Tracy v. Torrey.

teeth being twelve inches in perpendicular height and fourteen inches long and curving forward, and so disposed that no two should work in the same furrow; the horses being attached to a tongue. The patentee's claim was as follows: "What I claim as my invention, and desire to secure by letters patent, is the arrangement of the teeth in two rows, in combination with a pair of wheels the treads of which are in a line midway between the points of the two rows of teeth, substantially as described."

The defendants were manufacturing and selling, within the plaintiff's territory, cultivators which the bill claimed to be the same thing as Ide's. In the defendants' cultivator there were but two wheels, no guiding-handles, and seven teeth, the points of three being in front of the wheels and the points of four behind. But the defendants threw the axle of the wheels forward and the hind teeth backward so far that the tread of the wheels was not midway between the points of the two rows of teeth, and, by thus increasing the leverage behind, reduced the strain on the horses still more. They also moved forward the middle tooth of the forward three and the two middle teeth of the four behind, so that the two rows were no longer straight.

Samuel Blatchford, for the plaintiff.

Alvah Worden, for the defendants.

THE COURT held that the defendants' cultivator was an infringement of Ide's; that the defendants were using the principle and substance of Ide's invention, merely carrying it out further in practice than he had done when he took out his patent; and that the defendants' form of construction was. not in law even an improvement on Ide's, because it was only the result of practical experience in the use of Ide's, and involved no invention beyond what was embodied in Ide's and was clearly set forth in his specification.

Winans v. The Schenectady and Troy Railroad Co.

The defendants' counsel asked that the injunction be stayed on the defendants' giving security to the plaintiff for his damages and rendering a periodical account of their sales of cultivators. This application was based on the fact that the defendants were men of pecuniary responsibility.

But the Court refused the application, on the ground that the infringement was clear and the right to the injunction manifest.

Injunction ordered.*

Ross WINANS

vs.

THE SCHENECTADY AND TROY RAILROAD COMPANY.

The claim of Winans' patent, granted October 1st, 1834, for an "improvement in the construction of cars or carriages intended to run on railroads," which claim is "the before-described manner of arranging and connecting the eight wheels, which constitute the two bearing-carriages, with a railroad car, so as to accomplish the end proposed by the means set forth or by any others which are analogous and dependent upon the same principles," is a claim for the car itself constructed and arranged as described in the patent, and evidence that parts of the arrangement and construction were before known does not affect the novelty of the invention.

The location of the trucks relatively to each other under the body of the car, as well as the near proximity of the two axles of each truck to each other, form an essential part of the arrangement of the patentee, who states, in his specification, that the closeness of the fore and hind wheels of each truck,

* In the case of Chamberlain v. Ganson, argued at the same time, which was a motion for a provisional injunction for an infringement of the same patent, the defendant's cultivator was like that of the Torreys, except that it had the middle tooth of the forward three set back instead of forward, thus bringing the points of two teeth forward of the wheels and the points of five teeth behind the wheels. An injunction was granted in this case also.

Winans v. The Schenectady and Troy Railroad Co.

taken in connection with the use of two trucks arranged as remotely from each other as can conveniently be done for the support of the car-body, with a view to the objects and on the principles set forth by him, is considered by him as an important feature of his invention. But the improvement does not consist in placing the axles of the two trucks at any precise distance apart, or at any precise distance from each end of the body; and the specification is sufficient, although it does not state in feet or inches the exact distance from the ends of the car-body at which it would be best to arrange the trucks, or what should be the exact distance between the axles. The patent, which was issued in 1834, had no drawings originally annexed to it, and the specification contained no reference to any drawings. The patent was recorded anew in June, 1837, under § 1 of the Act of March 3d, 1837, (5 U. S. Stat. at Large, 191,) and a drawing of the invention, verified by the oath of the patentee under said § 1, was filed in November, 1838: Held, in an action for the infringement of the patent, that a certified copy of such drawing was admissible in evidence under § 2 of said Act, in connection with certified copies of the patent and specification, and that the whole together were primú-facie evidence of the particulars of the invention and of the patent granted therefor.

As a general rule, such a drawing cannot be used to correct any material defect in the specification, unless it corresponds with a drawing filed with the original specification for the patent; otherwise, in case of discrepancy, the specification must prevail.

Nor can such a drawing have the same force and effect as if it had been referred to in the specification, nor is it to be deemed and taken as part of the specification.

The specification of Winans' patent said nothing about the mode of attaching the car to the motive-power or to the next car in a train, nor anything about the use of side-bearings to prevent the rocking of the car from side to side, but the drawing filed in November, 1838, showed that the car was to be attached to the motive-power and to the next car in a train by its body, and not by a perch from the truck, and also showed a provision for side-bearings: Held, that the specification afforded a sufficient description of the invention independently of the drawing, and that the mode of attaching the car and the use of side-bearings did not enter into the essence of the invention or constitute any substantial part of the improvement.

The law allows an inventor a reasonable time to perfect his invention by experiment and ascertain its utility, before it obliges him to take out his patent; and, in the case of Winans' invention, experiments could be made only by putting the car into the service of those controlling lines of railroads. In applying the rule, a jury must take into consideration the nature of the invention, and all the circumstances of the case. But an inventor is bound to act in good faith, and must not suffer his invention to be used except for the purposes of experiment.

(Before NELSON and CONKLING, JJ., Northern District of New York, September 1st, 1851.)

Winans v. The Schenectady and Troy Railroad Co.

THIS was an action on the case, tried before CONKLING, J., in June, 1850, for the infringement of Letters Patent *

*The specification was as follows:

"To all whom it may concern-Be it known, that I, Ross Winans, civil engineer, of the city of Baltimore, in the State of Maryland, have invented a new and useful improvement in the construction of cars or carriages intended to travel upon railroads; which improvement is particularly adapted to passenger-cars, as will more fully appear by an exposition of the difficulties heretofore experienced in the running of such cars at high velocities, which exposition I think it best to give in this specification, for the purpose of exemplifying the more clearly the object of my said improvement.

"In the construction of all railroads in this country, which extend to any considerable distance, it has been found necessary to admit of lateral curvatures, the radius of which is sometimes but a few hundred feet; and it becomes important, therefore, so to construct the cars as to enable them to overcome the difficulties presented by such curvatures, and to adapt them for running with the least friction practicable upon all parts of the road. The friction to which I now allude is that which arises from the contact between the flanches of the wheels and the rails, which, when it occurs, causes a great loss of power and a rapid destruction of or injury to both the wheel and the rail, and is otherwise injurious. The high velocities attained by the improvements made in locomotive engines, and which are not only sanctioned, but demanded, by public opinion, render it necessary that certain points of construction and arrangement, both in the roads and wheels, which were not viewed as important at former rates of travelling, should now receive special attention. The greater momentum of the load, and the intensity of the shocks and concussions, which are unavoidable, even under the best constructions, are among those circumstances which must not be neglected, as the liability to accident is thereby not only greatly increased, but the consequences to be apprehended much more serious. The passenger and other cars in general use upon railroads have four wheels, the axles of which are placed from three and a half to five feet apart; this distance being governed by the nature of the road upon which they run, and other considerations. When the cars are so constructed that the axles retain their parallelism, and are at a considerable distance apart, there is a necessary tendency in the flanches of the wheels to come into contact with the rails, especially on the curvatures of least radius, as the axles then vary more from the direction of the radii. From this consideration, when taken alone, it would appear to be best to place the axles as near to each other as possible, thus causing them to approach more nearly to the direction of the radii of the curves, and the planes of the wheels to conform to the line of the rails. There are, however, other circumstances which must not be overlooked in their constructions. I have already alluded to the increased force of the shocks from obstructions at high velocities; and, whatever care may be taken, there will be inequalities in the rails and wheels, which, though small, are numerous, and the perpetual operation of which produces effects which cannot be disregarded. The greater the distance between the axles, while the length of the body remains the same, the less is the influence of these shocks or concussions; and this has led, in many instances, to the placing them in passenger-cars at or near their extreme ends. Now, however, a compromise is most commonly made, between the evils resulting from a considerable separation and a near approach, as, by the modes of construction now in use, one of the advantages must be sacrificed to the other. But it is not to the lateral curvatures and inequalities of the road alone that the foregoing remarks apply. The incessant vibration felt in travelling over railroads is mainly de

Winans v. The Schenectady and Troy Railroad Co.

granted to the plaintiff on the 1st of October, 1834, for an "improvement in the construction of cars or carriages intended to run on railroads."

pendent upon the vertical motion of the cars, in surmounting those numerous though minute obstructions which unavoidably exist. The nearer the axles are placed to each other, the greater is the effect of this motion upon the passengers, and the greater its power to derange the machinery and the road. It becomes very important, therefore, both as regards comfort, safety and economy, to devise a mode of combining the advantages derived from placing the axles at a considerable distance apart, with those of allowing them to be situated near to each other. It has been attempted, and with some success, to correct the tendency of the flanches to come into contact with the rails, on the curved and other parts of the road, by making the tread of the wheel conical; and, if the travelling upon railroads was not required to be very rapid, this would so far prove an effectual corrective, as the two rails would find diameters upon the wheels which would correspond with the dfference in length, the constant tendency to deviation being as constantly counteracted by this construction; but, at high velocities, the momentum of the body in motion tends so powerfully to carry it in a right line, as to cause the wheel on the longer rail to ascend considerably above that part of the cone which corresponds therewith; the consequence of this is, a continued serpentine motion, principally, but not entirely, in a lateral direction; nor is this confined to the curved parts of the road, but it exists to an equal, or greater extent, upon those which are straight, especially when the axles are near to each other, the irregularities, before spoken of, constantly changing the direct course of the wheels, whilst there is no general curvature of the rails to counteract it. To avoid this effect, and the unpleasant motion and tendency to derangement consequent upon it, an additional motive is furnished for placing the axles at a considerable distance apart.

"The object of my invention is, among other things, to make such an adjustment or arrangement of the wheels and axles, as shall cause the body of the car or carriage to pursue a more smooth, even, direct and safe course than it does, as cars are ordinarily constructed, both over the curved and straight parts of the road, by the before-mentioned desideratum of combining the advantages of the near and distant coupling of the axles, and other means to be hereinafter described. For this purpose, I construct two bearing-carriages, each with four wheels, which are to sustain the body of the passenger or other car, by placing one of them at or near each end of it, in a way to be presently described. The two wheels on either side of these carriages are to be placed very near to each other; the spaces between their flanches need be no greater than is necessary to prevent their contact with each other. These wheels I connect together by means of a very strong spring-say double the usual strength employed for ordinary cars the ends of which springs are bolted, or otherwise secured, to the upper side of the boxes which rest on the journals of the axles; the longer leaves of the springs being placed downwards, and surmounted by the shorter leaves. Having thus connected two pairs of wheels together, I unite them into a four-wheel bearing-carriage, by means of their axles and a bolster of the proper length, extending across, between the two pairs of wheels, from the centre of one spring to that of the other, and securely fastened to the tops of them. This bolster must be of sufficient strength to bear a load upon its centre of four or five tons. Upon this first bolster I place another of equal strength, and connect the two together by a centre-pin or bolt passing down through them, and thus allow them to swivel or turn upon each other in the manner of the front