John R. Bennett, for appellant.
Josiah Sullivan, for appellees.
Mr. Justice JACKSON delivered the opinion of the court.
These two causes present the same questions on the same state of facts. They were heard in the lower court and in this court as practically one case, and will therefore be considered [150 U.S. 387, 388] and determined together. The suits were brought by the appellant as assignee of letters patent No. 248,646, granted to Charles Gordon, October 25, 1881, for 'an improved apparatus for cooling and drawing beer,' against the respective appellees for the alleged infringement of the patent. The defenses interposed by the answer of each respondent were want of patentable novelty in the invention covered by the letters patent, the anticipation thereof by certain prior devices, and noninfringement. The latter defense was not insisted on, either in the court below or in this court; the main defense relied on being that of anticipation by a prior apparatus used for the same purpose before the date of the Gordon invention. Upon this question much proof was taken on both sides.
The causes were heard before Mr. Justice Blatchford, sitting in the circuit court of the United States for the northern district of New York, who found from the proof that the existence of the prior anticipating device was clearly established, and shown to have been in practical use before the Gordon invention. The court said:
Having reached this conclusion, the court dismissed the bill, and from that decree the present appeals are prosecuted.
The character of the invention, so far as relates to the first and fourth claims, which are the only claims alleged to be infringed by the appellees, is thus set forth in the specification:
The first and fourth claims are as follows:
These two claims are substantially the same, the only difference between them being that the fourth claim includes the [150 U.S. 387, 390] lower chamber, F, which is not specifically mentioned as an element of the combination in the first claim.
The apparatus consists of an upper or saloon ice box, provided with a suitable faucet, and a chamber located in the cellar, which is connected with the upper or saloon ice box by an air passage, through which passes the beer-supply pipe conveying the beer from the keg in the cellar chamber to the faucet in the upper or saloon ice box. The air cooled by the ice in the upper or saloon ice box, and the water produced by the melting of the ice, flow down through the air passage, coming in contact with the beer- supply pipe, thereby reducing the temperature of the beer contained terein, and passing through it. The beer is forced from the keg upward through the beer-supply pipe to the faucet by air pressure introduced in the keg by any suitable air apparatus.
Gordon made this invention in June, 1879. The anticipating apparatus was used by one Meinhard in Rochester, N. Y., in 1877, or early in 1878. That apparatus had the upper ice box, faucets, the lower chamber, and the supply pipe extending from the upper to the lower chamber, and the supply pipe was surrounded or incased in another pipe, which formed an air passage connunication between the upper ice box and the lower chamber. Each supply pipe led to a barrel or keg in the lower chamber, and the upper portion of the supply pipe was surrounded or incased in a tin pipe, while the lower part was inclosed in a rubber hose. The water of the melted ice, and the cold air from the upper ice box, flowed down around the supply pipe through this tin and rubber incasement. It was claimed that this apparatus was a practical and successful one, and embodied the same principle as that of the Gordon device, though it may have been inferior in degree of utility and perfection, and that the Gordon apparatus was simply an improvement, which did not involve any patentable invention.
It is purely a question of fact, to be determined from the testimony in the cases, whether the anticipating Meinhard apparatus actually existed, as alleged by the appellees. They have established by a number of respectable witnesses that [150 U.S. 387, 391] such an apparatus was in practical use by Meinhard a year or more prior to the date of the Gordon invention. This testimony is sought to be impeached or contradicted by the appellant, but, after a careful examination thereof, we think he fails to break down or discredit the proof by which the anticipating device is established.
The voluminous testimony on this question of fact has been carefully examined, and, without reviewing it in detail, we concur with the court below in thinking that it does establish, clearly and satisfactorily, the existence of the prior Meinhard apparatus, which constituted an anticipation of the Gordon invention.
Again, in a stipulation entered into between the parties, it was agreed as follows:
This St. Louis apparatus had a beer-supply pipe, connecting the upper ice box and the barrel or keg in the lower chamer, [150 U.S. 387, 392] inclosed in a metallic case, four inches in diameter, which was filled with sand or gravel, through which the drippings from the upper ice box percolated. The metallic case, thus filled, was designed for cooling the beer that remained in the supply pipe by means of the drippings from the upper ice box, which flowed down through the same; and to some extent it accomplished the desired purpose. The principle was well known at that time and at the date of the Gordon invention that cold air from an upper ice box or chamber would descend through an inclosed connection to a lower chamber. The Gordon invention, by means of an open air chamber surrounding the supply pipe, sought to put this principle to a practical purpose. It dispensed with the sand or gravel, such as filled the metallic case around the supply pipe in the St. Louis apparatus, and left that space open, so that the cold air, as well as the drippings from the upper ice box, might be conducted through the same. In other words, he simply emptied the metallic case of the St. Louis apparatus of its sand or gravel, so as to leave that metallic case open, and allow the cold air from the upper box to flow down through the same. This change in the apparatus does not rise to the dignity of invention such as would entitle him to patent. The purpose to be accomplished was not patentable, and the particular means devised to secure that purpose did not involve invention. Carver v. Hyde, 16 Pet. 519; Le Roy v. Tatham, 14 How. 156; Corning v. Burden, 15 How. 252; Burr v. Duryee, 1 Wall. 531; Fuller v. Yentzer, 94 U.S. 288 ; Knapp v. Morss, 150 U.S. 221 , 14 Sup. Ct. 81.
We are therefore of opinion that the Gordon patent is wanting in patentable novelty, and that it was anticipated. The judgment of the court below, in each cash, is accordingly affirmed.