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Opinion of the Court.
District Judge Orr, "Originally, scaffolding was made to rest upon the ground and was increased in height as the building of the structure demanded." The first forms of scaffolding which constituted the prior art are described by a witness as "the thrust out scaffold, the pull scaffold, the timber scaffold; that they were built right up to the front of the building." In 1900, he testified, "a new device came on the market, or a new structure, and, in place of building up from the ground, they hung a rigid iron frame from the upper stories of the building. That could be used on three or four stories sometimes. It was heavy, inconvenient to handle, and did not meet with very great success, although it did seem to be an improvement over the old poles. Then there came another form of scaffolding, which was a suspended wire platform scaffold, suspending the wires from the top of the building. Then there came the Cavanagh overhead scaffolding machine. That machine became fairly well used, after being introduced, and was apparently a great improvement over any other. Then Murray came in the market with his platform machine; a machine operated from the platform, the fastening of the wire that supported the platform being from above, the wire being secured to the out-riggers from the upper part of the building. Then the Henderson machine, supported by cables from the upper part of the building, and similar in a great many respects, except that the machines were placed in the opposite position, enabling you to make a scaffold of any width, which would seem to be the latest."
The Murray patent, therefore, is the step in the prior art preceding that made by Henderson and a comparison of the latter's patent with it, the Murray patent, is immediately indicated.
Murray describes his invention to be of "new and useful Improvements in Adjustable Scaffolds." The object of it, he said, was to provide such a scaffold as would
Opinion of the Court.
"permit of adjustment at any height during the construction of a building or the repair thereof." And he claimed, "The combination with two bars having means for detachably securing them to a building, of a platform, frames on said platform carrying means operable from the platform and having connections adapted to be connected to one of said bars for raising the platform, and supporting means on said frames extending above the said bar when the platform has been fully raised and adapted to detachably engage said bar and rigidly support the platform therefrom, whereby, the platform may be connected to one bar by the raising means and raised to a level to engage the supporting means with said bar and may then remain supported by said bar while the other bar is placed at a higher level and the raising means secured to the latter, the bars thus becoming alternately points of raising support and of rigid support for the platforms."
On page 29 is the illustrative diagram of the claim. Henderson describes his invention as "certain new and Improved Scaffold-Supporting Means," and further says it relates "to an improved means for supporting scaffolds used in connection with the construction of buildings and their repair." In other words, the patent is, as the Murray patent is, for improvement of scaffold supporting means. And the details given by Murray, or necessarily implied by him, and the inevitable adjuncts "of cross beam and floor piece" are made elements in the combinations claimed in three claims. There is a change from the Murray hoisting device and it is described to consist "of a continuous U-shaped metal bar extending around the under side of and upward from the associated beam, ." The continuity of metal is the novel element asserted. Counsel emphasize it, not so much for itself as for what it permits. It permits according to counsel, a "hinged or loose jointed connection between the putlog [called in the claims "cross beams"] and the
Opinion of the Court.
frames that support the putlog and the hoisting mechanism," and counsel say that this is a "separate and distinct entity from the elements of the Murray patent, differing in structure, function and result produced." And of this it is insisted there was no suggestion in the Murray patent, it containing but a single claim and a
single idea, "the idea of supporting the scaffold to outriggers by means of auxiliary bars or rods," so that the platform or scaffold by the lengthening of the cables can be raised to a greater height than before. In other words, the assertion is that Murray invented nothing and saw nothing in his device but means of raising the scaffold, and, to use counsel's word, all other "functions" were
Opinion of the Court.
beyond his vision. Or again, and to bring out clearly counsel's contention, "Henderson did not do what Murray did. Murray provided means for supporting a platform temporarily on one set of outriggers while the cables were being adjusted to a higher set of outriggers. That is all Murray did, and that was embodied in the one claim of the patent and that is what Henderson did not do. Murray, on the other hand, never suggested the idea of making a hinged or flexible connection between the putlogs and their supporting frames." The utility of this construction is the final assertion, and that the continuity of metal of the stirrup adds strength, and the loose jointed connection of the putlogs with it gives "flexibility longitudinally and also transversely of the platform" and "enables the operator to raise the scaffold machines one at a time, allowing the putlogs to tip or hinge over the support of the U-frame, leaving the machine to stand erect at all times." The advantage of this is emphasized in various ways and the construction, it is insisted, quoting the patent, "secures the greatest possible amount of security." Claims 1 and 3 are inserted in the margin. The following is an illustration of them taken from brief of counsel. [See p. 31].
It is further contended that the arrangment of the hoisting device parallel to a building, instead of at right angles
1"1. A scaffold consisting in the combination of cross beams, floor pieces extending between such beams, and a hoisting device associated with each end of each beam, each hoisting device consisting of a continuous U-shaped metal bar extending around the under side of and upward from the associated beam, and a hoisting drum rotatably supported by the side members of such bar."
"3. A scaffold consisting of a plurality of U-shaped bars arranged in pairs, a cross beam laid in and extending between each pair of such U-shaped bars, a floor laid upon said cross beam, a drum rotatably supported between the upwardly extending side members of each of said U-shaped bars, and means for controlling the rotation of said drum,"
to it as in the Murray patent, gives more room to the working masons and mechanics, and contributes therefore to their security. This advantage was asserted in the patent, the others were not, nor displayed or counted on. They, however, may be conceded. The fact of non-display in the patent, while it does not militate against his claims for the advantages, causes surprise at least, considering the emphasis that is now put upon them and the assertion that they distinguish and make superior his mechan
isms to all that preceded them. However, we may concede to counsel, for the sake of the argument, all of the uses and excellences of the patent, even though not discerned by Henderson, but his pretensions, whether at first hand or second, his or those of his counsel, must be subjected to the test and estimate of the prior art and so subjecting them we can discern no exercise of invention. The changes were simply mechanical, easy to discern, and as easy to make, incidental entirely to the main idea of Murray which was, as was declared by him, to provide a scaffold that would "permit of adjustment at any height during the construction of a building or the repair thereof" -a scaffold which might "be readily moved from one