1. In his specification, A describes a process for placing hair
in small bundles and by a bailing press uniting several bundles
into a bale of a convenient size for transportation.
Held
that this description does not show a patentable invention.
2. The court will take judicial notice of matters of common
knowledge, and of things in common use.
This was a bill in equity brought by Wendell R. King, the
appellant, against August Gallun and Albert Trostel, to restrain
them from infringing letters patent No. 152,500, dated June 30,
1874, granted to the appellant for certain improvements in baled
plastering hair.
The invention and its advantages are thus set forth in the
specification:
"It is found that the wants of the trade in plastering hair
require it to be compressed for transportation in packages of from
three to five bushels; this amount of hair forms a package of a
good size to conveniently handle, weighing from twenty to forty
pounds. The trade unit for the article of plastering hair is always
the bushel; it is sold by the bushel or by the multiple
thereof."
"Heretofore this hair has been packed in a mass of a certain
number of bushels baled together, varying in amount as the order
required, so that when received, the retail dealer was compelled to
parcel out the same and weigh it to suit his customers. This is a
disagreeable and difficult thing to do, as the hair is dirty and
matted together, and after it is once removed from the case into
which it has been compressed by a bailing press, is bulky and not
easy to reduce again to a convenient package. For the convenience
of the trade, I propose to form the hair in small bundles of one
bushel each and unite several bundles into a bale of a convenient
size for transportation. "
Page 109 U. S. 100
"I first place a bushel of hair into a paper sack loosely, or
only so far packed as may be readily done by hand; several of these
one-bushel packages are then placed side by side in a baling press.
I use for this purpose the baling press heretofore patented to me;
they are thus compressed forcibly together, so that the bale
produced will be a compact firm bale, occupying only about
one-fifth of the original bulk; the paper bags which still envelop
the individual bushels of the bale keep said bushels separate and
serve at the same time to protect the hair."
"The bale, after being compressed, is tied in the usual way, and
is then in shape for transportation without further covering,
although it may be desirable, if the bale is to be sent a long
distance, to envelop it in a stout sacking. Hair baled thus may be
separated by the retail dealer into bushel packages, each of which
remains compressed into a small size and is in convenient condition
to handle."
The claim was as follows:
"Having thus described my invention, I claim as an article of
manufacture the bale B of plasterers' hair, consisting of several
bundles A, containing a bushel each by weight, enclosed or encased
in paper bags or similar material, and united, compressed, and
secured to form a package substantially as specified."
The defense was want of novelty in the alleged invention, and
that the same was not patentable.
The circuit court dismissed the bill, and from its decree the
complainant has appealed.
MR. JUSTICE WOODS delivered the opinion of the Court.
We are of opinion that the patent of complainant does not
describe a patentable invention. The claim is for an article of
manufacture, to-wit, a bale of plasterers' hair consisting of
several bundles enclosed in bags and compressed and secured to form
a package. It is evident that the patent does not cover any
improvement in the quality of the hair. Its qualities are
unchanged. It
Page 109 U. S. 101
does not cover the packing of the hair into parcels, or the
size, shape, or weight of the parcels, nor the compression of the
parcels separately. Nor does it cover the material of the bags
which constitute the outer covering of the parcels. Complainant
claims none of these things as secured by his patent. The packing
of hair and other articles in parcels of the same shape, size, and
weight, and the compression of the several parcels, has from time
immemorial been in common use. Neither does complainant contend
that his patent covers a single parcel or package of hair. All,
therefore, that the patent can cover is simply an article of
manufacture resulting from the compression and tying together in
one bale of several similar parcels or packages of plasterers'
hair. The object of this invention is thus set out in the
specification: "For the convenience of the trade" -- that is to
say, to enable the retail dealer more easily to parcel out the hair
in quantities to suit his customers -- "I propose to form the hair
in small bundles of one bushel each, and with several bundles into
a bale of convenient size for transportation." The invention and
the object to be accomplished by it are thus seen to be contained
within narrow limits.
In deciding whether the patent covers an article, the making of
which requires invention, we are not required to shut our eyes to
matters of common knowledge or things in common use.
Brown v.
Piper, 91 U. S. 43;
Terhune v. Phillips, 99 U. S. 592;
Ah Kow v. Nunan, 5 Saw. 552.
The subdivision and packing of articles of commerce into small
parcels for convenience of handling and retail sale, and the
packing of these small parcels into boxes or sacks or tying them
together in bundles for convenience of storage and transportation,
is as common and well known as any fact connected with trade. This
well known practice is applied, for instance, to fine-cut chewing
and fine-cut smoking tobacco, to ground coffee and spices, oatmeal,
starch, farina, desiccated vegetables, and a great number of other
articles. This practice having been common and long known, it
follows that there is nothing left for the patent of complainant to
cover but the compression of the bale formed of several smaller
parcels. Can this be dignified by the name of invention? When the
contents of
Page 109 U. S. 102
the smaller parcels are such as to admit of compression into a
smaller compass, the idea of compressing the bale of the smaller
parcels for transportation and storage would occur to any mind.
There is as little invention in compressing a bale of several
parcels of hair tied up together, as in compressing one large
parcel of the same commodity.
But it is perfectly well known that the compression of several
packages of the same thing into larger packages or bundles is not
new, and that it has long been commonly practiced. Packages of
wool, feathers, and plug tobacco have been so treated. The case of
plug tobacco is a familiar instance. The plugs are formed so as to
retain their identity and shape, the outer leaves of the plug
forming at the same time a part of the plug as well as its
covering. The plugs, after being so put up as to preserve their
identity under pressure, are, as is well known, placed in a frame
and subjected to pressure, and reduced to a smaller and compact
mass, which is then boxed up and is ready for market. This is done
in part for convenience in handling, transportation, and storage.
When the box is opened by the retail dealer, the plugs can be taken
out separately and sold. This method of treating plug tobacco would
suggest to everyone the compression into a bale of distinct
packages of plasterers' hair, and leaves no field for invention in
respect to the matter to which the patent of complainant
relates.
In view of the facts to which we have referred, which are of
common observation and knowledge, we are of opinion that the
article of manufacture described in the specification and claim of
the complainant's patent does not embody invention, and that the
patent is for that reason void.
In support and illustration of our views, we refer to the
following cases decided by this Court:
Hotchkiss
v. Greenwood, 11 How. 248;
Phillips v.
Page, 24 How. 167;
Brown v. Piper,
91 U. S. 37;
Terhune v. Phillips, 99 U. S. 592;
Atlantic Works v. Brady, 107 U. S. 192;
Slawson v. Grand Street Railroad Co., 107 U.
S. 649.
The patent of complainant cannot be sustained by the authority
of the case of
Smith v. Goodyear Dental Vulcanite Company,
93 U. S. 486, where
the Court said:
"The invention
Page 109 U. S. 103
is a product or manufacture made in a defined manner. It is not
a product alone, separate from the process by which it is
created."
In that case, the invention was the product of a new process
applied to old materials. In this case, it is the product of an old
process applied to old materials.
Judgment affirmed.
