FOWLER CAR CO. v. CHICAGO, B. & Q. R. CO., 237 F. 202

EVANS, Circuit Judge (after stating the facts as above). It clearly appears from the testimony that the single sheath car was in use long prior to the application by Mr. Fowler for the patent in question. Moreover, the adjustable side wall was not patentable in 1910, for long prior thereto it had been covered by the Marshke patent, No. 684,611, issued October 15, 1901.

This latter patent covered a grain tank or box for wagon, and the object of the invention is described by the inventor as being: “An improvement to provide a simple and durable form of wagon body which is so constructed that the boards when shrunken may be drawn together and the grain thereby prevented from escaping therefrom,” Marshke shows that the means provided in his patent for tightening the grain wagon box-was the same as that provided by Fowler in his patent.

He says: “The ribs are secured together by a series of bolts and the apertures in the ribs through which said bolts are inserted are made slightly larger than the bolts or preferably slightly elongated so as to permit them [the bolts] to move with the series of boards as they are drawn together.” We conclude that the Fowler reissue patent, No. 13,561, is invalid so far as the claims here involved are concerned. The claims of the Murray patent involved herein cover the means for tightening the boards on the side of the box car. The mere use of a wedge as such for pressing boards together is not patentable.

If the wedge in the Murray patent can be sustained as a valid claim, it must be by reason of its being a permanent part of the car side. A complete answer to appellant’s claim in this respect is that appellee’s cars were not equipped with the wedge as a part of the car side. The jackscrew in appellee’s cars was merely used as a means—a tool, separate and distinct from the car itself—whereby the boards of the car side were pressed together. It follows, therefore, that, so far as the claims of the Murray patent are concerned, they were either invalid or not infringed.

If construed so as to cover wedges generally, they were not valid, as they involved no patentable novelty. If restricted so as to be an integral part of a car side, they were not infringed by appellee. Appellant contends that the structure for which protection was given by its patents should not be considered singly, but as a completed unit. As such, appellant contends the patented structure includes a single sheathed car, a single wall of sheathing made adjustable and.capable of being tightened and a novel tightening means per se.

Appellants concede that a single sheathed car alone is not patentable, but they contend patenl ability of the invention becomes apparent when a single sheathed car has its planks so adjusted as to be capable of being tightened, and that the claim of patentability is strengthened when in addition thereto a novel tightening means is provided. Granting that its invention should be considered as a unit, we are unable to discover novelty or originality in the claims when viewed in the light of the patent to Marshke heretofore referred to.

The addition of the Murray patent merely provides a particular novel means for pressing the planks together, and affords appellants no aid, for properly construed the claims in issue under the Murray patent are in no way infringed by appellees. , The decree is affirmed.