impunity, as the defendants' handles are not placed as shown in the original patent, and the points of the teeth do not incline towards the point of the blade. These limitations upon his invention in the original patent may have been uncalled for by the state of the art at the

time the original patent was issued, and the inventor may have unnecessarily limited the scope of his device by his description; but the proof shows that he was content with his patent as originally issued for upwards of 11 years, and only obtained this reissue after the defendants' knife had been brought upon the market, and become a dangerous competitor.

If the essential feature of Weymouth's invention was the notched. blade, and by a reissue complainant could cover a blade with teeth or serrations of any shape, he might also, with equal propriety, have covered any shaped blade, and could yet reissue so as to cover a straight blade. It therefore seems to me that this reissue comes clearly within the late cases in the supreme court heiding that a patent cannot be reissued with expanded claims, unless it is done within two years. from the date of the original patent. Mahn v. Harwood, 112 U. S. 354; S. C. 5 Sup. Ct. Rep. 174; Union Metallic Cartridge Co. v. United States Cartridge Co., 112 U. S. 624; S. C. 5 Sup. Ct. Rep. 475; Torrent Arms Lumber Co. v. Rodgers, 112 U. S. 659; S. C. 5 Sup. Ct. Rep. 501.

Without examining, then, or definitely passing upon the question of novelty raised in the pleadings and proof, it is sufficient to say that I feel compelled, under the authorities and testimony in the case, to hold this reissue void, upon the ground that by it the original patent has been unduly expanded and enlarged. The bill is dismissed for want of equity.

HAINES V. PECK and another:1

(Circuit Court, S. D. New York. February 18, 1886.)

1. PATENTS FOR INVENTIONS-VOID REISSUE.

Reissued letters patent No. 4,361, of May 2, 1871, to John P. Haines, for improvement in oil-cups, are void because for a different invention from the original, No. 92,820, of July 20, 1869.

2. SAME-EXCUSE FOR DELAY IN APPLYING FOR REISSUE.

The excuse that patentee was ignorant of the laws pertaining to letters patent is wholly insufficient.

On Demurrer.

Frederic H. Betts, for complainant.

Charles E. Mitchell and Morris W. Seymour, for defendants. COXE, J. The complainant is the inventor of an improvement in oil-cups, for which letters patent No. 92,820 were granted July 20, 1869, and reissued, No. 4,361, May 2, 1871, 21 months thereafter. The application for the reissue was filed in January, 1871. The de

1 Reported by Charles C. Linthicum, Esq., of the Chicago bar.

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fendants demur to the bill on the following grounds: First, departure from the original invention; second, unlawful expansion of the claims; third, want of novelty, in view of prior devices, of which the court will take judicial knowledge.

In the original the inventor declares:

"The invention consists in providing the shank of the nozzle with a lefthand screw-thread, by which it is secured to the body of the can, and with a right-hand screw-thread to receive the nozzle-covering cap, so that when the cap is removed, there will be no danger of also unscrewing the nozzle."

These words are not found in the reissue. On the contrary, he there asserts that his invention consists:

"First, in an article made up of three parts never before combined in an oil-can. It consists, secondly, in a peculiar construction of the body to render it smooth, pliable, and not irksome to the person of the party carrying it."

The claims of the original and reissue are here placed side by side. The italics in each show the matter not found in the other:

ORIGINAL.

"As a new article of manufacture, the pocket oil-can, when the shank, a, of its nozzle, B, is provided with the left-hand screw-thread fitting into a corresponding female screw-thread in the mouth of the body, A, and with a right-hand screw-thread, b, adapted to receive the cap, C, in which a similar female screw-thread is formed, all operating as described, for the purpose specified."

REISSUE.

"1. As an article of manufacture, a pocket oil-can, formed of a round body, A, nozzle, B, and cap, C, combined as described.

"2. In an oil-can adapted to be carried in the pocket, a body, A, formed of thin elastic metal rounded into an oval form, and having its sides held apart by an inner spring, as specified."

It will be observed that in the original the claim is for an oil-can provided with a nozzle, having a left-hand screw-thread, and a cover or cap having a right-hand screw-thread, so that the unscrewing of the cap will not tend to remove the nozzle also. In other words, the original invention was confined, both in the description and the claim, to the reverse screw-threads of the nozzle and the cap. The original claimed the screw-threads and nothing else. The reissue claims everything but the screw-threads.

No one would infringe the original who did not use the right and left hand screw-threads. On the contrary, any one using a roundbodied pocket oil-can, with a nozzle and a cap, would infringe the first claim of the reissue, no matter how the nozzle was fastened to the can, or the cap to the nozzle. A can that would infringe the original would not infringe the reissue, and a can that would infringe the reissue would not infringe the original. They relate to essentially different devices. The original is as silent as to the inner spring, the thin elastic metal, the oval form, and the combination of the round body, the nozzle, and the cap, as the reissue is as to the reversed screw-threads. In Russell v. Dodge, 93 U. S. 460, the court say:

“And, as a reissue could only be granted for the same invention embraced by the original patent, the specification could not be substantially changed, either by the addition of new matter or the omission of important particulars, so as to change the scope of the invention as originally claimed."

The specification here is open to both criticisms,-new matter has been added and important particulars omitted. If the inventor had entertained the same idea of the scope and character of his invention in July, 1869, that he did in May, 1871, it is hardly possible that he could have been so unfortunate in making himself understood. No man of ordinary intelligence would retain for 18 months a patent which describes and claims a device bearing hardly a trace of resemblance to his invention. There is no escape from the conclusion that the three-part oil-can was an after-thought; that the object of the patentee in 1871 was to obtain a patent for a different invention from the one described and claimed by him in 1869.

Regarding the second ground of demurrer it may be said that the moment the patentee opened his patent he saw that, both in the description and the claim, he had limited his invention to the screwthreads. It was then his duty to act. It was not a case of an involved or intricate description. If there was a mistake, the veriest tyro in invention must have perceived it. The excuse advanced by the complainant, that he did not discover his error because he was ignorant of the laws pertaining to letters patent, is wholly insufficient. The case cannot be distinguished from Wollensak v. Reiher, 115 U. S. 96, S. C. 5 Sup. Ct. Rep. 1137, and the other decisions of the supreme court since January, 1882.

The demurrer is sustained.

KNAPP V. BENEDICT and another.1

(Circuit Court, D. Connecticut. February 12, 1886.)

1. PATENTS FOR INVENTIONS-INFRINGEMENT.

To a bill for infringement of letters patent No. 189,233, of April 3, 1877, to Henry F. Knapp, for means for relieving stranded vessels, the only defense was non-infringement. The defendant had used the same methods for relieying a vessel, which had been in frequent use since 1860 for removing sandy obstructions, and therefore held that he did not infringe.

2. SAME JUDICIAL NOTICE.

The court is permitted to avail itself of common knowledge in regard to matters of science, (Brown v. Piper, 91 U. S. 37,) and by that knowledge to define the scope of a patent.

1 Reported by Charles C. Linthicum, Esq., of the Chicago bar.

SHIPMAN, J. This is a bill in equity to restrain the alleged infringement of letters patent No. 189,233, granted to the complainant, April 3, 1877, for an improvement in means for relieving stranded vessels. The only defense which is set up in the answer is non-infringement. The invention is thus described in the specification of the patent: "This invention consists in certain novel means of manipulating a stranded vessel, so that she may be relieved with facility; and consists in introducing within her hold one or more main tubes, which are tapped at intervals by small pipes, that are made to pass out through small apertures in the bottom of the vessel on either or both sides of the keel, and are fitted air or water tight for the purpose of forcing water through the entire arrangement of pipes, so as to soften the sand, as well as to lubricate the contact or friction of the sand or mud against the outside skin of the vessel, and thus enable her to move more readily by means of warping-lines. As vessels that run ashore on sandy coasts are rapidly banked up' with sand by reason of the peculiar action of the sea, it is an important feature of this invention that such banking up can be largely avoided, as well as reduced, by the means herein described; also the running action of the sea will, at times, cut away the sand, etc, from under a portion of a stranded vessel, leaving her to rest on an uneven foundation, which causes her to not only strain badly, but to frequently be the cause of her breaking to pieces. This result I propose to avoid by softening and washing or blowing away the sand from under that part of the vessel that is not already cut away by the action of the sea, so as to secure an even foundation and bottom for her along her whole length. Again, vessels that go ashore on sandy beaches most frequently take a position broadside to the sea, and, as their flotation is facilitated by getting them end to the sea, this may be accomplished by ejecting the fluid into the sand, under the starboard side forward, and port side aft, or vice versa, according to the circumstances of her position, all in order that she may be gradually slewed around, as desired."

6

The first claim is as follows:

"(1) The process herein described of relieving stranded vessels, by causing them to float in a fluid or semi-fluid, by means of forcing continuous streams of fluid, immediately around its bottom, into the sand or mud in which the vessel is embedded or lies, for the purpose of washing away and softening the sand, while at the same time a lateral movement or strain is imparted to the vessel by means of warping-lines or equivalent means, whereby it may be moved into deeper water, substantially as and for the purpose set forth."

On January 9, 1884, the Robert Morgan, a new schooner of 552 tons, which was commanded by the defendant Crossley, went ashore, broadside, on the beach at Atlantic City. A contract was made with a wrecking company to put the vessel afloat, and operations to that end commenced about the middle of February, which, prior to May 24th, resulted in slewing the schooner around with her stern towards the ocean. The captain thought that there was wreckage or some hard substance under the vessel which prevented her progress. He had seen on the beach at Atlantic City, the sinking of piling or posts by the aid of a stream of water forced into the sand at the bottom of the post, and had also been shown by the managers of the waterworks company the effect of a stream of water upon sand, and he thought that the obstruction could be removed or sunk in the sand.