of the demurrer by counsel took a very wide range, but in my view, without adding any others, sufficient reasons have been assigned for dismissing the plaintiff's bill, with costs, and it is so ordered. PHILADELPHIA NOVELTY MANUF'G CO. v. WEEKS. (Circuit Court of Appeals, Second Circuit. April 19, 1894.) · 1. PATENTS-LIMITATION OF CLAIM-INFRINGEMENT-STAPLING MACHINES. 2. SAME-INVENTION. Altering the slots of the guide clip of a stapling machine so as to permit the staple driver to be inserted both crosswise and lengthwise, or so as to give sufficient room to drive a staple with a projecting eye, does not involve invention. 52 Fed. 816, affirmed. 3. SAME. The Heysinger patent, No. 274,941, for a stapling machine, is void for want of invention. 52 Fed. 816, affirmed. Appeal from the Circuit Court of the United States for the Southern District of New York. This was a suit by the Philadelphia Novelty Manufacturing Company against Albertus A. Weeks, for alleged infringement of letters patent No. 226,402, dated April 13, 1880, and No. 274,941, dated April 3, 1883, both issued to Isaac W. Heysinger, and relating to what are known as "stapling machines," being small tools for inserting and clinching wire staples near the edges of superimposed sheets of paper. The circuit court dismissed the bill (52 Fed. 816). Complainant appealed. Augustus B. Stoughton, for appellant. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. LACOMBE, Circuit Judge. The apparatus described consists of two separate tools. One of these is a staple driver, consisting, essentially, of a flat tube containing a flat blade movable therein, the open end of the tube receiving a staple, crown upward, which is ejected from the tube or staple case by a blow on the end of the blade or plunger, and thus the staple legs are inserted or driven through the mass of papers upon which the mouth of the staple case is superimposed. The other tool is a clinching base, which clips the paper between a slotted guide arm and a base containing a clinching cavity beneath the slot in the guide. The tools are to be used together; but the staple driver may obviously be used with any clinching base which will clinch the ends of the staples driven upon it, even though such base does not contain any distinguishing feature of complainant's structure. So, too, the clinching base of the patent may obviously be used with any form of staple driver which will drive the staples upon the clinching cavity, even though such staple driver differs widely from that described in the patent. The first claim covers the clinching base; the second covers the staple driver; the third covers both tools in combination. The judge of the circuit court found that defendant did not infringe. It is unnecessary to discuss at length the numerous patents put in evidence, or the minute details of varying construction which make up the state of the art. The field of invention was a very narrow one before Heysinger entered it, and whether he contributed. anything of patentable novelty is extremely doubtful. Be that as it may, it is manifest that his claims can be sustained, if at all, only for the specific structures which he described and claimed. As to the second claim, we concur with the circuit judge in the conclusion that defendant's staple driver more closely resembles an earlier patent to Brown (No. 218,277, August 5, 1879) than it does Heysinger's. The third claim of Heysinger's patent expressly incorporates, as one of the essentials of its combination, "a tubular external case, longitudinally grooved," and grooved, as the' reference to the drawing shows, throughout its entire length. When the patentee was referred by the patent office to Brown's patent, he sought to distinguish it from his device by showing that "Brown does not use any external groove at all, his tube being a closed one." And, to escape the reference, Heysinger expressly inserted in this third claim the statement above quoted as to the longitudinal groove. Defendant's driver, like Brown's, has no such groove, and it is difficult to understand upon what theory appellant now contends that such difference is immaterial. In fact, his brief does not contain any argument in support of such contention. The first claim of the 1880 patent is for: "A paper-filing clip, B D, having the recessed clinching block, J, and guide slot. L, or its equivalent, substantially as and for the purpose herein described." The specifications contain the following references to the clip: "Fig. 4 is a perspective view of the spring of the clip part; Fig. 5, a like view of the base of the clip; Fig. 6, the vibrating clamping and guide arm of the same; Fig. 7, a plan of the base of the clip from above.' "The device consists of two parts,-one, the clip or base part, which, as shown in Fig. 1, may be attached, singly or in pairs, to a baseboard." "The base part consists of a metallic base, Fig. 5, so cast or formed as to admit of the reception of the clamping arm, Fig. 6, from beneath, the pins, N. N, upon opposite sides of said clamping bar, thus engaging in sockets, P, P, which act as journal boxes; said clamping bar being held up to its place by the flat spring, E, which is afterwards slipped into its seat; the ends being supported by the shoulders, K, K; the center being free to sink beneath the heel, O, as the thumb lever, D, is depressed." The accompanying figures make this explanation intelligible: "The clamping arm, Fig. 6, consists of a thumb piece, D, clamp, L, and heel, O, the whole supported in position by the pins, N, N." "At its forward end, L, the clamp bar is slotted for the reception of the nose of the driver." "In front of this slot is the bifurcation, M (which may be a slot or a hole). The object of this is to embrace the sides of the pin, F (located at I in the base), and force the papers which may be placed in the clamping jaws down upon the same, so that they may be held from slipping while others are placed upon them. This pin may also, for special purposes, be dispensed with sometimes. Beneath the slot, L, when in place, is a raised part of the base, J, forming a block, upon which the slotted portion, L, of the clamping arm rests, and which, together with it, forms the jaws whereby the papers are held firmly together." "The clamping arms, Fig. 6, are so constructed that when the thumb lever is depressed the heel, O, will pass sufficiently far beneath the bearing, N, to hold the slotted portion, L, raised from the base, J, until the end, M, is pressed upon, when it will close with a snap, and drive the papers down upon the pin, F (Fig. 1). In using two of these clips, they are set open, and stand thus until the papers are laid in place, when they are successively closed, or the thumb pieces, D, D, may be connected by a cross bar, so that both are actuated simultaneously." The circuit judge held that this carefully described arrangement of parts, whereby the clip might be set open or "cocked" while the papers were being inserted, thus leaving both hands free for ar ranging them suitably in place, and whereby, when the papers were so placed, it might be closed with a snap, was an essential part of the device described, and must be read into the claim, as being the "paper-filing clip, B D." In this opinion we concur. The specification contains no suggestion that this particular arrangement of parts may be dispensed with, as it does with regard to the pin, F; and where a patentee has thus carefully and specifically pointed out the details of a structure, which details, as he shows, discharge a stated function, it is not for the court to declare them immaterial. Defendant has no such arrangement of parts. The upper arm of his clip is held in engagement with the base, or with the intermediate paper, by a spring impinging upwardly upon the thumb piece, and not permitting the thumb piece to be set back or cocked. seems probable that, in consequence, defendant's clip is not as convenient in use as the complainant's, but certainly it does not infringe. So far as the patent of 1883 is concerned, there is nothing to add to the opinion of the judge of the circuit court. In view of the state of the art, there was no patentable invention in altering the slots of the guide clip so as to permit the staple driver to be inserted both crosswise and lengthwise, nor so as to give sufficient room to drive a staple with a projecting eye. The decree of the circuit court is affirmed, with costs. PANAMA R. CO. v. NAPIER SHIPPING CO., Limited. (Circuit Court of Appeals, Second Circuit. April 18, 1894.) ADMIRALTY-REVIEW OF COMMISSIONER'S FINDINGS. The findings of a commissioner appointed to ascertain damages in rela tion to questions of fact depending on conflicting evidence should not be disturbed by the court, unless error or mistake is clearly apparent. Appeal from the Circuit Court of the United States for the Southern District of New York. This was a libel by the Napier Shipping Company, Limited, against the Panama Railroad Company, to recover damages for injuries received by libelant's steamer Stroma while lying at respondent's pier at Colon, Panama. The district court originally dismissed the libel (42 Fed. 922), and libelant appealed to the circuit court, where the decree was affirmed pro forma, and an appeal taken to this court. On February 16, 1892, this court reversed the decree (1 C. C. A. 576, 50 Fed. 557), with directions to ascertain the amount of libelant's loss, and render a decree therefor with costs. The cause was accordingly referred to a commissioner, and on the coming in of his report the exceptions taken thereto by respondent were overruled, and the report adopted. From this decree respondent has now appealed. Coudert Bros., for appellant. Butler, Stillman & Hubbard (Wilhelmus Mynderse, advocate), for appellee. Before WALLACE and SHIPMAN, Circuit Judges. PER CURIAM. The only questions raised by this appeal relate to the award of damages made by the decree of the circuit court upon overruling the exceptions of the appellant to the report of the commissioner to whom it was referred to ascertain the libelant's damages. The exceptions, aside from those taken to the allowance of interest, challenge the correctness of the commissioner's findings upon matters of fact. The only ones relating to the allowance of interest which have been argued orally or in the brief of counsel for the appellant also depend upon the correctness of the commis sioner's findings upon matters of fact, the contention being that interest should only have been allowed upon the amount of damages which should have been awarded, instead of upon the amount actually awarded. We think the court below properly adopted the commissioner's findings of fact, and correctly overruled the exceptions. The conclusions of such an officer, like those of a master in chancery, will not be disturbed as to matters of fact which depend upon conflicting testimony, unless error or mistake is clearly apparent. Whether the expenses of the libelant in raising and patching the steamer at Colon were reasonably incurred under the circumstances, whether it was more judicious to bring her to New York, in view of the extensive repairs which were necessary, than to attempt to have them made at New Orleans, whether the repairs made in New York were necessarily consequent to the injuries inflicted by the negligence of the appellant, or were in part consequent upon the negligence of the servants of the libelant, whether the sum paid for repairs was reasonable in amount or not, and whether the expenses and losses incurred by the libelant were or were not enhanced by any want of diligence or prudence on its own part, were all questions de |