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ner wall of the cylinder by the pressure of the water. Therefore, the water escapes slowly from the cylinder through the small aperture, and the valve cannot move faster, in shutting, than it is allowed to move by the escape of

the water through the small aperture. ** The apparatus alleged to infringe the two patents is the same in all of the

suits. It has a brass casting, and is thus described by the plaintiff's expert: “This brass casting of the defendants has at its lower part a cavity whose walls partially bound the variable chamber. This cavity is a cup-shaped piece of brass screwed to the bottom of the casting. A cylindrical brass plunger enters this cavity, and the upper end of it is formed into a valve. This brass plunger is packed to the top of the cavity by a cup-leather, which is secured between the upper part of the brass cup and an internal flange on the brass casting. The stem of the plunger and valve is surrounded by a coiled brass spring, which always tends to lift the plunger and shut the valve. The plunger has, also, a small nick or groove cut in its periphery, and extending from the top to the bottom of the plunger. When this contrivance is ready for operation, all parts of the cavity in the brass casting, including the variable chainber, are filled with water, and the valve is held on its seat by the spiral spring, the plunger then being in its highest position. When it is desired to open the valve, force is applied to depress the valve-stem; this force compresses the spring, depresses the plunger, and opens the valve quickly, owing to the fact that the water can escape rapidly from the variable chamber, such rapid escape being due to the operation of the cup-leather, which now ceases to hug the plunger and acts as a valve, permitting the water to escape freely from the variable chamber. When the force which was applied to depress the stem and open the valve is removed, then the spring strives to shut the valve and elevate the plunger, and as soon as it commences to elevate he plunger the pressure of water causes the cup-leather to hug the plunger čightly, so that it ceases to act as a valve, and becomes a tight packing. As soon as this occurs water can only enter the chamber through the small groove in the periphery of the plunger, and the valve can shut no faster than this small flow of water permits it to shut.”.

It is shown by the evidence that cup-leathers had been used in the central valves of the plungers of pumps, the cup-leather contracting on the downstroke and allowing the water to-pass by, and spreading out on the up-stroke and raising the water; and that it was not new to employ a variable chamber to effect, by the gradual escape of water from it, the slow and gradual closing of a valve.

În George Hulme's English patent No. 8,971, of November, 1841, is shown a device for “keeping a valve open for any required length of time for the supply of water to the basins of water-closets generally.” The specification says: "To regulate the length of time that the valve, F, may be kept open for the flow of water from the reservoir to the basin of the closet, after the pan or valve has closed, the barrel, A, A, is furnished with the openings, N, N, communicating from the under to the upper side of the bucket, D, and fitted with a cock, 0. Now, by turning the cock, 0, in such a position that the water-way through the cock, 0, will be diminished, more time will be required for the bucket to displace the contents of the barrel, and vice versa.” The bucket, D, does not have a cup-leather, but has a central valve, E, to allow the water to pass.

The defendants have substantially the Hulme construction, using a cupleather centrally, instead of the Hulme central valve. A central valve being old, and a cup-leather being old, and a central valve and cup-leather combined being old, and a plunger with a central valve and a means of regulating the escape of the water from above it being old, and the device for the escape of the water, used by the defendants, being the same as in Hulme, it must be held that, for the purpose of securing the free passage of water in one direc

tion, and preventing its escape in the other direction, otherwise than gradually, the defendants have used nothing which they did not have a right to use, and have not appropriated any patentable invention which Carr had a right to cover, as against the defendant's structure, by the third claim of his reissue. If Carr had made the defendants' form of structure, when he made his own, he would not, in view of the state of the art, have made anything having patentable novelty in it; and, therefore, what he has claimed in claim 3 of bis reissue, has no patentable feature which the defendants' form of structure infringes. The action of the cup-leather in Carr's structure and in the defendants', to admit the free passage of the water while the valve is* moving in one direction, and to prevent such passage while the valve is moving in the other direction, is due to the flexibility of the leather, and to the pressure of the water on its different sides alternately, and to its position with reference to the wall of the chamber, and is the same as in the old central valve of a pump-plunger, which was furnished with a cup-leather. The effect resulting from allowing the water, which cannot return through the passage by which it entereil, to escape by a small orifice and gradually, and thus cause a gradual movement in a valve attached to the central stem, is due to the small orifice. All that Carr did, if anything, was to add his form of orifice to the valve and cup-leather of the pump-plunger. But the idea of having openings extending from one side to the other of a bucket, and thus regulating the closing of a water-valve by the slow escape of the water from the upper side of the bucket, through such openings, was fully exhibited in the apparatus of Hulme.

Claim 3 of Carr's reissue speaks of the cup-leather as “moving freely in one direction and closing against the containing cylinder in the other direction.” This action existed in the cup-leather of the old pump-plunger. The claim also says, “the leakage of water in said cylinder allowing the movement of said cup-leather, as set forth.” This means that the greater or less extent of the leakage allows a faster or slower movement of the cup-leather, and a faster or slower closing of the valve. The claim involves, therefore, as an element in it, the means of leakage set forth. It says that the use of the cup-leather is “for controlling the motion of said valve in closing gradually, substantially as specified." But it is the gradual escape of the water through the small orifice which controls the motion of the valve. The cup-leather does not control such motion. The only action of the cup-leather is the same which it had in the old pump-plunger: to hold up a column of water and act as a packing to prevent the return passage of the water. In this condition of things it would seem that the only point of invention, if it could be dignified by that name, was the special means of leakage shown by Carr, of having a screw through the cap, with part of the screw filed away; and which is not* used by the defendants, who use the same means of leakage as Hulme did.

The provision of the constitution (article 1, § 8, subd. 8) is that congress shall have power “to proinote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The beneficiary must be an inventor and he must have made a discovery. The statute has always carried out this idea. Under the act of July 4, 1836, (5 St. 119, § 6,) in force when these patents were granted, the patentee was required to be a person who had "discovered or invented” a “new and useful art, machine, manufacture, or composition of matter,” or a “new and useful improvement in any art, machine, manufacture, or composition of matter.” In the act of July 8, 1870, (16 St. 201, § 24,) the patentee was required to be a person who had “invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement thereof;" and that language is reproduced in section 4886 of the Revised Statutes. So, it is not enough that a thing shall be new, in the sense that in the shape or orm in hi it

is produced it shall not have been before known, and that it shall be useful, but it must, under the constitution and the statute, amount to an invention or discovery.

To refer only to some more recent cases, adjudged since these suits were decided below, this principle was applied in Vinton v. Hamilton, 104 U. S. 485, where, a cupola-furnace being old, and a cinder-notch being old, and the use of a cinder-notch to draw off cinders from a blast-furnace being old, and the cinder-notch, in drawing off the cinder from a cupola-furnace, performing the same function as in the blast-furnace, it was held that the application of the cinder-notch to the cupola-furnace would occur to any practical man, and that there was nothing patentable in such application.

In Hall v. Macneale, 107 U. S. 90; S. C. 2 SUP. Cr. REP. 73, a cored conical bolt, in a safe, with a screw-thread on it, having existed before, and also a solid conical bolt, it was held to be no invention to add the screw-thread to the solid conical bolt.

*In Atlantic Works v. Brady, 107 U.S. 192, 200; S.C.2 SUP. Cr. REP. 225, it was said, that it is not the object of the patent laws to grant a monopoly for every trifling device which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures; and this doctrine was applied in Slawson v. Grand St. R. Co. 107 U. S. 649; S. C. 2 SUP. Cr. REP. 663; in King v. Gallun, 109 U. S. 99; S. C. 3 SUP. CT. REP. 85; in Double-pointed Tack Co. v. Two Rivers Manuf'g Co. 109 U. S. 117; S. C. 3 SUP. Ct. REP. 105; in Estey v. Burdett, 109 U. S. 633; S. C. 3 SUP. Ct. REP. 531; in Bussey v. Excelsior Manuf'g Co. 110 U. S. 131; S. C. 4 SUP. Ct. REP.38; in Pennsylcania R. Co. v. Locomotive, etc., Truck Co. 110 U. S. 490; S. C. 4 SUP. Ct. REP. 220; in Phillips v. City of Detroit, 111 U. S. 601; S. C. 4 SUP. Cr. REP. 580; in Morris v. McMillin, 112 U.S. 244; S. C. 5 Sup. CT. REP. 218; and in Hollister v. Benedict & Burnham Manuf'g Co. 113 U. S. 59; S. C. 5 SUP. Cr. REP. 717.

In the case last cited the thing claimed was new, in the sense that it had not been anticipated by any previous invention, and it was shown to have superior utility, yet it was held not to be such an improvement as was entitled to be regarded, in the patent law, as an invention. The claim was “A stamp, the body of which is made of paper or other material, and having a removable slip of metal or other material, displaying thereon a serial number, or other specific identifying mark, corresponding with a similar mark upon the stub, and so attached that the removal of such slip must mutilate or destroy the stamp.” The part designed to become a stub when the stamp proper was separated therefrom, and displaying a serial number, was well known; and so was the constituent part of the stamp proper designed to be peripanently attached to a barrel. The third element, namely, a constituent part of the stamp proper displaying the same identifying serial number as the stub, which part, after the stamp proper had been affixed to the barrel, bore such relation to the permanent part, that it could be removed therefrom so as to retain its own integrity, but to mutilate, and thereby cancel, the stamp, by its removal, was not new, so far as the contents of suc constituent part were identical with those on the stub. But the question turned on that feature of the third element whereby a removable part of the stamp proper, the contents of wbich

identified the stamp with the stub after the stamp had been attached, could - ve so*removed as to retain its own integrity, but mutilate, and thereby cancel, the stamp, by its removal. This was held not to be a patentable in ven. tion; and “not to spring from that intuitive faculty of the mind put forth in the search for new results, or new methods, creating what had not before existed, or bringing to light what lay hidden from vision;" but to be only "the display of the expected skill of the calling,” and involving "only the ex. ercise of the ordinary faculties of reasoning upon the materials supplied by a special knowledge, and the faculty of manipu tion which results from its

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habitual and intelligent practice;” and to be “in no sense the creative work of that inventive faculty which it is the purpose of the constitution and pat. ent laws to encourage and reward."

On these principles claim 3 of the Carr reissue must, in view of the state of the art, either be held not to involve a patentable invention, or, if it does, not to have been infringed.

The specification of the Bartholomew patent says: “The nature of my invention consists in providing for water-closets a cistern, or drip, or leakchainber, arranged upon the top of, or over the trunk of a closet, and placing a supply-cock within or above said drip-box or cistern, so that any waste, or leak, or drip from the cock shall be conducted into the trunk, so as to insure the keeping of the floor dry. * * * Fig. 1 is a prospective view of a pancloset, showing my drip-box arranged upon the top plate of the closet, and the cock for supplying water to the same secured to the closet within the drip-box.

The general form of the closet is such as is in common Upon the cover, R, I cast a box, inclosure, or cistern, E, about one inch high, (more or less,) and broad enough to admit of placing the 'A' cock (I use a valve cock) within the cistern, and (where it is practicable) so as also to receive the drip that may escape from the joint at the arm of the basin, called the “putty-joint.' I screw the cock into the cover of the closet, and make a hole within the drip-box, or in the bottom of the cock, to admit the leak to fall into the trunk, P, and not onto the floor." The first claim of the patent, which is the only one alleged to have been infringed, reads thus: “First. I claim the use of a drip-box or leak-chamber, arranged above the closet, and. below and around the supply-cock, substantially as described.”

The defendants' structure has a trunk, and a supply cock, and a drip-box arranged below and around the supply cock, but the drip-box is cast on the side of the trunk, near the top, but below it, and not on top of it. The drip goes into the drip-box, and thence into the trunk and the soil-pipe. The following devices are shown to have been old: A drip-cup or drip-box; a pipe to convey away drippings, in machinery, from a drip-box arranged in connection with a cock; a drip-cup applied to the valve of a water-closet, the leakage from the valve falling into a saucer, and thence finding its way, through a hole, into the inside of the trunk; a valve on the floor at the foot of the trunk; a valve attached to the trunk and below its top; a valve above its top; a valve with a drip-pan conducting the drip into the soil-pipe at the foot of the trunk; a valve on top of the trunk, and a provision, by means of a hollow arm, to conduct the drip into the trunk. In view of this state of the art, the claim must be limited, as defined by its language and that of the specification, to a drip-box “arranged upon the top of or over the trunk”—“arranged upon the top-plate,”—cast “upon the cover”—“arran, ed above the closet.” The limitation imposed by the patentee must be presumed to have been made with good reason, and, even if there was anything patentable in the claim as it reads, it cannot, in view of the state of the art, be extended to cover any structure except one which has a drip-box arranged above or on top of the closet, and therefore, has not been infringed.

From these considerations it results that the decrees in the Missouri suits must be affirmed; and those in the New York suits must be reversed, with di. rections to dismiss the bills, with costs.

(114 U. S. 564)
WALES 0. WHITNEY, Secretary of the Navy.

(May 4, 1885.) 1. COURTS-MARTIAL-APPELLATE JURISDICTION IN THE SUPREME COURT OF THE DISTRICT

of COLUMBIA AND OF THAT OF THE UNITED STATES.

Neither the supreme court of the District of Columbia nor the supreme court of the United States has any appellate jurisdiction over the naval courts-martial, nor

over the offenses which such a court has power to try. 2. SAME-RELIEF OBTAINABLE IN Civil COURT-HABEAS CORPUS.

The civil courts can relieve a person from imprisonment under order of a courtmartial only by writ of habeas corpus, and then only when it is apparent that the

court-martial proceeds without jurisdiction. 3. SAME-LACK OF RESTRAINT OF THE PERSON-JURISDICTION OF CIVIL COURT.

If there is no restraint of the person, there is no right in the civil courts to inter

fere. 4. HABEAS CORPUS-MORAL RESTRAINT.

Something more than a moral restraint is necessary for the writ of habeas corpus. Therefore, an order of arrest by the secretary of the navy to the chief medical director of the navy, directing him to remain within the bounds of the city of Washington, is not such an imprisonment as gives such medical director ground for the writ.

*566

Appeal from the Supreme Court of the District of Columbia.

S. Shellabarger, J. M. Wilson, and F. P. B. Sands, for appellant. John 8. Blair, for appellee.

MILLER, J. This is an appeal from a judgment of the supreme court of the District of Columbia, which refused to make an orde on a writ of habeas corpus relieving appellant from the custody of the appellee, who, it is alleged, held the appellant in restraint of his liberty unlawfully. Upon the decision of the supreme court of the district, adverse to petitioner, an application for an original writ of habeas corpus was made to this court by counsel for appellant, but on a suggestion from the court that an act of congress, at its session just closed, had restored the appellate jurisdiction of this court in habeas corpus cases over decisions of the circuit courts, and that this necessarily included jurisdiction overosimilar judgments of the supreme court of the District of Columbia, counsel, on due consideration, withdrew their application, and, appealing from the judgment of that court, bring here the record of it for review.

Section 846 of the Revised Statutes of the District of Columbia, which makes the jurisdiction of this court over judgments and decrees of the circuit courts of the United States the measure of its jurisdiction (except as regards the sum in controversy) orer judgments and decrees of the supreme court of the district in similar cases, justities the exercise of our appellate jurisdiction in the present case. The original petition for the writ was addressed to Mr. Justice Cox of the supreme court of the district, and alleged that on the second day of March, 1885, the petitioner was arrested and imprisoned, and ever since has so remained in arrest and imprisonment, and restrained of his liberty in the District of Columbia, illegally. The petition sets out an order of the secretary of the navy, under which this restraint is exercised, which order is in the following terms:

“WASHINGTON, February 28, 1885. “SIR

Transmitted herewith you will receive charges, with specifications, preferred against you by the department. A general court-martial has been ordered to convene in rooms numbered 32 and 33, at the navy department, Washington, D. C., at 12 o'clock noon, on Monday, the ninth proximo, at which time and place you will appear and report yourself to Rear Admiral Edward Simpson, United States navy, the presiding officer of the court, for trial. The judge advocate will summon such witnesses as you may require for your defense.

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