Opinion of the Court.

desire to secure by Letters Patent

1. A hydrant or water plug, constructed substantially as shown and described, that is to say, with the parts A and B connected together, as shown,

and with a cylinder-valve and a waste-water valve connected and operated in combination substantially as herein specified.

2. The arrangement of the parts A, B, valve D, case C, and stuffing-box H, as herein described, for the purpose specified."

1. In combination with a hydrant or fire-plug, a detached and surrounding casing C, said casing adapted to have an independent up-and-down motion sufficient to receive the entire movement imparted by the upheaval of the surrounding earth by freezing, without derangement or disturbance of the hydrant or plug proper, substantially as shown.

2. In combination with a hydrant or fire-plug pipe A, the supply-pipe B, and cylinder-valve and waste-valve, connected and operated substantially as herein shown and described.

3. The combination of the hydrant or fire-plug pipe A, supply-pipe B, valve D, casing C, and stuffing-box H, substantially as and for the purpose shown."

The drawings of the original and of the reissue are also here [see next page] placed side by side:

The material difference between the descriptive parts of the two specifications is that, in the reissue, it is stated that the casing C is movable, and that sufficient space is left between the bead a upon the hydrant proper, and the upper terminus of the casing C, to permit of sufficient up-and-down play of the casing C to allow it to slide loosely up and down, to accommodate the upward and downward movement of the earth during the process of freezing and thawing, without any

liability to derange the plug or hydrant. The casing could not thus slide loosely up and down, unless sufficient space were left between the bead a and the upper terminus of the casing. No suggestion of such arrangement is found in the specification of the original patent, and the drawing of that patent shows no space between the upper terminus of the casing and

Opinion of the Court.

the bead or flange above it. This is new matter introduced into the specification of the reissue, contrary to the express inhibition of § 4916 of the Revised Statutes.

Claim 1 of the reissue is for an invention not indicated or suggested in the original patent, namely, the independent upand-down motion of the casing. In addition to this, the drawing of the original patent shows a close contact between the top of the casing and the bead or flange above it, so as absolutely to forbid any such independent up-and-down motion of the casing as is covered by the first claim of the reissue, while the drawing, Figure 1, of the reissue, shows a sufficient space between the top of the casing and the bead or flange above it to admit of such independent up-and-down motion.

Issue having been joined, proofs were taken on both sides, and the Circuit Court entered a decree dismissing the bill, from which the plaintiffs have appealed. Its opinion accompanies the record, and is reported in 22 Fed. Rep. 292. It held that the reissued patent was invalid, as matter of law, upon a comparison of the original with the reissue. We concur in this view.

It is sought to sustain the validity of the reissue by attempting to show that the model filed in the Patent Office with the original application exhibited the invention covered by the first claim of the reissue. It is doubtful whether that fact is satisfactorily established. But, irrespective of this, the case falls directly within the recent decision of this court in Parker & Whipple Co. v. Yale Clock Co., 123 U. S. 87. It was held in that case, that what was suggested in the original specification, drawings, or patent office model is not to be considered as a part of the invention intended to have been covered by the original patent, unless it can be seen from a comparison of the two patents that the invention which the original patent was intended to cover embraced the things thus suggested or indicated in the original specification, drawings, or patent office model, and unless the original specification indicated that those things were embraced in the invention intended to have been secured by the original patent. (See, also, Hoskin v. Fisher, 125 U. S. 217.) In the present

Syllabus.

case, it cannot be seen from a comparison of the two patents that the original specification indicated that what is covered by the first claim of the reissue was intended to have been secured by the original.

In the present case, also, the reissue was not applied for until nearly eight years after the original patent was granted, and the reissue was taken with the manifest intention of covering, by an enlarged claim, structures which in the meantime had gone into extensive public use, and which were not covered by any claim of the original patent.

Infringement is alleged only of claims 1 and 3 of the reissue. As to the casing C of the third claim, it cannot, any more than the casing C of the first claim, be held to cover a casing which has the independent up-and-down motion referred to. Such casing must be construed to be the casing exhibited in the drawing annexed to the original patent, that is, one in which the up-and-down play is restricted by the overlapping bead or flange. On any other construction, claim 3 is an unlawful expansion, in regard to the casing, of what is found in the original patent. In addition to this, if the casing of claim 3 is only a casing which has no end play, it is anticipated by what is shown in letters patent No. 19,206, granted to Race and Mathews, January 26, 1858, which patent was the subject of the decision of this court in Mathews v. Machine Co., 105 U. S. 54.

The decree of the Circuit Court is affirmed.

ARTHUR'S EXECUTORS v. VIETOR.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

Hosiery, composed of wool and cotton, was imported in 1873. The collector assessed the duties at 35 per cent ad valorem, and 50 cents a pound, less 10 per cent, under § of the act of March 2d, 1867, c.

Opinion of the Court.

197, 14 Stat. 561, as manufactures made in part of wool, "not herein otherwise provided for." The importer claimed that the goods were dutiable under § 22 of the act of March 2, 1861, c. 68, 12 Stat. 191, and § 13 of the act of July 14, 1862, c. 163, 12 Stat. 556, as stockings made on frames, worn by men, women, and children, at 35 per cent ad valorem, less 10 per cent. In a suit to recover back the excess of duties, the court directed a verdict for the importer: Held, that this was error, because the hosiery was not otherwise provided for in the act of 1867, and was a manufacture made in part of wool.

The case of Vietor v. Arthur, 104 U. S. 498, commented. on, and explained, and distinguished.

THIS action was commenced by the defendants in error as plaintiffs in the court below, to recover an excess of duties alleged to have been paid under protest on an importation of hosiery into the port of New York. Trial and verdict for the plaintiffs under direction of the court, and judgment on the verdict. The defendant sued out this writ of error. The case is stated in the opinion.

Mr. Solicitor General for plaintiffs in error.

Mr. Stephen G. Clarke for defendants in error.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

This is an action at law, commenced in the Superior Court of the city of New York, by Frederick Vietor, George F. Vietor, Carl Vietor, Thomas Vietor, Jr., and Fritz Achelis, against Chester A. Arthur, collector of the port of New York, to recover an alleged excess of duties paid under protest on goods entered at the custom house in New York, from April, 1873, to November, 1873, prior to the enactment of the Revised Statutes.

The goods were hosiery. The appraiser returned the hosiery in some cases as "knit goods, wool hosiery, over 80, 50, 35, less 10 per cent;" in other cases as "worsted knit goods," etc. The collector liquidated the duties on the hosiery at the rate of 35 per cent ad valorem and 50 cents a pound, less a deduction of ten per cent. The plaintiffs protested in writing against the liquidation, "because said merchandise, being merino hosiery, and similar articles made on frames, not other