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July, 1825, and the 19th of May, 1896. The however, the line or joint between the old first, 501,537, was for an improved "method hardened material and the new material has of repairing asphalt pavements;” the other been plainly discernible, and more often numbers were for "improvement in appara- there has been more or less of* a ridge.* tus for repairing asphalt pavements." Again, this new block of material, by reason

The bill contained the usual allegations of frost or from other causes, is frequently of invention and infringement, and prayed torn loose from its soldered connection with an injunction.

the old material, thus necessitating new reThe answer admitted the issue of the pat- pairs. In practising my invention, how. ents, but denied that Perkins was the origi- ever, I subject the spot to be repaired and nal and first inventor of the subject matter, the surrounding edges to such a degree of or that the improvements therein disclosed heat that the surface asphalt-not only the constituted new and useful inventions within exact spot to be repaired, but the surroundthe meaning of the patent laws, or that said ing portion, to a greater or less degree-is improvements were not known or used in reduced to the soft pliable state in which it this country, or had not been patented or is originally laid. With a rake or other

described in any printed publication in this suitable instrument it is then agitated and av or in foreign countries before the alleged in mixed with enough new material to fill up vention thereof by Perkins.

the spot to be repaired. It is then subjected *The petitioner dismissed the bill as to pat- to the usual finishing operation of ironing ent number 542,349. Upon the hearing the and burnishing. The heating of the surcircuit court sustained the apparatus pat- face may be accomplished in various ways ent number 560,599, finding that the Assy- and by means of various forms of appararian Asphalt Company had infringed upon tus, and while I have herein shown but one that apparatus, and ordered an injunction form for accomplishing, the result, yet I and a reference for an accounting. The would have it understood that I do not limmethod patent, number 501,537, was ad- it myself to any particular form of apparajudged invalid, and the court said:

tus for carrying out my invention." "From the evidence in this suit regarding The apparatus described consists of a suitthe prior state of the art, and the argument able tank mounted on a wheel for carrying before me, I find that the term 'asphalt' is gasoline. The tank is connected with a senot limited in its meaning to the Trinidad ries of horizontal pipes which carry a se deposit, or to so-called 'American mixture,' ries of burners, and project a flame downbut includes as well the bituminous paving ward against the pavement.” material used in France and elsewhere, com "In carrying out the invention A repre prising natural rock asphalt and composi- sents a suitable tank for carrying gasoline tions of bitumen and lime or sand particles; mounted on the wheeled frame B and conand that the claims of the Perkins method nected by the pipe C with a series of horipatent are so broad with reference to the ap- zontal pipes, D. These pipes D carry a seplication of heat to the repair of asphalt ries of burners, E, which pass through a pavements that they are anticipated by the hood or shield, F, and project a flame downCrochet patent, and are invalid." [96 Fed. ward against the pavement. Pressure is 236.)

then obtained upon the gasoline to force it The petitioner took an appeal to the court to the burners and to produce a blast by of appeals, and that court affirmed the judg- means of an air pump, G, mounted upon ment of the circuit court. 41 C. C. A. 123, the tank." 100 Fed. 305. The case was then brought The letters patent further say: here by a certiorari.

"The apparatus is also provided with a The proceedings here are only concerned handle, H, whereby the operator may readiwith the method patent, number 501,537. ly move it to the desired spot. Now, as The letters patent describe the invention as would be seen by turning on as many of follows:

the burners as are desired, a strong blast “My invention is designed to produce a of heat is projected against the surface of method whereby the repairing of asphalt the asphalt, and readily melts it. As exparements may be quickly and cheaply ac- plained above, when it is desired to repair complished, and a neater appearing pave a spot, the apparatus is moved adjacent ment be obtained after repairing than has thereto with the burners directly above the heretofore been the case.

spot. These soon reduce the surface as"Heretofore in the repairing it has been phalt, both at the spot and at the surroundcustomary to dig out with a pick or other ing edges, to a pliable state, the strong** instrument the surface material around the blast causing not only the immediate surspot to be repaired, sometimes applying heat face, but the particles deep down, to be to the spot to soften the material so that it melted and yet not burned. With a rake may be more easily removed. When the or other suitable instrument the operator material has been removed the depression then agitates or stirs up the softened matethus made is thoroughly cleaned and given a rial, and, by adding new material of substancoat or dressing of tar. New material in a tially the same degree of softness, the spot or heated state has then been placed in the de depression to be repaired is filled up and subpression and been ironed down and jected to the usual smoothing and finishing smoothed off in the usual manner of finish-operation as in the case of a new pavement. ing, the tar acting as a solder to hold the This, as will be seen, is done without the use new material in place. When completed,' of the tar for the purpose of uniting the

parts or sections of material, and is done ing of the surrounding edges, producing a without any distinct dividing line between union and coalescing of the old and new the old and new material. In fact, there is material, making a better appearing and no dividing line, because the new material more lasting repair. If the method and has been mixed with and becomes a part of effect of the patent be different from this, the old material. As stated above, while we are unable to discern it from the patent heating the spot to be repaired, the sur or from the testimony. Indeed, there is no rounding edges or portions must be heated other difference established by the testito a greater or less degree, and the new ma- mony. One of the expert witnesses of the terial is worked into these edges, as well as petitioner testified as follows: in the spot to be repaired, so that when har “It is further evident that in such use of dened it is practically impossible to tell defendants' device and in the repair of pavewhere the pavement has been repaired. ments in part by the use of said device by de “What I claim is

fendants, the use of tar or any other cement "1. The method of repairing asphalt or 'solder' is obviated; that the union be pavements, which consists in subjecting the tween the patch of new material and the old spot to be repaired to heat, adding new pavement is direct, immediate, and complete, material, and smoothing and burnishing it, without the intervention of an interposed substantially as described.

body of tar or like material; and that the "2. The method of repairing asphalt pave joint need, therefore, present none of the disments, which consists in subjecting the spot advantages, objections, or defects, in re to be repaired to heat until the material is spect either of *appearance or of effective softened, agitating it, and mixing with it ness, which distinguished the old tar joint new material, and finally smoothing and and which are obviated by the method here burnishing it, substantially as described.” in controversy.

Infringement is only asserted of the first claim, and, considering the language of the “There are three steps or process elements claim and of the specifications, it seems im- enumerated in this claim, to wit: First, possible to escape the conclusion that the in- 'subjecting the spot to be repaired to heat;' vention claimed is for the application of second, 'adding new material;' and third, heat to the spot to be repaired. And the 'smoothing and burnishing.' These are all patentee did not confine himself to the par- performed in the same order by the defendticular apparatus he described. That, he ants. The separate steps are, moreover, essaid, was "one form of accomplishing the sentially the same in kind in defendants' result.” He would have it understood, he practice, as set forth in the patent. The said, that he did not confine himself “to any heat is applied to the spot to be repaired particular form of apparatus for carrying with a flame blast. The new material added out” his invention; and the independence of is the same in condition and character; it his method from any form of apparatus is is not tar or any part tar, but is solely the brought out by contrast of what had been asphalt composition like that of the old done and what he proposed to do as an im- pavement, and in the soft condition and provement. What had been done was to heated state in which said composition is take out with a pick or other instrument the and was originally applied. The smoothing surface material around the spot to be re and burnishing is the same step in both paired, sometimes applying heat to the spot cases, being the old and familiar operation to soften the material, so that it might performed by means of heated metal tampmore easily be removed. And the new mething and smoothing irons long before used od he proposed was to subject the spot to be in leveling and smoothing original asphalt repaired and surrounding edges to such a pavement surfaces." degree of heat that the surface asphalt And he further testified: not only the exact spot to be repaired, but "It appears to me to be a feature of the the surrounding material, to a greater or patented method, or a characteristic of the less degree-will be reduced to the soft, pli- steps of applying the new material, that the able state in which it was originally laid. new material is placed into direct contact Here we have the comparison of the two with the old, as if the claim read 'adding methods. The old was to take out the sur- new material in direct contact with the old face material around the spot to be repaired, material, and smoothing and burnishing sometimes applying heat to soften such it.'” material. The new method was to apply In other words, the mixing of the old and heat, not only to the exact spot to be re new material around the edges of the excapaired, but the surrounding edges. What, vation, and "adding of new material in di. then, was the advantage of the new method i rect contact with the old material, smooth. The patent tells us. In the old method the ing and burnishing it,” is the essence of the depression made by the removal of material invention; and so unqualifiedly is this true was "thoroughly cleaned and given a coat that a witness of petitioner testified that it or dressing of tar.". The tar acted as a sol- the heat which was applied not only melted, der, but the joint between the old and the but burned, the immediate surface and as new material was discernible, and often a well "the particles deep down," and the maridge was formed, and the adhesion of the terial thus burned raked away clean before materials yielded to frost and other causes. new material was applied, the method of the The new method dispenses with the tar and patent would be followed. its consequences. It substitued the melt As thus described, was there anything in

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the art which preceded the Perkins method of are adjustable upon supports a, the elo and took from it the claim of originality vation of which in guides 6 can be varied to and invention! The circuit court and the augment or diminish the distance of the box circuit court of appeals found that a pat-to the roadway. A handle, F, serves to ent issued to Paul Crochet*June 11, 1880, in maneuver the car over the pavement. This France, had that effect; and we concur in system, especially applicable for streets of the finding. The process described in the compressed asphalt, can be equally employed Crochet patent is for the “preparation and to repair and recharge streets of bitumen. recharging of compressed asphalt road “Résumé: ways." The following is the specification “I claim as my invention my system for of the patent:

reparation and recharge of asphalt road“When it was designed to repair or re ways, presenting as distinctive characterischarge a roadway in asphalt with the means tics the points following: which are now at command, the operator “Ist. The softening of the upper surface generally delimits with a pick the part of the asphalt layer at the part to be re which is to be replaced, and takes there paired, and the removal of such upper surfrom the asphalt; but it is rare that this face by means of a toothed scraper which operation has not for consequence the start striates the part remaining. ing of the adjacent portions which are “2d. Recharging, by the addition upon sound, swelling them up in such wise that at the surface thus softened, of an asphalt the end of a little while it is necessary to layer of convenient thickness, which is repair them in their turn.

stamped by the usual means. "To avoid this I have designed a process "3d. The movable furnace which I have for repairing and recharging asphalt roads combined to such end, according to the con. which suppresses such inconveniences. It ditions described and represented.” consists in reheating the part to be mended The similarity, if not identity, of the patby means of a movable furnace which the ents, is manifest, and it would seem unnecoperator shifts about at the surface of the essary to enlarge upon their resemblance. roadway, until such portion decrepitates They are both methods of repairing asphalt and becomes friable. The upper part of the roadways; they both apply heat to the spot layer of asphalt and that which has been to be repaired; the old material is removed damaged are taken off by means of an iron in the Crochet patent; in the Perkins patscraper armed with small teeth which per-ent it is reduced to the state in which it form the office of a rake; said scraper in was originally laid, then agitated and mixed raising the material forms at the same time with new material. But this agitation and upon the part remaining numerous striae mixing of old and new material is not necwhich render the surface wrinkled, and aug. essary to the method. It may be advisable ment the adherence of the additional over to do or not to do, a witness testified. But thickness which constitutes the recharge. further, the Perkins patent calls for a heat

"The repeated passage of the movable | ing of the surrounding edges of the spot to furnace thereon has equally for its effect to be repaired, to make continuity between the vaporize the water and the humidity which spot 'repaired and the surrounding, paveare found in the asphalt pavement at the ment. The Crochet patent has not this do portion to be repaired or recharged. tail in words, but it is clearly implied. De

"After this preparatory, operation the scribing the prior art, the Crochet patent workman spreads a convenient depth of as- says:

the operator generally phalt in powder-like state and stamps it by delimits with a pick the part which is to bo the ordinary means; because of the soften- replaced, and takes therefrom the asphalt; ing of the subjacent layer, said layer sol. but it is rare that this operation has not ders itself perfectly to the new coat, and for consequence the starting of the adjacent forms with it a thickness without break in portions which are sound, swelling them up continuity. Such repair and such recharg- in such wise that at the end of a little while ing do not at all impair the neighboring it is necessary to repair them in their turn." portions.

His method, he says, “suppresses such in. "It is clearly evident, besides, that the conveniences,” and the repeated passing of same work of recharging can be done over the heating apparatus over the pavement the whole surface of a street, instead of be has the effect that the new coat forms with

ing done in spots, and that it is independent the old "a thickness without break in cono of the depth of the asphalt layer.

tinuity, and it does not at all impair tho *"The heating apparatus which I have ar- neighboring portions." Surely, considering ranged for thus effecting the softening the the method of this patent alone, it did not surface of the asphalt roadways is repre require the exercise of invention to pass to sented on the drawing annexed, in longi. or conceive the Perkins method. Besides, tudinal and transverse sections, Figs. 1 and that conception had the aid of other publi2. It is composed of a box body, the sides cations. In some of them the application A, A, B, B, of which are perforated through- of heat is mentioned as necessary in the out, and the bottom C, whereof is formed a original construction of asphalt pavements, grating, below which there is a metal plate and also in their repair. In a work enD, to radiate the heat over the surface of titled "Asphalt, its Origin, its Preparation, the asphalt. Said plate D is movable to al and its Application," by Leon Malo, publow for the withdrawal of cinders. The box is lished in Paris in 1888, the repair of pave mounted upon the wheels E, the axes o wherements after excavations and deteriorations

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as

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was described. In making excavations two specifications of his patent nor describe it precautions were recommended, and the as part of his method. His apparatus, it is second consisted, the author said

true, is provided with burners by which “In heating the edge rims of the as- blasts of heat may be projected against the phalted bed which limit (i: e., define) the pavement. But his method is independent* whole trench, before pouring in the hot of his apparatus. He says in his patent: powder destined to repair the part lacking." "The heating of the surface may be accom. And again, as to deteriorations :

plished in various ways and by means of “The wheels of vehicles encounter the dis- various forms of apparatus, and while I integrated parts, digging there a hole which have herein shown but one form for accom

-if it be not promptly repaired-finishes plishing the result, yet I would have it unby deepening itself as far as the beton. derstood that I do not limit myself to any The sole remedy for this evil is to remove particular form of apparatus for carrying all the bad part and replace it by new as out my invention." phalt, taking care therein to heat the edges And what is claimed is, as we have seen, of the sound portion so as to obtain a per- the subjecting the spot to be repaired to fect soldering, as we have explained a little heat.” further back."

In further answer to the contention we The counsel claim, however, that the Per- may quote the circuit court of appeals as kins "method is characterized by a new and follows: useful way of applying heat to the pave- “Another objection to the proposed limi. ment, to wit, by sending a flame blast into tation of the claim by making it read 'a direct contact with the pavement surface,” blast of heat' or 'a strong blast of heat,' and that the Crochet patent had no sugges- in lieu of the unqualified word 'heat,' is in tion of that; and, besides, the Crochet pro- the fact that the third claim, which con. cess applied to compressed asphalt road tained the additional words, was withdrawn ways, which was a different asphalt road. by the patentee upon a ruling or declaraway than that to which the Perkins method tion of the Patent Office that the first and was intended to apply. And upon the dif- third claims were the same in substance and ference in the asphalt counsel has dwelt could not both be permitted to remain in long and interestingly, but the argument the case. That was not merely a casual ex• finally comes to a dependence upon the fact pression of opinion by an examiner, but was that the compressed asphalt of the Crochet in effect a requirement that one or the patent disintegrates and crumbles, and if other of the claims be withdrawn, and no overheated becomes inert sand; reason is perceived for not applying the or. whereas the asphalt of the Perkins patent dinary rule. Having voluntarily abanmelts under the action of heat and has “a doned the claim for a method limited to the peculiar property or 'susceptibility;' name- use of 'a blast of heat,' the patentee or his İy, that when its surface is subjected con- assignee may not now insist that a broad stantly to a lively heat, the exposed mate claim, containing no suggestion of such inrial automatically covers itself with a thin, tention, shall nevertheless be subjected by protecting shield, and merely melts and sof- construction to the same restriction. This tens beneath that shield.” The answer to point, in view of the reservation already the contentions is that given by the circuit considered, is unimportant, and might be court of appeals; the patent does not sup- passed, but it is to be observed that if the port them. Before the time of either pat. third claim was withdrawn by mistake, a ent the world knew that heat disintegrated correction should have been sought in the some things and melted others, and we Patent Office, either by a surrender and re cannot concede invention to the thought issue, or possibly by a new application. It that that might be true of different kinds is not within the rightful power of the of asphalt. Indeed, even in the face of the courts to enlarge or restrict the scope of grave testimony contained in this record patents which by mistake were issued in given by unquestionably expert men, we terms too narrow or too broad to cover the find it also difficult to concede that it was invention, however manifest the fact and an exertion of invention to apply heat to extent of the mistake may be shown to the edges of an excavation to make a bond have been." between the old and the new material. To Decree affirmed. devise an instrument to do that well and quickly might be invention, and that Per

(183 U. S. 572) kins achieved by his apparatus patent. TO PABLO MAESE, José L. Lopez, Dionicio allow him more under the facts of this rec

Gonzalez, and Jesus Maria Tafoya, ord would be to give him a monopoly of the

Appts., machine and of that which the machine can do. And this is an answer to the contention based upon the peculiar property of American BINGER HERMAN, Commissioner of the asphalt to interpose a shield against a blast

General Land Office of the United States, ing heat to protect itself from destruction,

and Ethan Allen Hitchcock, Secretary of a virtue in American asphalt, no doubt.

the Department of the Interior of the

United States. If it is a virtue resulting from a peculiar application of heat, there is nothing in the Private land claims-equity public lands. record to show that Perkins was aware of it. He certainly did not reveal it in the 'A condrmation to a town of a claim reported by

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the surveyor general as a clalm by the town gua, and on the west the boundary of the under a Mexican grant cannot be contested by grant to San Miguel del Bado.” a bill in equity against the Land Department

The tract contains 496,446.96 acres of on the ground that the grant, properly inter land, and was afterwards surveyed in 1860, preted, was to private persons instead of to the town, even if the so-called town has no

which survey was approved by the sur legal or corporate existence, since the capac-veyor general of New Mexico. ity of the town to take the patent is settled *The petition was presented to the terri. by the confirmation to it by Congress. torial deputation, approved by that body on

the 23d of March, 1835, and the grant made [No. 226.]

as asked for, with the provision “that per:

sons who owned no land were to be allowed Argued November 6, 7, 1901, Decided Jan- the same privilege of settling upon the uary 6, 1902.

grant as those who petitioned for it, and that 'the pasture and watering places are

free to all.'" A

On the 24th of March, 1835, the acting Appeals of the District of Columbia af

governor and political chief of the terri. firming a decision dismissing a bill in equity tory approved the action of the territorial against the officers of the Land Department. deputation, and directed the constitutional Afirmed.

justice of El Bado to place the parties in See same case below, 17 App. D. C. 52.

possession of the lands prayed for. This

was done on the 6th of April, 1835. Statement by Mr. Justice McKenna: The heirship or legal succession of the * This is a bill in equity brought in the parties to the original grantees is alleged, supreme court of the District of Columbia, and that the complainants "are now the true praying for an injunction against respond and real owners of undivided interests in ents from issuing a patent to the town of said land, the separate interest therein of Las Vegas, New Mexico, of the lands in the each being of the full value of not less than Las Vegas private land grant, or, if a pat- $10,000.” The total value of the land is ent has issued, to declare it to be void, or, $2,000,000. if a patent has not issued, to direct one to The treaty and protocol of Guadalupe Hiissue “to all of said lands, to the heirs, dalgo are invoked, anu it is alleged that legal representatives, and assigns of tho the surveyor general of New Mexico, under said Juan de Dios Maese, Manuel Duran, the provisions of the act of Congress of July Miguel Arculeta, José Antonio Cassaos, 22, 1854 (10 Stat. at L. 309, chap. 103), and those who were associated with them and acting under the instructions of the as the original grantees and as representa- Secretary of the Interior and Commissioner tives of said original grantees; and that of the General Land Office, gave notice to their title in and to said lands may be parties claiming grants from Mexico to prequieted; and said plaintiffs pray for such sent their claims, and thereupon Francisco other and further and general relief as they Lopez, Henry Connelly, and Hilario Gonzamay show themselves entitled to under the lez, on behalf of themselves and a large law and the facts."

number of citizens of the United States, There was a demurrer to the bill, which residents of San Miguel county, presented was sustained, and the complainants declin. their petition claiming the Las Vegas grant. ing to amend their bill, it was dismissed. The surveyor general investigated the

An appeal was taken to the court of ap- claim, found, and reported its validity: peals, and the action of the supreme court His report was approved by Congress and of the district was affirmed. 17 App. D. C. the grant confirmed, “thereby confirming in 62.

and to the original grantees named and des. The suit was brought by the complain ignated in said Las Vegas grant, their heirs ants as heirs of the original grantees, for and assigns, their absolute right and title themselves and others, who, it is alleged, are to all of the lands embraced within the too numerous to be made parties. The de aforesaid boundaries and limits, free of all fendants are sued in their official character. right, title, claim, or control upon the part The facts as they appear from the bill are of the United States." that on the 20th of March, 1835, Juan de It is the duty of the Commissioner of the Dios Maese, Miguel Archuleta, Manuel General Land Office to issue patents in "all Duran, and José Antonio Cassaos, for them- such confirmed private land grants, to the selves and on behalf of twenty-five men, grantees named in the original grant, their presented a petition to the corporation of heirs or assigns, and in the discharge and El Bado, in the territory of New Mexico, performance of his duty therein he has no Mexico, for the grant and possession of the judicial or discretionary powers, but acts tract of land commonly known as Las ministerially alone in the issuing of such Vegas, on the Galenas river, which was de patents." sired for the cultivation of moderate crops It is further alleged in the bill thatand for pasture and watering places.” The “December 17, 1898, upon a petition filed land was under the jurisdiction of El Bado, in the Interior Department of the United and was bounded as follows: "On the States, praying that a patent be ordered to north by the Sappello river, on the south by be issued to the town of Las Vegas to all the boundary of the grant of Don Antonio the land included in said Las Vegas grant, Ortiz, on the east by the Aguage de la Ze 'the Honorable Thomas Ryan, the then act

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