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as readily to be torn away and detached from the stamp. Although I have shown and described a lining-paper, between which and the stamp or surface paper the metal slip is held, yet I may dispense with such lining and employ a thicker paper for the stamp, the metal strip in such case, if preferred, being confined or held to it by having its ends pass through slits made in the paper for such purpose. Or the metal piece may have points or projections at its ends or corners, or elsewhere, which may be forced or passed through the paper and clinched on the under side. For the purpose of readily separating the circular stamp from the sheet, I perforate it about its periphery with anyone suitable slits, cuts, or openings adapted to the thickness or texture of the paper. I also prefer to have the stamps prepared with blanks and dotted lines, on wbich the collector, gauger, and store-keeper may place their signatures, as shown in Fig. 1.
"It is to be understood that the metallic or other slip, the stub or check part of the stamp paper, and also the stub of the coupon piece, are all to be consecutively numbered alike for each alphabetical series, the capital letter, A, in the drawings indicating the alphabetical series, and the number immediately to the right thereof indicating a number in the consecutive numbers of such series. For convenience I prefer to have the stamps, after being printed, bound up in book form, after the manner of merchants' or bankers' checkbooks, so that each stamp, as cut out, shall leave in the book its corresponding marginal piece or stub, having thereon a record of letters, figures, marks, etc., according with those upon such stamps.
"I claim (1) a stamp, the body of which is made of paper or other suitable material, and having a removable slit of metal or other material, displaying thereon a serial number or other specific indentifying mark corresponding with a similar mark upon the stub, and so attached that the removal of such slip must mutilate or destroy the stamp. (2) In a paper revenue stamp for indicating the contents of a cask, and having thereon a number designing the number of gallons or other measure, providing the stamp, and also its stub or check-piece, with corresponding digital numbers, to be punched out to indicate the units, substantially as described. (3) In combination with a paper stamp having a check-piece or stub, from which it is detached when applied for use, a coupon slip, whose coupons are to be secured to the face of the stamp, as and for the purpose described.”
The following is a copy of the face of the tax-paid internal revenue stamp ased by the appellant, and claimed to be an infringement of the patent:
As described by the complainant's witnesses, this stamp “is composed of a single thickness of paper, on the face of which the number and registering marks are conveniently placed. On the back of this stamp is a piece of paper somewhat wider than the surface, on which the number and registering marks are printed. The two edges of this back-piece are caused to adhere to the back of the stamp, one above and the other below that portion of the surface which indicates the number, contents, etc. The back of the stamp, between the two edges of this strip or back-piece, is free and loose. The object of this is that when the back of the stamp is coated with adhesive material and attached to the barrel, that portion of the surface of the stamp which is covered by the strip or back-piece will not adhere to the barrel; hence, after the stamp is secured to the barrel, that portion of the stamp on which are the reg. istering marks may be removed, and preserve the marks and figures thereon. the removal of that part defacing the stamp as well as preserving the record, and this can be done because that portion of the stamp which is removed is prevented from adhering to the barrel. To remove this portion it is only
wocessary to separate that portion from the body at its two edges.” This is marked in the record as “Complainant's Exhibit Hollister Revenue Stamp." The present controversy relates to the first claim of the Locke patent, in respect to which alone the decree appealed from established an infringement. It is as follows: "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 inust mutilate or destroy the stamp.' One of the defenses relied on by the appellant is thus stated in the answer, and, in matter of fact, is by stipulation admitted to be true: “First. That any and all acts complained of in said bill by the said petitioner, as done by the respondent, were done and performed by him in the discharge of his duties as collector of internal revenue for the United States for a designated collection district of the state of Con. necticut, and by direction of the commissioner of internal revenue, an officer of the treasury departinent of the United States; that any revenue stamps by's him used have been furnished by the bureau of internal revenue, of which said commissioner is the official head, for use in the discharge of said duties as collector, and the same have been used solely as a means of collecting the taxes due to the United States, which said taxes have been imposed by the laws of the United States, and the manner of said collection, as followed by said collector, regulated and authorized by such laws; that said respondent has acted as such collector by virtue of legal appointments thereto by the president of the United States, duly confirmed by the senate of the United States, for and during all the times mentioned in said bill of complaint.”
It was authoritatively declared in James v. Campbell, 104 U. S. 356, that the right of the patentee, under letters patent for an invention granted by the United States, was exclusive of the government of the United States as well as of all others, and stood on the fuoting of all other property, the right to which was secured, as against the government, by the constitutional guar. anty which prohibits the taking of private property for public use without compensation; but doubts were expressed whether a suit could be sustained, such as the present, against public officers, or whether a suit upon an implied promise of indemnity might not be prosecuted against the United States by name in the court of claims. If the right of the patentee was acknowledged, and without his consent an officer of the government, acting under legislative authority, made use of the invention in the discharge of his official duties, it would seem to be a clear case of the exercise of the right of emi. nent domain, upon which the law would imply a promise of compensation, an action on which would lie within the jurisdiction of the court of claims, such as was entertained and sanctioned in the case of U. 8. v. Great Falls Manuf'g Co., ante, 306, decided at the present term. And it may be that, even if the exclusive right of the patentes were contested, such an action might be brought in that court involving all questions relating to the validity of the patent; but as we have concluded to dispose of the present appeal upon other grounds, it becomes unnecessary to decide the question arising upon this defense. It is referred to only for the purpose of excluding anysin. ference that might be drawn from our passing it over without notice.
The course of business in the collection of the revenue upon distilled spirits, so far as the use of these stamps is involved, is explained by Mr. Chapman, a witness for the defendant below, who had been chief of the stamp division in the internal revenue office. He says:
"After spirits have been produced, they are drawn from the cistern into the barrels, and there is attached to each barrel a stamp called a warehouse stamp, together with certain marks and brands put on simultaneously with the stamp; this stamp is an oblong piece of paper properly engraved, with blanks in which are inserted the numbers of the package, the number of wine and
proof gallons contained therein, name of the distiller, location of the distillery, and are signed by the storekeeper and gauger on duty at the distillery. This stamp is merely used as a check, and does not represent a tax; the stamp consists of but one piece of paper about three by two inches, and is attached by paste or other adhesive material, and by tacks at the corner and center, by the gauger on duty at the distillery. This stamp (warehouse) has been in use from 1868 to the present time, and no change has been made in the construction of the same, the only changes being in the quality and kind of paper used and the designs of the engraving.
“The package is then removed to the bonded warehouse of the distillery, where it remains until the distiller files with the collector of the district a paper, called an entry for withdrawal; this paper is accompanied by the amount of the tax upon the spirits contained in the package; the collector thereupon fills out, signs, and forwards to the gauger the tax-paid stamp, which is a piece of paper nearly square, upon the face of which is engraved the body of the stamp, together with nine coupons, of which stamp and coupons, with the stub which remains in the books from which the stamp is cut, complainant's Exhibit Hollister Revenue Stamp is a copy. From 1868 until about 1871, this stamp, which has always been called the tax-paid stamp, was constructed of two pieces of paper; before the stamp was printed, the paper of which the body of the stamp was composed was perforated with a round aperture, about one and a half inches in diameter; to the back of the paper was then attached, by paste or mucilage, a piece of tissue paper, completely covering said aper ture; the stamp was then printed, the engraving covering both the body of the paper and so much of the tissue paper as appears through the aperture. From about 1871 to 1875 the stamp was composed of but one piece of paper, the use of the tissue paper and the aperture having been abandoned. In August, 1871, there was added to the tax-paid stamp a piece of paper, which was pasted by its edges upon the back thereof, as shown in complainant's Exhibit Hollister Revenue Stamp. Stamps of the latter character have been in use from August, 1875, to this date.
“On receipt of the tax-paid stamps by the gauger, he proceeds to alix them to the head of the barrel, together with certain marks and brands; he, together with the storekeeper, having first signed the same at the places indicated in complainant's Exhibit Hollister Revenue Stamp. The gauger puts this stamp on the barrel by means of some adhesive material and tacks; he then cancels it by the use of a stencil-plate, imprinting across the face of the stamp and extending over each side upon the head of the barrel waved lines; he also imprints upon the head with a stencil-plate his name and official designation. The whole surface of the stamp is then varnished with a transparent varnish; no varnish can be used which is oily enough to affect the paste. The package is then removed from the warehouse and passes into the custody of the distiller or owner. If the owner desires to purify the contents of the package, it is then taken to the establishment of a duly authorized rects fier of distilled spirits. The rectifier then notifies the collector of the district that he desires to dump, for rectification, the contents of certain specified packages, whereupon the collector directs a gauger to proceed to the rectify. ing establishment and gauge the specified packages. When the packages are gauged, the gauger is required by regulations to cut from the tax-paid stamp a designated portion thereof, and transmit the same to the collector, with a report of his operations. The packages are then dumped into the tubs of the rectifier, and the identity of their contents lost. * The portion of the tax-paid stamp detached or cut and forwarded by the gauger, as heretofore described, includes the serial number of the stamp, the date on which the tax was paid, and the number of proof gallons; the number of the cask, the lo cation of the warehouse, and the person or firm to whom delivered, and the signature of the collector; the part so cut out is over the paper back.”
The employment of the paper backing in the stamp used by the appellant, whereby the part to be cut out is prevented from adhering to the head of the barrel, and the arrangement of a part of the stamp so as to indentify the package with that described in the stub, the removal of which destroys the stamp so that it cannot be used again, constitutes the alleged infringement of the first claim of the Locke patent, which covers every stamp within that description.
The counsel for the appellee describes “the Locke stamp as a combination of three parts: (1) a part which is designed to become a stub when the stamp proper is separated therefrom, and displays a serial number; (2) a constituent part of the stamp proper which is designed for permanent attachment to the barrel; (3) a constituent part of the stamp proper displaying the same identifying serial number as the stub, which part, after the stamp proper has been affixed to the barrel, bears such relation to the permanent part that it can be so removed therefrom as to retain its own integrity, but inutilates and thereby cancels the stamp by its removal.” In this combination it will not be questioned that the first and second elements were well known, and that the third, so far as its contents are identical with those on the stub, is not new. The question turns on that feature of the third element where, by a removable part of the stamp proper, the contents of which indentify the stamp with the stub after the stamp has been attached, can be so removed as to retain its own integrity, but mutilates and thereby cancels the stamp by its removal. This is what we ascertain to be the precise idea embodied in the invention described and claimed in the patent, and which, although we find to be new in the sense that it had not been anticipated by any previous invention, of which it could therefore be declared to be an infringement, yet is not such an improvement as is entitled to be regarded in the sense of the patent laws as an invention.
In reaching this conclusion, we have allowed its due weight to the presumption in favor of the validity of the patent arising from the action of the patent-office in granting it; and we bave not been unmindful of the fact, abundantly proven, and indeed not denied, that the adoption of the present tax-paid stamp, in lieu of that previously in use by the internal revenue bu. reau, has proven its superior utility in the prevention of frauds upon the reve
The testimony on that point of the commissioner of internal revenue from his official reports is quite conclusive. In his report for 1875, he mentions the adoption of “new regulations in regard to the use of tax-paid stamps, by which a portion of the stamp is cut out at the time of dumping and returned with the gauger's report,” and says: “This effectually destroys the stamp and prevents its reuse, while, at the same time, a sufficient amount of the en. graving is shown upon the slip to determine whether the stamp is genuine;" and, in 1876, that official reported that “the plan of requiring the return of a portion of the tax-paid stamps, whenever a package to which it is attached is dumped for rectification, has been found to be such a valuable prevention of fraud that it has been extended to include all stamps for rectified spirits and wholesale liquor dealers' stamps. These three varieties of stamps for distilled spirits are now prepared at a trifling additional cost, with a paper back affixed to each in such a way that the portion of the stamp containing all the important data can be cut therefrom and filed with the commissioner or collector, thus furnishing conclusive evidence of the destruction of the stamp, (rendering its reuse impossible,) and furnishing also evidence as to the contents of the package bearing the stamp. It is believed that this system affords the government a very effectual protection against the perpetratione of frauds in connection with the collection of the tax on distilled spirits."
Such an increased utility, beyond what had been attained by devices previ. ously in use, in cases of doubt, is usually regarded as determining the question of invention. But in the present case we are not able to give it such effect. No change, it will be observed, was in the character of the