The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-09-26

being so, every element IN the COM
tinaticn must be regarded as public
property There may be such a
thing as patentsble improvement
in the form of one element of a pa
tented combination. But the use OF
the improved form by its patentee
would not require a license from the
patentee Of the combination, for the
form in the combination is expressly
or implicitly admitted to be old. And
SO if the patentable improved.form,
or even substantially different old
form, of one element Is used with the
other elements of the combination,
there will be no infringement, for
the combination will not be the
same. There is substituted for one
element another element which is
substantially diferent,-so different,
indeed, as to be, if a patent is taken
out for it, the exclusive property of
its patentee. To constitute infringe
ment, the same elements must be
used combined in the same way
the combination must be the same.
The principle or mode Of operation
may be the same and yet there may
be no infringement, for if one ele-
ment, though utterly useless, is
omitted or substantially changed,
the combination will be different.
The question therefore is not whe-
Their the Young device is mere i'm
provement upon the Dyer device,
embodying the same principle, but
whether the combination is the same
or different. In other words, is the
spiral rib to be regarded as only COL
orally different from, or as only a
mechanical equivalent for the longi-
tudinal rib. or not!
In Gould vs.. Rees, Is Wall, 1877,
the lower court had instructed the
jury "that the omission of one of the
elements and the substitution of
another mechanical device to per
form the same function will not
avoid infringement" The Supreme
Court of the United States held this
to be erroneous, and stated the law
to be that "an alteration in pa
tented combination which merely
substitutes another old ingredient
for one of the ingredients in the
patented combination is an infringe
ment of the patent, if the substitute
performs the s8me function and was
well known at the date of the pa
tent as proper substitute for the
omitted ingredient, but the rule is
otherwise if the Ingredient substi-
tuted was new one, or performs
substantially different function, or
was not known at the date of the
plaintiffs patent as a proper sub
stitute for the one omitted from his
patented combination" In other
words, there is no infringement, if
the substituted ingredient, though
old and we'll known, performs a sub
stantially different function, or If,
though old and well known, it per
forms the same function but was not
we'll known as proper substitute for
the omitted ingredient. See also
Rowell VS.. Lindsay, 10 o. g., 1865 Is
Fed. Rep, 29O), and the cases there
cited.
In the present case a spiral was
for a longitudinal rib. 1t
is claimed by the defendant that the
spiral rib performs substantially diff
ferent functions. such as the giving
Of more divided, uniform and scat
tering feed, the bringing of a more
uniform strain on the gears, and the
more effectual prevention of rush
of air into the furnace. From the
specification and an inspection of
the models, it does not appear clear
ly how rush of air into the furnace
is more effectually prevented; there
would apparently be a more uniform
strain on the gears, but this would
seem to be but an incidental and
unimportant advantage; and there
would seem to be more divided, uni
form and scattering feed, but this
also would seem to be but slight
inasmuch as the rolls are
small and the ribs not very far apart,
and there would be nearly continu-
ous uniform feed in either case, and
rs the fuel in either case falls in but
j single line and is not scattered
over the whole floor of the furnace.
There is nothing to show the fact or
The advantage of these differences in
The effects of the devices in actual
The Court can only make
differences from the differences in
The descriptions and models The
TACT of the existence or the advan-
ages of these differences in actual
or the contrary, if proved
1y competent evidence, would go far
% show whether the spiral rib does
IL does not perform substantially
different functions. So, the question
is to-whether the spiral rib, though
. well known thing in itself, is or is
lot well known as proper substitute
'or the longitudinal rib, might per
laps easily be settled by evidence.
But there is unfortunately no evil
fence on either of these points. The
,ase, though depending largely upon
acts, which are not agreed upon, but |
which should have been either agreed |
1pon or proved by proper evidence,
g loft IN tba Cont IN saftIa rnou