RAND, McNALLY & CO. v. EXCHANGE SCRIP-BOOK CO., 187 F. 984

GROSSCUP, Circuit Judge, delivered the opinion. Apart from the main idea of the patentees, that the unit in their patented ticket should be expressed in money instead of miles, we do not see anything in the patent that the defendants have infringed; for whether the physical differences, introduced hy the patentees, are patentable invention or not, they are so narrow, and make the patent so limited, that the alleged infringing device (differing also in form) does not seem to us to bq included. Does the adaptation of this new ticket to a unit, based on money instead of miles, make it patentable invention?

Originally, mileage tickets were confined, by the railroads, to the roads issuing them; but in the course of growing needs for wider transportation facilities, the railroads adopted interchangeable mileage tickets. These mileage tickets were good upon different roads, and on their face showed, without calculation (where the mileage rate was the same), what both the traveler and the carrier were entitled to. But when the mileage rate differed with the differing carriers, the matter was different.

The ticket here patented, is the first character of ticket that can be made interchangeable between any and all carriers without the necessity of calculation by the passenger or the carrier, irrespective of what the rate may be. This difference, between the mileage form of ticket and the patented ticket in question, can be brought out best, perhaps, hy an illustration. Suppose a traveler has a ticket, good from Chicago to Milwaukee and interchangeable between the steamship and the railroad lines, but the amount of transportation it is good for is expressed on the face of the ticket in miles.

If such ticket be purchased on the basis of the railroad rate, and he takes it to the railroad office, eighty-five coupons, representing $1.70 initial investment, will be taken out, which represents, without calculation on either his part or that of the carrier, what he ought to give up for this particular passage.

But if he takes it to the steamship office, whose rate between the two points is $1.00 instead of $1.70, it will require calculation, both upon his part and that of the agent of the steamship company, to determine how many mileage coupons shall be taken out; for how is he to translate the cost of this trip by steamer into miles, so as to enable him to determine the number of mileage coupons to be detached, except by a calculation, which may be easy or may be difficult, according to his experience or expertness in figures?

With this patented ticket, however, a traveler from Chicago to Milwaukee can select either the railway or the steamship line as his carrier, and, without making any calculation upon the difference in basis of rates, utilize the ticket for his transportation. The rate by rail is $1.70 — the conductor simply takes out 170 coupons, the scrip-strip unit being one cent. The rate by water is $1.00 — the collector or purser simply takes out 100 coupons. Without any change, the ticket answers for both rates; irrespective of mileage, or whether the rate is calculated on the railroad or the steamship basis.

It is “scrip,” a medium of exchange, or a letter of credit, good with each character of carrier that, for the given number oí miles he wishes to go, will carry him for a certain sum of money. In this respect it is different from the Thrall mileage book and from all preceding mileage books, though they were similar in outward form; and it is on this account that this ticket has been put into use on thirty-nine different transportation companies, including railroad, steamship and stage coach lines; and the like, irrespective of how widely the mileage rate differed.

True, in the Thrall and other mileage books, as in this ticket, there is a continuous strip of ribbon, divided into a series of consecutively numbered parallel spaces, arranged with folds within the cover, and designed to be detached in any desired portions upon the numbered lines separating the spaces. True, also, that upon an order from headquarters, the different railroad, steamship or stage coach offices might treat each space, in the Thrall or other mileage books, as so much money instead of so man}' miles, varying according to the mileage rates on each.

But this would mean that the whole ticket should be thrown away and another substituted, for twenty dollars divided into one cent coupons would be twice as large a ticket as a mileage ticket worth twenty dollars at a two-cent rate, and two and a half times larger where the rate is three cents. In other words, the old ticket is thrown away and this patented ticket substituted; unless, of-course, as already stated, it was left to both the carrier and traveler to make the calculation necessary to translate the mileage tickets, as they now stand* in money cost.

The ticket in question here avoids all sucli necessity for calculation by adopting- a standard, expressed on the.face of the ticket, that indicates to both carrier and traveler, without calculation, just what each one is entitled to. Unquestionably, the idea embodied in this ticket is a happy one. Possibly it has followed naturally, and without the employment of inventive thought, the wider use of interchangeable tickets. Possibly the wider use of interchangeable tickets has followed the embodiment of this idea.

Which is cause and which is effect, and to what extent one is cause and the other is effect, we have no means of determining. The record does not help us on that inquiry. All that we know is, that it was not used before appellee’s patent, and that it has been followed by the widest use. This, it seems to us, implies that the conception of this ticket, at least, helped to bring about the idea "of a wide interchangeable úse. There is no ground, under such circumstances, for saying that the concept is necessarily obvious.

It is equally probable that it was this new concept that made the wider use of interchangeable tickets commercially obvious. Nor do we think that this patented concept is nothing more than a business method. Its use is a part of a business method. The ticket patented is not a method at all, but a physical tangible facility, without which the method would have been impracticable, and with which it is practicable. And this is the status of thousands of like facilities that, once designed and put into use, have become the first of a new business method; and patents on such facilities have been sustained.

The decree of the Circuit Court is affirmed.