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ing to it in such way as to bring on a peril. The only principle inherent in it is to so act as to enable the other vessel, on whom the duty rests, to adopt with success means of getting out of the way.
It is apparent that, notwithstanding the alleged endeavor of the Jones to keep close-hauled, with the wind S., the Willis, by her starboarding two points, from a course E. by N. to a course N. E. by E., would have gone clear of the Jones, but for the porting of the Jones, as found in the fifth finding of fact, which carried her head around at least five points towards the Willis. The following diagram illustrates the courses and bearings of the two vessels, prior to any starboarding by the Willis and to any porting by the Jones:
It shows the Willis on a course E. by N., and the Jones on a course S. W. by W. W., five points and a half from S. At that time the vessels were three miles apart, or 15 to 18 minutes. When they were two miles apart, or 10 to 12 minutes, after the Willis had twice starboarded, and to N. E. by E., the green light of the Jones bore two points on the starboard bow of the Willis. Then, with any proper falling off of the Jones to hold a S. wind, even to the extent of seven points, or to W. by S., when the Willis was on a course N. E. by E., or two points away from the course of the Jones, there would have been no collision, if the Jones had not ported five points more.
It is contended for the Jones that the Willis should have ported, instead of starboarding. But, as she saw the green light of the Jones on her starboard bow, to have ported would have thrown her across the course of the Jones, as shown by the following diagram:
By starboarding and going away from the green light of the Jones, the Willis took a course of safety, and, in the language of the cases, "determined the risk." Article 12 applies only to cases where the vessels "are crossing so as to involve risk of collision." Even assuming, on the facts found, that these vessels were crossing, so as to involve risk of collision, when they first sighted each other, the Willis "determined the risk" when she had gone off two points by starboarding, and brought green light to green light. This is the point in judgment in The Earl of Elgin, L. R. 4 P. C. App. 1. But it is urged for the Jones that the porting mentioned in the fifth finding was a porting in extremis, and therefore excusable. The finding is not to that effect. The changes made by the Willis are found to have been proper and were proper. This being so, no fault of the Willis induced the final act of
porting by the Jones. To be an excusable mistake in extremis, a pardonable maneuver, though contributing to or inducing a collision, when the maneuver would have been faulty if not excusable, it must be one produced by fault or mismanagement in the other vessel. New York & Liverpool U. S. Mail S. Co. v. Rumball, 21 How. 372, 383; The Nichols, 7 Wall. 656, 666; The Carroll, 8 Wall. 302, 305; The Dexter, 23 Wall. 69, 76; The Bywell Castle, L. R. 4 Prob. Div. 219. The last case is a well-considered judgment by Lords Justices JAMES, BRETT, and COTTON, in the court of appeal, and the rule there formulated is that "where one ship has, by wrong maneuvers, placed another ship in a position of extreme danger, that other ship will not be held to blame if she has done something wrong, and has not been maneuvered with perfect skill and presence of mind."
On the whole case we are of opinion that the decree of the circuit court must be affirmed, but without interest on the amount of that decree.
(112 U. S. 624)
UNION METALLIC Cartridge Co. v. UNITED STATES CARTRIDGE Co.1 UNITED STATES CARTRIDGE Co. v. UNION METALLIC CARTRIDGE Co.1 (December 22, 1884.)
1. PATENTS FOR INVENTIONS REISSUES 1,948, 1,949. Letters patent No. 27,094 were issued to Ethan Allen, February 14, 1860, for 14 years, for an "improvement in machine for making percussion cartridge cases.' The patent was reissued in two divisions, No. 1,948 and No. 1,949, May 9, 1865. No. 1,948 embraced that part of the invention which concerned the mechanism for striking up the hollow rim at one stroke. The original patent and drawings showed such mechanism to be a moving die and a fixed bunter. In No. 1,948 the description was altered so as to state that the bunter might be carried against the die, and its two claims each contained the words "substantially as described." An extension of No. 1,948 having been applied for, it was opposed, on the ground that such arrangement of a fixed die and a moving bunter was a new invention interpolated into the reissue. The commissioner of patents so held, and required such new matter to be disclaimed, as a condition precedent to the extension. A disclaimer was filed, disclaiming the movable bunter as of the invention of Allen. No. 1,918 was then extended by a certificate, which stated that a disclaimer had been filed to that part of the invention embraced in such new matter. In a suit in equity, afterwards brought on No. 1,948, against machines having a fixed die and a moving bunter, for infringements committed both before and after the extension, held, that the effect of the disclaimer was to exclude those machines from the scope of any claim in No. 1,948, without reference to the question whether they contained mechanical equivalents for the moving die and the fixed bunter.
MACHINE FOR MAKING PERCUSSION CARTRIDGE CASES
2. SAME DISCLAIMER.
Allen had not, before the granting of the original patent, made any machine in which the die was fixed and the bunter movable; and it was never lawful to cover, by the claims of a reissue, an improvement made after the granting of the original patent.
3. SAME-ACTS OF JULY 8, 1870, CH. 230, ? 54.
Under section 54 of the act of July 8, 1870, c. 230, (16 St. 205,) a disclaimer could be made only by a patentee who had claimed more than that of which he was the original or first inventor or discoverer, and he could make a disclaimer only of such parts of the thing patented as he should not choose to claim or hold by virtue of the patent.
4. SAME-REISSUE, WHEN NECESSARY.
In so disclaiming or limiting a claim, descriptive matter on which the disclaimed claim was based might be erased; but if there was merely a defective or insufficient description, the only mode of correcting it was by a reissue. The decision in Leggett v. Avery, 101 U. S. 256, cited and applied.
An acquiescence and disclaimer on a decision requiring the disclaimer as a condition precedent to an extension, are as operative to prevent the afterwards insisting on a recovery on the invention disclaímed, as to prevent a subsequent reissue to claim what was so disclaimed.
1S. C. 7 Fed Rep. 344, and 8 Fed. Rep. 446.
Appeals from the Circuit Court of the United States for the District of Mas. sachusetts.
Causten Browne and Edmund Wetmore, for Union Metallic Cartridge Co. B. F. Butler and F. P. Fish, for United States Cartridge Co.
BLATCHFORD, J. Letters patent of the United States, No. 27,094, were issued to Ethan Allen, February 14, 1860, for 14 years, for an "improvement in machine for making percussion cartridge cases. A reissue of this patent was granted, in two divisions, No. 1,948 and No. 1,949, May 9, 1865, the application for the reissue having been filed April 7, 1865. The specification of No. 27,094 set forth two improvements: (1) An arrangement or mechanism to trim the open end of the case of the cap-cartridge, to make the articles all alike and true; (2) striking up or forming the swelled end to form the recess for the priming, as shown at Z, from that of Y, at one stroke, in distinction from spinning them. There were two claims in No. 27,094: (1) The trimming mechanism; (2) striking or forming the hollow rim at one stroke or operation. In reissuing the patent, the trimming mechanism was made the subject of No. 1,949, and the other improvement, (the subject-matter of claim 2 of No. 27,094,) was made the subject of No. 1,948. This suit is brought for the infringement of No. 1,948 alone. So much of the specification and claims of No. 27,094 as relates to the subject of No. 1,948, is copied below on the left hand, and the specification and claims of No. 1,948 are copied below on the right hand, the parts of each not found in the other being in italic:
Original. No. 27,094.
"Be it known that I, Ethan Allen, of the city and county of Worcester, state of Massachusetts, have invented certain new and useful improvements in machinery for making loaded caps or cap-cartridges; and I hereby declare the following to be a full, clear, and exact description of the construction and operation of the same, reference being had to the accompanying drawings, in which Fig. 1 is a top view or plan, and Fig. 2 a side view; the same letters indicating the same parts in both.
"My improvements relate to the construction or formation of the case of the cap cartridge in the form shown at Z, or nearly so, and consist *
in striking up or forming the swelled end to form the recess for the priming, as shown at Z, from that of Y, at one stroke, in distinction from spinning them, as has heretofore been done.
"The construction of my improvements, as shown in the drawings, is as follows: J is the driving pulley to receive motion, and its shaft is provided with cranks or eccentrics at each end, to which the rods, H and H', connect, the shaft turning in suitable bearings in the frame or base, K.
Reissue. No. 1,948.
"Be it known that I, Ethan Allen, of the city and county of Worcester, and state of Massachusetts, have invented certain new and useful improvements in machinery for making loaded caps or cap-cartridges; and I hereby declare the following to be a full, clear, and exact description of the construction and operation of the same, reference being had to the accompanying drawings, in which Fig. 1 is a top view or plan, and Fig. 2 is a side view, and pertains to a machine which is the subject of another reissue of these letters patent.
"My improvements relate to the construction or formation of the case of a metallic cartridge, and consist in an arrangement of mechanism for forming or striking up the swelled end to form the recess for the priming, as shown at Z, from that of Y, at one stroke or operation, in distinction from spinning them, as has heretofore been done.
"The construction of my improve ments, as shown in the drawings, is as follows: K is the base of the machine; J, the driving pulley, which is provided with a crank or eccentric, to which the rod, H', is connected; F is a slide receiving motion by H', and moving in ways, G, G, carrying the
F is a slide receiving motion by H', and moving in the ways, G, G, carrying the mandrel, B, which passes through the movable die, D, which has a spring to keep or move it back towards F, and an enlargement in its center, to facilitate placing the case, A', to be taken by B. The end of D, next to E, has a hole fitting on the outside of the case, A. E is a die with an adjusting screw. Yis a case as it comes from the press, and Z shows the same after being trimmed and set; or, in other words, gone through the following operation, to-wit:
"It" (the case or shell) "is placed in Dor A' to be taken on B and carried forward until its end projects (sufficiently to form its rim) out of D, when F, meeting D, carries it with A in that position up against E, which flattens the end, and forms the hollow rim, as shown in section at Z, Fig. 2; and the motion of J continuing, the parts all return to their respective places, ready for another, which, during the same time, has been prepared, as before described; the finished case dropping between the dies, D and E, or, if sticking in D, is punched out by the first motion of the next one and falls out of its way.
"Having thus fully described my invention, what I claim therein as new and desire to secure by letters patent is
"Second. I claim striking or forming the hollow rim at one stroke or operation, as above set forth and de scribed."
mandrel, B, which passes through the die, D; the die, D, has a spring to keep or move it back towards F, and a hopper-like opening in the upper side to facilitate placing the case, A, to be taken by B and carried into the die, D. The mandrel, B, has a shoulder, a sufficient distance from the end, to allow it to enter the cartridge shell just the right distance, and leave enough metal to be pulled into the head of the cartridge. The die, D, is just the right size to be filled by the shell, A, when pressed into it by the punch or mandrel, B. E is a die with an adjustable screw, and the case may be carried against it to form the head or rim, or that may be carried against the die, D, by similar mechanism to F and H'; Z is a case or shell after being headed, forming the cavity for the fulminating powder.
"The operation is as follows, viz., motion, being given to pulley, J, is communicated through H' to F and B, and the cases or shells are placed in the recess or in an inclined tube, which feeds them to the punch, B. The shell is taken on the punch, B, and carried through the die, D, until the end projects sufficiently to form its rim, when F, meeting D, carries it with A in that position up against E, which flattens the end and forms the hollow rim, as shown in section at Z, Fig. 2; and, the motion of J continuing, the parts all return to their respective places, ready for another shell, which, during the same time, has been placed in position, as before described, and the punch, B, taking on another shell, is carried into the die, D, and presses out the one before headed, which drops between the dies, D and E, when the operation is repeated as before.
"I claim the mandrel which carries the cartridge shell, in combination with the die, D, which admits the same, and against which the closed end of the cartridge shell is headed, substantially as described.
"Second. I claim the die, D, constructed and operating for the heading of cartridge shells, substantially as described."
The following are the drawings of the original and of the reissue:
The Allen machine, as organized for heading, and making a flange upon, cartridge shells, consists mainly of a mandrel, a die, and a bunter, which are combined together in order to operate. The mandrel is a rod with a shoulder upon it, the rod beyond the shoulder being of such diameter as to enter the cartridge shell which is to be headed with a pretty close fit, and the shoulder being at right angles to the rod, and formed to support the edge of the shell at the open end of the cartridge during the operation of heading. The die is a block of metal with a hole in it, of just the size of the outside of the shell, and the axes of the die and mandrel are in the same line. The bunter is a piece of metal so located that it is opposite one end of the die. The machine is also provided with a gutter, which is a prolongation of the hole in the die, but open on top, into which shells are to be introduced prior to being acted upon by the machine. When an unheaded shell is placed in this gutter, with the mandrel as far retracted from the die as possible, the mandrel advances, inserts itself into the shell, and shoves the shell into the die with its closed end projecting beyond the die a sufficient distance to afford metal from which the flange may be formed. In this position the outside of the shell is supported by the die, the inside of the shell by the mandrel, and the edges at the open end of the shell by the shoulder on the mandrel. The die, mandrel, and shell then advance together, and the closed end of the shell is forced against the bunter, the shell being thus squeezed down so as to form the flange of the cartridge. The mandrel then retreats, and, as it retreats, slips out of the shell, leaving the headed shell in the die, and, when the mandrel is fully out of the shell, the die is in its old position. The shell cannot follow the mandrel, owing to the fact that it is now headed, and that its head is on that side of the die which is furthest from the mandrel. After the mandrel has retreated sufficiently far from that end of the die which is nearest the mandrel, a second unflanged shell may be placed in the gutter. The mandrel then ad