Blessing v. John Trageser Steam Copper Works

• Decision Date: 23 April 1888
• Citation: 34 F. 753
• Parties: BLESSING et al. v. JOHN TRAGESER STEAM COPPER WORKS.
• Court: U.S. District Court — Southern District of New York

34 F. 753

BLESSING et al. v. JOHN TRAGESER STEAM COPPER WORKS.

United States Circuit Court, S.D. New York.

April 23, 1888

George G. Frelinghuysen, for plaintiff.

Frederic H. Betts and J. E. Hindon Hyde, for defendant.

SHIPMAN J.

This is a demurrer in an action at law for the infringement of letters patent No. 80,441, dated July 28, 1868, for an improvement in copper-lined bath-tubs. Two grounds of demurrer are assigned: (1) That the complaint, of which the letters patent are made a part, by profert, does not state facts sufficient to constitute a cause of action, because it is apparent on the face of the patent that it does not contain a patentable invention. (2) That the complaint does not state that the invention had not been in public use or sale in this country for more than two years before the date of the application. It avers that the invention was not, at the time of the application, in public use, or on sale with the consent or allowance of the inventor, contrary to the provisions of the statute of the United States.

The first ground of demurrer raises the question whether the described improvement is so obviously the result of a mere exercise of mechanical skill that the patent is void upon its face, and must be adjudged to be invalid. It is well settled that, in a bill in equity for the infringement of a patent, if the patent is void on its face by reason of want of patentable invention or of novelty, when the pre-existing device is a thing in the common knowledge and use of people throughout the country, the court may stop at the instrument itself, and, without looking beyond it adjudge in favor of the defendant. Brown v. Piper, 91 U.S. 37; Slawson v. Railroad Co., 107 U.S. 649, 2 S.Ct. 663. In an action at law upon the patent, if it is plainly void upon its face, it is likewise true that the court has the power so to adjudge, upon a demurrer; or, if a demurrer is not interposed, and after hearing the evidence upon the alleged question of fact, the court is of opinion that there is no question which can be submitted to the jury it is its duty to direct a verdict. Where the question whether the improvement required inventive skill for its production actually exists, it is one of fact for the jury. Poppenhusen v. Falke, 5 Blatchf. 46, 49; Shuter v. Davis, 16 F. 564. In almost all cases the nature of the subject demands that the triers should be instructed by the testimony of those skilled in the art to which the patent relates, and therefore a demurrer for non-patentability apparent upon the face of the...