(29 ing means on said frames extending above the | so much for itself as for what it permits. It said bar, when the platform has been fully permits, according to counsel, a "hinged or raised and adapted to detachably engage said loose jointed connection between the putlog bar and rigidly support the platform there(called in the claims "crossbeams") and the frames that support the putlog and the hoistis a "separate and distinct entity from the ing mechanism," and counsel say that this 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 from, 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." The following is the illustrative diagram idea of supporting the scaffold to outriggers of the claim: by means of auxiliary bars or rods," so that 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 #30 Henderson describes his invention as "cer- | the platform or scaffold by the lengthening tain new and improved scaffold-supporting of the cables can be raised to a greater 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 crossbeam 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 word, all other "functions" were beyond his vision. Or again, and to bring out clearly counsel's contention: Murray provided means for supporting a plat"Henderson did not do what Murray did. form 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 hinge or flexible connection between the putlogs and their supporting frames." (41 Sup.Ct.) 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 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.1 The following is an illustration of them taken from brief of counsel: (This cut appears on page 31 of 254 U. S. Reports) sel, for the sake of the argument, all of the uses and excellencies 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 repairing thereof"-a scaffold which might "be ⚫32 readily moved from one *position to another by the workmen thereon without interfering materially with the work being performed," and one "in which different supports are employed," and "in which the shifting from one set of supports to another set" might "be accomplished without interfering in any degree with the workmen thereon, or their work." A glance at the diagram which we have given will show that he accomplished his purpose and the way he accomplished it; a glance at the diagram we have given of the Henderson device will show that it is a substantial imitation of Murray's scaffold, the variations being only mechanical. The chief difficulty we have found in the case is the plausibility of the arguments of counsel, and that it secured the assent of the Circuit Court of Appeals for the Eighth Circuit and other courts, and strength from such assent. Decree affirmed. (254 U. S. 32) NEW YORK SCAFFOLDING CO. v. CHAIN BELT CO. et al. (Argued Oct. 7 and 8, 1920. Decided Nov. 8, Patents 1920.) No. 23. 172-Patentee entitled to benefit of formal changes. A patentee is entitled to all of the benefit that he claimed for his device or that can be given to it by formal changes. building, instead of at right angles to it, as in the Murray patent, gives more room to the working masons and mechanics, and therefore contributes 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 nondisplay 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 mechanisms to all that preceded them. However we may concede to coun1"1. A scaffold consisting in the combination of crossbeams, floor pieces extending between such Suit by the New York Scaffolding Combeams, and a hoisting device associated with each end of each beam, each hoisting device consisting pany against the Chain Belt Company and 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." On Writ of Certiorari to the United States Circuit Court of Appeals for the Seventh Circuit. Egbert Whitney. Decree for complainant *33 "3. A scaffold consisting of a plurality of U-shaped bars arranged in pairs, a crossbeam laid in and extending between each pair of such U-shaped bars, *Messrs. Frederick P. Fish, of Boston. a floor laid upon said crossbeam, a drum rotatably Mass., Frank Chase Somes, of Washington, D. supported between the upwardly extending side members of each of said U-shaped bars, and means C., and C. P. Goepel, of New York City, for of controlling the rotation of said drum." petitioner. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Messrs. Robert H. Parkinson and Wallace of recovery in New York Scaffolding Co. v. R. Lane, both of Chicago, Ill., for respond- | Liebel-Binney Construction Co., No. 22, just decided, and there we estimated its inventive quality as tested by the prior art, and as rep ents. Mr. Justice MCKENNA delivered the opin- resentative of that we took the patent of Wilon of the Court. liam Murray, accepting it as an advance upon the prior art. Suit by petitioner against Chain Belt Company et al. for infringment of a patent considered in No. 22. The bill contains the usual allegations, and prays for an accounting, for damages, and injunctions, preliminary and final. A copy of the opinion of the Circuit Court of Appeals for the Eighth Circuit in the suit of the Scaffold Company against Egbert Whitney, expressing the judgment of the court sustaining the validity of the patent and adjudging Whitney to be an infringer of it, is attached to the bill. *35 We need only add to what was there said that our conclusion is confirmed by Henderson's testimony, which *we insert in the margin somewhat fully, as it cannot be adequately represented in condensation or by paraphrase. From his testimony it is cer ⚫36 1 After stating the schools and colleges he had attended, and that he was admitted to the bar in 1910. he testified as follows: "Q. 3. Will you state when you first acquired any knowledge of the scaffolding business and how it came about? "A. The first time I had any occasion to con The answer denied invention and sets forth a number of patents as anticipations, among others, a patent to William Murray. A dis- sider scaffolding on buildings was about in Febmissal of the suit was prayed. A trial was had upon the issues thus made, which resulted in an interlocutory decree awarding an injunction, adjudging infringement, and an accounting. The injunction decreed is as follows: "That an injunction be issued under the seal of this court unto the said Chain Belt Compa *34 ny, and the said Egbert Whitney, enjoining them, and each of them, their several agents, officers, employés, and all persons in privity with them, and each of them, from making or selling, or causing to be made or sold, the machine known as 'Whitney Scaffold Hoist Machines' and 'Little Wonder' machines, to be used in the combinations of claims 1 and 3 of said U. S. patent No. 959,008, or from using or causing said machines to be used in the combinations of said claims, or from infringing upon said claims in any manner whatsoever." ruary, 1910-February, 1909. I was having dinner He further testified that Mr. Merrill called his attention to devices that were then in use in Chicago at the Blackstone Hotel and that shortly aft er he went down to the hotel. He further testified: These "A. On the north side of the building there was a scaffold suspended by overhead outriggers, cables led down to a drum, the cable passed over a little pulley wheel on the top cross member of the scaffold down to a drum, and the drums were in pairs opposite at right angles to the building. drums were supported above a U-frame which was held in place, bolted, with two angle irons, the bolts passed through the U-frame, and then the planking were laid along the scaffold on top of the angle irons which was bolted to the U-frames and the drums were operated by means of the ratchet lever, to which the men put a pipe, making an extension, and pumped it up and down. The Circuit Court of Appeals agreed with the District Court that the Henderson patent exhibited invention, expressing the view, however, that, while its advance was slight, it was "not so wholly wanting in invention or novelty as to justify a finding contrary to the presumptive validity of the grant to him." The court fortified its views by the decision of the Circuit Court of Appeals of the Eighth Circuit in New York Scaffolding Co. v. Whitney, 224 Fed. 452, 140 C. C. A. 138, citing, however, to the contrary, the decision of the Circuit Court of Appeals of the Third Circuit, in New York Scaffolding Co. v. Liebel-Binney Construction Co., 243 Fed. 577, 156 C. C. A. U-frame and the bolts passed through the U-frame. 275, the decision we have just affirmed. 254 U. S. 32, 41 Sup. Ct. 21, 65 L. Ed. The court, however, decided that the decree was "erroneous in finding infringement in the manufacture or sale or in any use of the Little Wonder machine." The decree of the District Court was reversed, with directions to enter a decree in accordance with the views expressed. The Henderson patent was made the basis (41 Sup.Ct.) *37 It will be observed that the Circuit Court of Appeals and the District Court disagreed tain that his scaffold did not cause him, sion he was prompted. Beyond what was sleepless nights or laborious days. He was necessary to that he exerted no vision or not experienced in the art of which it is an conception. He had had no experience in example. It may be that the conceptions of the art, and what knowledge of the Murray invention cannot be tested by such, or by scaffolding he had was obtained by a 30 minmoments of time, and that originality does utes' observation of it in operation. We yield to the assertion of counsel that he cannot *need the aid or delay of drudgery; but not be deprived of an advantage because he one is forced to think that, where a change did not discern it, but the same concession is readily made in any composite instrumen- must be given to Murray. He was entitled tality, the change is not the prompting or to all of the benefit that he claimed for his product of invention. Indeed, it is a common device, or that can be given to it by formal experience in patent cases that mere mechani- changes. cal facility can alter or change the form in which originality and merit expressed themselves, and assert for it the claim of invention. This case is an example of such pretension. in their views of the relation of the Little We may repeat counsel's question, and ask: Wonder machine to the Henderson deviceWhat did Henderson do that Murray did not the latter considering it an infringement; do? He made the U-frame which supported the former determining otherwise, and to the hoisting device of continuous metal, in- that extent reversing the decree of the Disstead, as Murray did, of several pieces riv- trict Court. Both courts, however, concurred eted together, and in the stirrup which it in ascribing invention to the Henderson deformed he rested the putlogs or beams, vice. In this both courts erred, and the deloosely making a hinged joint connection be- cree of the District Court is therefore retween the stirrup and the hoisting machines, versed, and the case remanded to that court, with a resulting flexibility. This conse with directions to dismiss the bill of comquence and its advantage, if it have such,2 plaint, on the ground that the Henderson patit is admitted he did not discern, and nat-ent is invalid; it exhibiting no invention. urally. His purpose was evasion. To eva So ordered. *38 ment on the winch, and instead of bolting the windlass to the putlog, I found I could utilize pieces of 2x10 around the building for putlogs and place them in the U-frame, and would make the scaffolds easier to put into the building and much simpler to dismantle-to take off. "Q.. Where did you get your knowledge of the U-frame being used in this line of work? "A. I saw U-frames on the Blackstone Hotel. It was just an ordinary stirrup." middle of May. Mr. Merrill called me up and Coun There is a denial of advantage, and it was admitted at the argument that rigidity of the putlog and frame was sometimes resorted to. sel tried to minimize the necessity or practice by saying that it was accomplished by a tenpenny nail. Manifestly it was the effect and its necessity or advantage which were important, not the means of their accomplishment, and the necessity or advantage cannot be estimated by the size of (254 U. S. 57) SEABOARD AIR LINE RY. CO. et al. v. UNITED STATES et al. *59 *Mr. Justice DAY delivered the opinion of the Court. In this case a petition was filed in the (Argued Oct. 8 and 11. 1920. Decided Nov. District Court of the United States for the 8, 1920.) No. 27. 1. Carriers 32(2)-Free switching on shipments only from competitive points to industries on competitive lines unlawful. The practice of three carriers as to traffic from points south of Richmond, whereby each absorbed, for shipments from competitive points only, switching charges to industries in Richmond on the lines of such carriers and similarly located with regard to the interchange tracks of the three carriers, but refused to absorb the switching charge on deliveries to similarly located industries on noncompetitive lines, held a violation of Interstate Commerce Act, § 2 (Comp. St. § 8564), not being a like and contemporaneous service of a like kind of traffic under similar circumstances and conditions. 2. Commerce 95 Findings of Interstate Commerce Commission as to what is discrimination binding, if not arbitrary. The findings of the Interstate Commerce Commission on questions of discrimination in service can be disturbed by judicial decree only where its action is arbitrary or transcends the legitimate bounds of its authority. 3. Commerce 88 Ruling by Interstate Commerce Commission as to discrimination held not beyond its authority. The condemnation by the Interstate Commerce Commission of a practice of certain competing carriers of absorbing switching charges only when the line-haul carrier competes with the switching line, and refusing to absorb such charges when there is no such competition, as being a violation of Act to Regulate Commerce, § 2 (Comp. St. 8 8564), held not arbitrary in character or beyond the commission's authority; the ruling being limited to cases in which, or to the extent to which, the service is similar. Appeal from the District Court of the United States for Eastern District of Virginia. Petition by the Seaboard Air Line Railway Company and others against the United States and others, to enjoin an order of the Interstate Commerce Commission. From a denial of the petition, and dismissal of the bill (249 Fed. 368, 162 C. C. A. 140), petitioners appeal. Affirmed. *58 *Messrs. Claudian B. Northrop, of Chevy Chase, Md., and Frank W. Gwathmey and R. Walton Moore, both of Washington, D. C., for appellants. Eastern District of Virginia to enjoin an order of the Interstate Commerce Commission concerning the absorption of switching charges on the lines of the Seaboard Air Line Railway Company, the Seaboard Air Line Railway, Southern Railway Company, and Atlantic Coast Line Railway Company, within the switching limits of these roads as established at Richmond, Va. [1] The Commission's order was made upon a petition of the Richmond Chamber of Commerce, averring that the practice of the railroads was discriminatory and unlawful, and violative of section 2 of the Act to Regulate Commerce. From the facts found by the Commission it appears that the appellant railroad companies bring freight from the South to Richmond, Va., where the same is delivered to industries in the switching limits of that city. If the freight is received at a point served by any two or more of the carriers, the switching charge is absorbed if the freight be delivered on the line of either; but if the delivery is to an industry served only by a noncompetitive carrier the switching charge is not absorbed. The Commission illustrated the point by an example: "Oxford, N. C., is a point reached both by the Southern and the Seaboard, but not by the Chesapeake & Ohio. Norlina, N. C., is a local point on the Seaboard. Assume that industries A, B, and C [referring to a diagram] on the Seaboard, the Southern, and the Chesapeake & Ohio, respectively, are similarly located with regard to the interchange tracks of the three carriers at Richmond. On traffic from Oxford to industry B on the Southern, the Seaboard will absorb the Southern's switching charges. But on traffic from Oxford to industry C, on the Chesapeake & Ohio, the Seaboard refuses to absorb the Chesapeake & Ohio's *60 switching charges. On traffic from and to Norlina, a local point, however, the Seaboard refuses to absorb all switching charges whatsoever to any off-line industry." The order complained of directed the three carriers to cease and desist, on or before August 1, 1917, and thereafter to abstain, from absorbing switching charges on certain interstate carload freight at Richmond, Va., while refusing to absorb such charges on like carload shipments for a like and contemporaneous service under substantially similar circumstances and conditions; such practices having been found in a supplemental report to be unjustly discriminatory and unlawful within section 2 of the Act to Regu Mr. Blackburn Esterline, of Washington, late Commerce, and— D. C., for the United States. Mr. Charles W. Needham, of Washington, * D. C., for Interst. Com. Com'n. "to establish, on or before August 1, 1917, and thereafter to maintain and apply uniform regulations and practices for the ab For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |