McCloskey v. Du Bois

• Decision Date: 01 January 1881
• Parties: MCCLOSKEY v. DU BOIS.
• Court: U.S. District Court — Southern District of New York

9 F. 38

MCCLOSKEY v. DU BOIS.

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

1881

James A. Whitney, for complainant.

Peter Van Antwerp and Rodney Mason, for defendant.

WHEELER D.J.

This cause has been heard since a decretal order for dismissing the bill of complaint, and before decree signed, upon a motion of the plaintiff to reopen the case for the introduction of new evidence as to the novelty and utility of the patented trap. It is plain that the motion should not be granted unless the new evidence would vary the case and probably lead to a different result.

The patent is simply for a die-drawn seamless soft-metal plumber's trap, made by forcing the metal through dies at varying velocities on opposite sides. It describes nothing to distinguish these traps from others except the mode of manufacture and longitudinal striations appearing upon them which are merely the result of the manufacture, and have nothing to do with the quality or operation of the traps. The patent assumed that soft-metal traps were before known and in use, and, besides, that fact was a matter of common knowledge, of which the court took judicial notice. There was no evidence as to the quality and characteristics of the die-drawn traps as compared with the cast traps before most in use. The new evidence would tend to show that their walls have greater solidity and more perfect uniformity, and that they are more elastic, and that the quality of the metal is changed and improved by the process of drawing, and that they have largely superseded all others in use. All these differences are due to the process of manufacture, in forcing the metal through dies, all of which effects were before well known. They are the same as the differences between cast and drawn lead pipe, as was shown in Leroy v. Tatham, 14 How. 156. There the testimony was that the drawn lead pipe 'was superior in quality and strength, capable of resisting much greater pressure, and more free from defects than any pipe before made; that in all the modes of making lead pipe previously known and in use it could be made only in short pieces, but that by this improved mode it could be made of any required length, and also of any required size and that the introduction of lead pipe made in the mode described had superseded the use of that made by any of the modes before in use, and that it was also furnished at a less price.'

Still the court said, th rough Mr....