JUSTI et al. v. CLARK, 108 F. 659

GROSSCUP, Circuit Judge. The injunction against infringement was asked only upon claims (1), (2), (3), & (4) of the re-issue patent. These are identical with the like numbered claims in the original patent. There is nothing, therefore, in the particular re-issued claims, upon which relief is asked, different from the original claims. The decree of the Circuit Court in following the re-issue, did not expand or alter what would have been appellee's right, had there been no re-issue, and the suit had been brought upon the original Letters Patent.

But it is insisted that the claims added in the re-issue (though not brought into this case as a base for an injunctional order) were not within the right of the commissioner to allow, upon the showing of facts there made; and our attention is invited to the petition for reissue, as failing to show facts sufficient to give the commissioner jurisdiction. It is urged, in view of this, and of the progress of the art between the dates of the original and the re-issue Letters, that the success of the appellee in procuring the re-issue is in the nature of a fraud.

The defect of the argument is that it assumes that we have before us, in this case, all the facts that the commissioner had before him in the application for a re-issue; and that we can, in a collateral proceeding, declare the patent fraudulent, on account of the supposed imposition upon the commissioner. The statute relating to the subject,

Section four thousand nine hundred and sixteen, provides: “Whenever any patent is inoperative or invalid by reason of a defective or insufficient specification, or by reason of the patentee claiming as his own invention or discovery more than he had a right to claim as new, if the error lias arisen by inadvertence, accident or mistake and without any fraudulent or deceptive intention, the commissioner shall on the surrender of such parent and the payment of the duty required by law, cause á new patent for the same invention, and in accordance with the corrected specification to be issued to the patentee.” It will be seen that there is in this statute no provision relating to the medium of the required proof.

It is not provided that the proof of the facts upon which a re-issue may he granted — the inoperaüveness or invalidity of the original patent, through inadvertence, accident or mistake, and without deceptive intention — shall he by affidavit, deposition, or oral testimony. It is not provided chat the at-iention of the commissioner shall he called to such facts by any set petition, or other papier writing. This may be done, so far as statutory procedure goes, by oral testimony.

All that the statute contemplates is that the judgment of the commissioner shall he satisfied; and this is, of course, presumed from the fact that the re-issue was granted. In the absence of the whole case submitted to the commissioner — petition, affidavits, oral testimony and all — upon which he acted, we can not determine, had we the power, chat there were not before Mm facts sufficient to give him jurisdiction to grant a re-issue, or that the commissioner was misled. There seems to us to be no error in this particular of the case. This brings us to the questions of invention and patentability.

The Iluribut dental spittoon consists of an inner bowl set within an outer howl, the inner one so arranged that it may revolve, without much friction, upon a pin point bearing. Against the inner surface of the inner' howl a jet of water is (brown tangentially, so adjusted in quantity and pressure that, while the bowl is caused to revolve, the revolution is accomplished easily and quietly, and the water permitted to spread like a flushing veil or sheet over the whole surface.

Overflow is prevented by an annular ring, and space for the escape of air from the waste pipe is found between the outer surface of the inner bowl and the inner surface of the outer. The effect is noiselessness, a tasteful appearance, and a sense of purity and cleanliness. The spittoon immediately superseded the dental spittoons preceding it. The 'White dental spittoon, in existence before 1890, seems to have been the point at which the art, up to the Hurlbut spittoon, had reached its climax.

The White spittoon was a single stationary bow!, through which rose centrally, nearly to the level of the rim. a vertical rod carrying a water-spraying device that, turning pivotally on suitable bearings, distributed the water over the inner surface of the howl, subjecting its surface to a spray, such as comes to a lawn from a water sprinkler. It was, to a certain degree, cleanly and tasteful, and went into-general use; hut its differentiation from the Iluribut spittoon, ajipearing six years later, is well marked.

In the White spittoon the sprinkler revolves, while the bowl stands still; in the Hurlbut it is the bowl that is revoluble. In the former the power is applied to the swinging, cross-arms through the vertical rod by a construction known as Barker’s mill; in the latter the jet of water, striking the inner surface of the bowl, is, at once, the power that revolves it, and its cleanser. .

In the White there always stands up in the center of the bowl — a catch-all for the discharges from the patient’s mouth — this upright rod, and its cross-arms, themselves incapable of self-cleansing; in the Hurlbut there is no exposed portion that is not self cleansed. The striking advance of the Hurlbut over the White spittoon is thus manifest. The other patents cited — the Finney, Bliss, Fletcher, and Warner —are of a like construction, each having the. stationary bowl, supplied with stationary water distributors.

They fall short, therefore, as did the White, of the peculiar adaptation that gives to the Hurl-but spittoon its perfection as a dental bowl. Usually in any art the approach to the highest attainment is gradual ; the final result reached is but a step beyond its immediate predecessor. But in the art of dental spittoons the approach to the Hurl-but invention seems to have been by a long leap from its immediate predecessor. The transition from the White to the Hurlbut is in the nature of a decided departure, if not a. new creation.

We are of the opinion that the thought that conceived this new help to the ills of mankind is invention, and that its embodiment, in the mechanical means employed, completes the act as patentable invention. But though nothing is brought forward from the dental art as anticipatory of the transition from the White to the Hurlbut spittoon, the Bardsley patent — confessedly in another field — is urged as having made the Hurlbut spittoon so obvious, that what followed could only have been mechanical adaptation. We can not concur in this view. The Bardsley patent was for a rotary fluid motor.

Its sole purpose was to obtain power from a jet of water, and transmit it by a shaft to some other apparatus. It carried with it no thought of, or provision for, the flushing of water that causes self cleansing; it contained, indeed, no purpose of self cleansing. There was in it no basin, as a receptacle for the discharges from the patient; no provision for noiselessness; no suggestion of sightliness; none of the details that, taken together, constitute the tout ensemble of the Hurlbut spittoon.

It is true that, the underlying idea of the Hurlbut spittoon, well in mind, a glance at the Bardsley motor might reveal, in rough, the means for its mechanical embodiment; but the gist of invention is just this conception of the underlying idea — the mental, rather than the manual act — the burst of thought, rather than the reduction of the thought to practice. The Bardsley motor, in our opinion, had nothing in it that was calculated to reveal, in its entirety, the Hurlbut dental spittoon.

Indeed, the Bardsley motor only utilized a well known law of nature- — that a jet of water, applied tangentially to the inner surface of a basin nicely pivoted, would tend to revolve it. This had been partially exemplified, for many years-, in preceding water motors; and widely exemplified in tbe revoluble tumblers upon nearly every soda fountain counter.

It was a known law of nature when the early dental spittoons were devised, with, their stationary bowls and stationary water-distributer; and when the White spittoon was conceived, with its revoluble distributer; but, until Hurlbut’s time, it was not thought of in solving the problem of a sightly and sanitary dental basin. Is not this fact significant? Is it hot persuasive that IXurlbut’s conception was invention rather than mere sldll — a Hash of the intellect, creative and helpful, rather than the plodding advance of the mechanic.

Taken altogether, we regard the Hurlbut device as the result of an inventive thought, suitably reduced to practice, and, therefore, patentable. There was no error in the decree of the Circuit Court, and it is accordingly affirmed.