The patent does not insist upon that form of the masonry in all particulars. The base of the wall may be, it is said, "varied to suit the circumstances;" the base may extend to the rear rather than the front "with proper proportions of metal the form shown in the drawings being what might be called an inverted T, while those suggested would be in the form of an L or reversed L."

The utility of the wall of these shapes is represented to be that it is "not so liable to be overturned from the pressure of material behind it as would a wall of the same height and area of section, but having a rectangular trapezoidal or triangular-shaped section," the latter shapes requiring more masonry. And it is said that the patented wall, "having more base and less weight" than such other shapes, "will rest more securely on a soft or yielding foundation, the weight of the material resting on the heel" causing the latter "to press on the earth below and thus cause friction to prevent the whole wall from sliding outward." This is the especial effect of the patent, achieved by the wall of the shape described and distinguishes it, is the contention, from the retaining walls of the prior art.

The patentee admits, however, that retaining walls had been "constructed of concrete and steel, but none" to his "knowledge" had "been supported on their own base as" his, nor had "any of them entirely inclosed the steel within the concrete" nor had "any of them used the weight of the material retained as a force to retain itself."

Such, then, is the wall and the utility attributed to it. The combinations which may be made with it are set forth in 17 claims, of which 1, 3, 5, 16 and 17 are involved in the present action. Counsel for petitioner considers, however, that 1 and 17 are so far illustrative that the others need not be given. They are as follows:

"1. The combination with a retaining-wall having a

heel, of a metal structure embedded vertically in said wall and obliquely in said heel, so that the weight of the retained material upon the heel of the metal structure will operate to retain the wall in vertical position."

"17. The combination with a retaining-wall having an inclined heel and a toe at opposite sides thereof, of a metal structure embedded within said wall and heel, said structure consisting of upright bents at the back part of the vertical wall and continuing down along the upper part of the heel of said wall to the back part thereof, whereby by reason of the toe and the heel the weight of the retained material upon the heel of the metal structure will operate to maintain the wall in a vertical position."

So much for the device of the patent. How far was it new or how far was it anticipated?

Bone's idea was conceived in 1898 and his patent issued in 1902 upon an application made in 1899, but according to his counsel, the value of the invention was not recognized “until after the lapse of several years," when he, Bone, brought a suit against the City of Akron, Ohio, in the District Court for the Northern District of Ohio, in vindication of the patent and in reparation for its infringement. He was given a decree which was affirmed by the Circuit Court of Appeals for the Sixth Circuit: [City of Akron v. Bone, 221 Fed. Rep. 944.]

The District Court (Judge Day) gave a clear exposition of the patent, the relation of its metal parts to the ma

1

1 The following is an extract from Judge Day's opinion:

"The reënforcing members [metallic members] are placed near the back face of the wall and heel and near the lower face of the toe. The oblique reënforcing bars in the heel acting in conjunction with the uprights serve the function of a cantilever beam whereby the weight of the material pressing upon the heel is transferred to the upright portion of the wall and operates to retain the wall in a vertical position.

"Considering the claims of the patent, and the testimony, I am of the opinion that Bone, the patentee, was the first to reënforce the retaining wall, or similar wall of concrete or masonry in such a manner

sonry parts, and their coöperating functions, and adjudged the patent valid and the wall of the City of Akron an infringement of it.

The Circuit Court of Appeals affirmed the decree. The court said that the record disclosed nothing which anticipated "the substantial thought of the patent." If it had done so, or, to quote the exact language of the court, "If the prior art had shown a structure intended for a retaining wall, and having a heel such that the weight of the earth thereon would tend to keep the wall erect, it might be difficult to find invention in merely adding the form of reinforcement most suitable to create the desired tensile strength; but we find no such earlier structures."1

that the weight of the retained material would be utilized to impart through the reënforcing members tensile resistance to the stern or vertical part of the wall, thereby fortifying this part of the wall against breaking strains.

"This was an advancement in the art and possessed novelty and the structure of the defendant city infringed this patent.

"While many of the features of concrete structures were old, yet this combination as outlined and described in this Bone application for a patent, was new. It is also in evidence that there has been a large sale and general acquiescence in the Bone patent."

The following is an extract from the opinion of the Circuit Court of Appeals:

"The record discloses nothing anticipating the substantial thought of the patent. Masonry or concrete retaining walls were deep and heavy, and maintained by gravity in their resistance against a horizontal stress. There was no occasion for reinforcement. Sustaining walls had been built of concrete with vertical reinforcement; but they were maintained against side strain by cross-ties cr beams, without which they might tip over. If the prior art had shown a structure intended for a retaining wall, and having a heel such that the weight of the earth thereon would tend to keep the wall erect, it might be difficult to find invention in merely adding the form of reinforcement most suitable to create the desired tensile strength; but we find no such earlier structures. Those which have that shape are sustaining walls only, and were so obviously unfit for use as retaining walls that no one seems to have seen the utility for that purpose, of which the

Opinion of the Court.

251 U.S.

On application for rehearing the court refused to direct the District Court to open the case to permit the defendant to put in proof regarding a German publication of 1894.

Those decisions confronted the District Court in the present suit and fortified the pretensions of the patent. They were attacked, however, as having been pronounced upon a different record and this conclusion was accepted by the District Court. The latter court found from the new evidence the existence of a structure upon the nonexistence of which the Circuit Court of Appeals for the Sixth Circuit based its conclusion. The District Court said that Bone was not the first to do the things he asserted he was the first to do, and that whatever the record in the Sixth Circuit might have shown, so far as the record before the court "was concerned, the absolute converse of that proposition" had "been demonstrated." The court, therefore, as we have said, dismissed the bill for want of equity.

The decree was affirmed by the Circuit Court of Ap peals; indeed, the reasoning of the District Court was approved after painstaking consideration of the patent and an estimate of the anticipatory defenses none of which the court said was introduced in the Akron Case, "otherwise a different conclusion would have been reached," adducing the opinion of the court. 249 Fed. Rep. 214. This being so, and there is no doubt it is so, the present case is relieved of the authority or persuasion of the Akron Case and it becomes necessary to consider the prior art and decide the extent and effect of its anticipation. We have given a cross-section of the device of the

form, when properly adapted and strengthened, was capable. There is also a prior wall, wholly of metal, fairly disclosing a unitary heel adapted to hold the wall erect; but to see that this could become merely a skeleton imbedded in concrete may well have required, in 1898, more than ordinary vision. Upon the whole, we think invention was involved, and the claims are valid."

patent, showing its shape and strengthening "metallic members," and the patent informs of their coöperative function. We reproduce the device and set by its side the Marion County wall for comparison.

If we may assign novelty to the Bone wall and consider it a broad advance upon the prior art (the extent of its advance, if any, we shall consider later), we may assign infringement of it by the Marion County wall. To an examination of the prior art we are, therefore, brought.

It would be difficult to add anything to the consideration and comment of the Court of Appeals. The court cited in support of its judgment a patent issued to Francois Coignet in 1869, and one issued to Stowell & Cunningham in 1899 upon an application made in 1897, and two articles written by P. Planat which appeared in 1894 and 1896 in a scientific magazine called "La Construction Moderne," published in Paris; also a publication which appeared in Germany in 1894 concerning a wall which is given the name of Bauzeitung wall. The article recites that a "utility model patent" had been granted, consisting "of a vertical and a horizontal member."

The Coignet natent is somewhat indefinite. It relates, according to its declaration, to "monolithic structures, or articles made of artificial stone paste" into which irregular shaped irons are introduced to be "arranged in such a