Collar Company v. Van Dusen

• Decision Date: 01 October 1874
• Citation: 23 Wall. 530,90 U.S. 530,23 L.Ed. 128
• Parties: COLLAR COMPANY v. VAN DUSEN
• Court: U.S. Supreme Court

90 U.S. 530

23 L.Ed. 128

23 Wall. 530

COLLAR COMPANY v. VAN DUSEN.

October Term, 1874

APPEAL from the Circuit Court for the Southern District of New York, in which court the Union Paper-collar Company filed a bill against Van Dusen, to enjoin him from making shirt-collars out of a certain sort of paper which he was using and to which they claimed an exclusive right, and also from turning over the collars so made, by a particular contrivance which he was also using, and of which, as of the fabric of the collar, the company claimed a monopoly.

The claim by the company of exclusive right as to the fabric of the collars—that is to say, the sort of paper out of which they were made—was founded on a grant to them of a patent, reissued to one Andrew Evans; the claim of similar right as to the device by which the collar was turned over, was founded on the grant to them of a patent reissued to a certain Solomon Gray.

Van Dusen, admitting the use both of the special sort of paper and of the device for turning the collars over, set up:

I. AS TO THE EVANS PATENT, THE ONE, NAMELY, FOR THE FABRIC——

1. That the reissue to Evans was void, as not being for the same invention as the original patent.

2. That, whether or not, both original and reissue were void for want of novelty.

II. AS TO THE GRAY PATENT, THE ONE, NAMELY, FOR THE DEVICE——

1. That it too was void for want of novelty.

The reader will, of course, remember that the Patent Act authorizes the issue of a patent only when a person has invented or discovered some 'new manufacture, or some new and useful improvement thereof, not known or used by others;' and also that while authorizing in certain cases the reissue with an amended specification of an original patent, where the specification has been defective, the act contemplates that the reissued patent shall secure no other than 'the same invention' meant to have been secured by the original.¹

The case was thus:

I. As to the Evans patent and reissue, the fabric for making shirt-collars. Paper being made out of linen, among other things, and some sorts of paper being more stiff or more tough than others, it had been observed long prior to the grant of any patent on the subject, that shirt-collars could be made out of the stiffer or more tough sort of papers, and that the collars, if used but for a short time and not closely looked at, might pass for linen collars. A man named Olmstead, the 'property-man' of a band of negro minstrels, who used to costume themselves in fantastic style, had used them so far back as 1851 to dress his minstrels when performing at a place called 'White's Varieties,' in the Bowery, New York. He said:

'In the year mentioned, and afterwards, we made wooden blocks or patterns from linen collars, and laid the blocks on paper. We would then mark the paper with a lead-pencil, and afterwards cut out the collar from the paper by the marks, with a pair of scissors. For stiff or 'stand-up' collars of large size and fantastic shape—such as we used when we wanted collars with long points and to come up nearly to the men's eyes—we used Bristol boards, such as artists use. The outside of that board is glossy. The other side, which is not glossy, the performer put next his face. The gloss prevented the burnt cork, with which the so-called negro minstrels (who are all white men) are blackened, from sticking to the paper. Turned-down collars we made out of paper. We did this by simply pinning the paper to a cravat and then laying it on a board and turning it over the cravat. Sometimes these collars were cut in two at the back; that is to say were made out of two pieces of paper. When we wanted fancy collars we would prick the Bristol board or paper. The holes looked like stitches. Sometimes we would paint them pink or blue, or in stripes, so as to be like colored linen or linen, with blue or pink stripes. The fancy collars were worn, of course, only on the stage. But the white ones, our men—who as a class are lazy fellows—would sometimes wear in the street. On the stage we could, with care, wear the collars several times. In the street, only once or twice. We got the Bristol boards and paper out of which we made these collars at Rayner's, a stationer, in the Bowery. I sold these collars for eight or nine years, and from two to five cents. I did not go regularly into the business because I had no capital.'

Subsequently a person named Hunt made a business of selling paper-collars, and got a patent for the particular sort which he made. This sort was made out of paper applied to some woven fabric, the paper, which was worn on the outside, giving to the loose and limber fabric of the woven fabric rigidity, and the general appearance of a starched linen collar, while the woven fabric, worn next the skin, sustained and gave strength to the paper. Nevertheless, these collars were expensive and had a harsh and inelegant look. In addition, they wanted pliability, and when turned over were apt to crack and form a roughened edge.

However, as already said, paper had long been made having different degrees of toughness. Some paper—'short-fibre paper,' as it is called, the sort commonly used for the inferior class of newspapers—paper made from wood, or from poor cotton rags ('soft stock,' as it is called) or from old paper itself, or by imperfect processes—is brittle, and tears easily. But another sort, 'long-fibre paper,' that made from linen rags, or linen canvas, manila rope, Kentucky bagging, &c. ('hard stock,' as it is called), and from which, by some variation in the machinery producing it, and with more time, are produced the papers known as bank-note paper, cartridge-paper, silk-paper, and tissue-paper, among the thin papers, and parchment-paper, drawing-paper, and Bristol boards, among the thick, is highly tenacious and some of it quite pliable.

A reference to the general features of the process of papermaking by mechanical means will assist comprehension of sub equent parts of the case.

After the 'stock'—best rags or what else—is sorted and cut, it is generally cleaned by boiling, and finally put, with the requisite quantity of water, into the 'beating engine,' where it is beaten or ground into pulp. The beating engine is simply a vat divided into two compartments by a longitudinal partition, which, however, leaves an opening at either end. In one compartment a cylinder revolves, called the 'roll,' its longitudinal axis being at right angles to the length of the vat. In this cylinder, and parallel with its axis, are inserted a number of blades or knives which project from its circumference. Directly beneath the roll, upon the bottom of the vat, is a horizontal plate, called the bed-plate, which consists of several bars or knives, similar and parallel to those of the roll, bolted together. The roll is so arranged that it can be raised or lowered, and also the speed of its revolutions regulated at pleasure. The vat being filled with rags and water, in due proportion, the mass is carried beneath the roll, and between that and the bed-plate, and passing round through the other compartment of the vat, again passes between the bed-plate and roll, and so continues to revolve until the whole is beaten into pulp of the requisite fineness and character for the paper for which it is intended. When the beating first begins, the roll is left at some distance from the bed-plate, and is gradually lowered as the rags become more disintegrated and ground up. The management of the beating engine is left to the skill and judgment of the foreman in charge. The knives may be sharp or dull, the roll may be closely pressed upon the bed-plate or slightly elevated, the bars and knives may have the angles which they make with each other altered, so that they either cut off sharply, like the blades of scissors, or tear the rags more slowly as they pass between them. The duration of the beating also varies according to the nature of the pulp, the length of fibre required, the condition of the knives, &c. and the speed of the revolutions given to the roll is varied in like manner.

After the pulp has been beaten until the foreman judges that it is of the right length of fibre and quality for the paper desired, it is drawn off from the engine and first passes through the 'screens,' a kind of sieve, which removes lumps and impurities. The pulp is then poured out upon the wire-cloth, the water draining through the meshes of the wires, an operation which is aided by 'suction-boxes' that exhaust the air and suck the water out of the pulp. The thickness of the paper is mainly regulated by the amount of pulp poured out upon the wire, it being kept from flowing over the edge by raised guards. The pulp is carried by the motion of the wire beneath a succession of rollers, the first light and the last heavier, until a heavy roller covered with felt carries it off the wire by its adhering to the felt, and it then passes through heated rollers until it comes out pressed into paper. It is finished by passing under calender rolls, and given more or less gloss as may be required. It is usually sized and colored in the vat before the pulp is beaten. A white color is obtained by bleaching the rags, selecting white rags if possible for the original stock, taking pains to use clear water, and adding blue coloring matter if a yellowish-white is not desired.

There seemed to be no essential difference in the principles on which the two sorts of paper—short fibre and hard fibre—were made. The 'stocks,' as already said, were different. The machines using them, however, had no mechanical principles different for the two sorts of paper. For long-fibre paper the knives used in the process of pulping must be dull, and the process of beating must be long—forty-four hours being commonly given. For the short-fibre paper, the knives may be dull and the process of beating may be short—four hours suffices. To produce a thick paper, the device of...