Whether the power to certify exists therefore must be decided by a consideration of § 250 of the Judicial Code which deals with the right to review by error or appeal. As, when that section is considered, it appears that its third paragraph in express terms confers power on this court to review on error or appeal judgments or decrees of the court below "in cases involving the construction or application of the Constitution of the United States, or the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority," it is at once demonstrated that the court below was devoid of any authority to make the certificate and hence that this court has no jurisdiction to answer the questions.

But it is suggested that, as it was held in American Security & Trust Co. v. District of Columbia, 224 U. S. 491, that the power conferred upon this court by paragraph sixth of § 250, to review on error or appeal judgments or decrees of the court below "in cases in which the construction of any law of the United States is drawn in question by the defendant," embraced only the construction of laws of general operation as distinguished from those which were local to the District of Columbia, therefore the grant of power to determine the constitutionality of acts of Congress must be treated as applying only to such acts as are general in character, of which it is insisted the act involved in this case is not one.

But the contention disregards the suggestion of a difference between the two subjects which was made in the American Security Case, and overlooks the implication resulting from a subsequent case directly dealing with the same matter. United Surety Co. v. American Fruit Co., 238 U. S. 140.

In addition, as the paragraphs of § 250 in question but reënact provisions of prior statutes which had been construed as conveying authority to review controversies

concerning the constitutional power of Congress to enact local statutes (Parsons v. District of Columbia, 170 U. S. 45; Smoot v. Heyl, 227 U. S. 518), the proposition conflicts with the settled rule that, where provisions of a statute had previous to their reënactment a settled significance, that meaning will continue to attach to them in the absence of plain implication to the contrary. Latimer v. United States, 223 U. S. 501, 504; Anderson v. Pacific Coast S. S. Co., 225 U. S. 187, 199; Louisville Cement Co. v. Interstate Commerce Commission, 246 U. S. 638, 644.

That a decision below which merely deals with and interprets a local statute is not subject to review by error or appeal, affords no basis for saying that the exertion of the infinitely greater power to determine whether Congress had constitutional authority to pass a statute local in character should be necessarily subjected to a like limitation. To the contrary, the elementary principle is that the right to pass upon the greater question, the constitutional power of Congress, draws to it the authority to also decide all the essential incidents, even though otherwise there might not be a right to consider them. Field v. Barber Asphalt Paving Co., 194 U. S. 618, 620; Williamson v. United States, 207 U. S. 425, 432; Michigan Central R. R. Co. v. Vreeland, 227 U. S. 59, 64; Wilson v. United States, 232 U. S. 563, 565; Singer Sewing Machine Co. v. Brickell, 233 U. S. 304, 313.

It follows that the certificate must be and it is

Dismissed for want of jurisdiction.

NEW YORK SCAFFOLDING COMPANY v. LIEBELBINNEY CONSTRUCTION COMPANY.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.

No. 22. Argued October 7, 8, 1920. Decided November 8, 1920.

The court notices the earlier forms of scaffolding used in the construction of buildings. P. 26.

The fact that certain advantages over the prior art asserted for the patented device here in question were not asserted in the patent itself, held not to deprive the patent of their benefit in determining whether the device was an invention. P. 31.

Patent No. 959,008, claims 1 and 3, to Elias H. Henderson, for improvements in scaffold-supporting means, does not involve any invention over the prior art as displayed in the earlier patent to William J. Murray, but merely mechanical changes, easy to discern and to make, and incidental to the main idea of the Murray patent. Pp. 27-31.

243 Fed. Rep. 577, affirmed.

THE case is stated in the opinion.

Mr. Frederick P. Fish, with whom Mr. C. P. Goepel, Mr. R. W. Hardie and Mr. F. C. Somes were on the briefs, for petitioner.

Mr. Wallace R. Lane and Mr. Robert H. Parkinson for respondent.

MR. JUSTICE MCKENNA delivered the opinion of the

court.

Suit for infringement by the Construction Company of a patent dated May 24, 1910, and numbered 959,008, for new and useful improvements in "Scaffold-Supporting

24.

Opinion of the Court.

Means," granted to Elias H. Henderson. Petitioner is assignee of the patent.

An injunction was prayed, accounting of profits and damages.

The patent is in the usual form, but a special manner of use of the invention is alleged. It is alleged that, since the acquisition of the patent, petitioner has been largely engaged in different cities of the United States in putting the invention into practice, and the manner thereof has been to construct and lease for use to builders and others at a specified royalty or price per week, the scaffolds embodying the invention, petitioner retaining the ownership of and title to the scaffolds, they being returned to petitioner upon the completion by the lessees of the work for which the scaffolds had been required.

The answer of the Construction Company directly put in issue certain of the allegations of the petition. It admitted, however, the use of scaffolds which it purchased from the Eclipse Scaffolding Company of Omaha, Nebraska, but alleged that such scaffolds did not contain or embody the invention protected by patent No. 959,008, in any way or manner.

It is also alleged that petitioner, sometime prior to February 21, 1914, brought suit in equity in the United States District Court for the District of Nebraska, against one Egbert Whitney, predecessor in the title of the Eclipse Scaffolding Company to the scaffolds sold by the latter company to the Construction Company, in which suit infringement of patent No. 959,008 was alleged.

In that suit a patent of one William J. Murray was pleaded, but the Scaffolding Company withdrew its case as to that patent and relied on claims 1 and 3 of the patent to Henderson, and the court decreed that the claims were void for want of invention, and it is alleged that the Construction Company "is entitled to the protection of said decree."

On the issues thus made by bill and answer proofs were taken and the court decreed against the patent, saying, in its opinion, that "the Henderson patent has not supplanted others, nor has the influence of its owner been exerted to that end. It barely represents a step in the art. It does not disclose invention." And further, "In view of the conclusion reached by this court that claims 1 and 3 of the patent in said suit are invalid, it is unnecessary to do more than touch upon the matter of infringement. The evidence of infringement is meagre, and yet, if the claims of patent in suit were to be held valid with a range of equivalents, infringement would be found." The decree was affirmed by the Circuit Court of Appeals. 243 Fed. Rep. 577.

The Construction Company pleaded in defense, as we have said, the decree of the District Court of Nebraska in the suit of petitioner against Egbert Whitney, but that decree was reversed by the Circuit Court of Appeals, 224 Fed. Rep. 452. The reversal and the opinion of the Circuit Court of Appeals thereon are much relied on in this suit, and we may say constituted the inducement to issue certiorari. It is seemingly antithetical to the opinion and judgment under review, and the Circuit Court of Appeals for the Third Circuit felt and expressed the embarrassment of "disturbing the force of a decision of a court of coördinate jurisdiction," formed "upon precisely the same issues and upon substantially the same facts." The court, however, felt constrained to an "opposite judgment" and decided that Henderson made but "formal changes" in the prior art which involved no invention, and affirmed the decree of the District Court.

Necessarily, for an estimate of Henderson's patent we must consider the prior art. It is detailed by witnesses, explained by counsel, and illustrated. Specific descriptions are not necessary. We may refer to our own observation of the first forms of scaffolding. To quote