Washburn Moen Manuf Co v. Beat Em Allco

• Decision Date: 29 February 1892
• Docket Number: No. 128,BARBED-WIRE,128
• Citation: 12 S.Ct. 443,36 L.Ed. 154,143 U.S. 275
• Parties: WASHBURN & MOEN MANUF'G CO. et al. v. BEAT 'EM ALLCO. et al
• Court: U.S. Supreme Court

143 U.S. 275

12 S.Ct. 443

36 L.Ed. 154

WASHBURN & MOEN MANUF'G CO. et al. v. BEAT 'EM ALL BARBED-WIRE CO. et al.

No. 128.

February 29, 1892.

STATEMENT BY MR. JUSTICE BROWN.

This was a bill in equity for the infringement of letters patent No. 157,124, issued to Joseph F. Glidden, November 24, 1874, for an 'improvement in wire fences.' In his specification the patentee stated that 'this invention has relation to means for preventing cattle from breaking through wire fences; and it consists in combining, with the twisted fence-wires, a short transverse wire, coiled or bent at its central portion about one of the wire strands of the twist, with its free ends projecting in opposite directions, the other wire strand serving to bind the spur-wire firmly to its place, and in position, with its spur-ends perpendicular to the direction of the fence-wire; lateral movement, as well as vibration, being prevented. It also consists in the construction and noval arrangement, in connection with such a twisted fence-wire and its spurwires, connected and arranged as above described, of a twisting key or head-piece passing through the fence-post, carrying the ends of the fence-wires, and serving, when the spurs become loose, to tighten the twist of the wires, and thus render them rigid and firm in position.'

His claim was for 'a twisted fence-wire having the transverse spur-wire, D, bent at its middle portion about one of the wire strauds, a, of said fence-wire, and clamped in position and place by the other wire strand, z, twisted upon its fellow, substantially as specified.' The following drawings accompanied the specification:

The bill also relied upon certain decrees obtained in other districts against other defendants, which were claimed to have established the validity of the patent. The answer denied that, in view of the state of the art at the time this patent was issued, there was any invention in the device described, and averred that the decrees set forth in the bill were collusively and fraudulently obtained, and also set forth an opinion of the circuit court of the United States for the northern district of Illinois to the effect that the patent was void for want of novelty. Manufacturing Co. v. Haish, 10 Biss. 65, 4 Fed. Rep. 900.

Mr. Justice FIELD dissenting. 33 Fed. Rep. 261, reversed.

John R. Bennett, for appellants.

A. S. Blair, W. H. Singleton, and D. B. Henderson, for appellees.

Mr. Justice, BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

No serious question is or can be made regarding the infringement in this suit, the defendants relying solely upon the want of novelty. To determine satisfactorily the question whether there is involved in this device sufficient of novelty to support a patent, it is necessary to consider somewhat at length the progress which had been made in constructing barbed-wire fences prior to the issue of this patent, as it appears both from the face of the prior patents themselves, and from the oral evidence introduced by the defendants tending to show an unpatented use of such device before the application was made in this case.

1. The use of wire fences, composed either of a single wire, or of two or more wires twisted together, antedates by many years the barged feature of such fences. But, either by reason of their comparative invisibility or their weakness, they proved an insufficient protection against cattle, and fell largely into disuse. Something was needed, not so much to strengthen them, as to deter cattle from encountering them or testing their strength. Natural hedges of thorn, which in effect contain the principle of the barbed wire, have been employed both in this country and in England from time immemorial. Fences of other materials and various forms had been armed with pickets, spurs, iron points, spikes, sharp stones, or bits of broken glass inserted in plaster, but prior to 1867 no one seems to have conceived the idea of arming wire fences with a similar protecting device. In July of that year, however, one William D. Hunt took out a patent for arming the wires with a geries of small spur-wheels, their spurs being sharpened so as to prick readily. These wheels were provided with openings at their centers, through which the wire passed, fitting it loosely, so that the wheel would revolve easily upon it. There was a provision sometimes used, and oftener not, for keeping the spurs in their places, and at suitable distances apart, by means of flanges. This was obviously a crude and unsatisfactory device, and never seems to have gone into general use. The spurs were small serrated wheels revolving loosely about a wire, aided by flat bits of metal to render them more readily visible, and kept in place, if at all, by a clumsy and expensive flange.

In the same year, and about four weeks before the patent to Hunt, although his actual invention was antedated by Hunt in point of time, Lucien B. Smith took out a patent for a wire fence, having spools of iron or wood strung upon it, each spool being perforated and provided with four spurs projecting radially from them, and so arranged that they would revolve, while they were held in place lengthwise of the wires by slight bends or deflections in the wires at a distance of two or three feet apart, forming short straight lengths of about four inches, upon which the spools were hung. This patent contained the first suggestion of a barb proper, though in a very imperfect form; but it embodied an idea of which the public was not slow to avail itself, and gave an impetus to succeeding inventors, which finally resulted in the barbed fence now in use. Though valuable as illustrating the state of the art, it will scarcely be claimed to be an anticipation of the Glidden device.

The patent of February 11, 1868, to Michael Kelly indicated a decided step in advance of its predecessors, consisting, as it did, of small flat pieces of iron or steel, cut from a plate by machinery, each provided with a hole corresponding with the size of the wire, though a little larger, so that they could be introduced easily upon the wire, either by proper machinery or by hand. 'These pieces,' says the patentee, 'after being strung on the wire at distances about six inches apart, are compressed laterally upon the wire by a blow of a hammer, or otherwise, so as to flatten the hole, e, and also correspondingly flatten the wire at the point where this adjunct is to stand. I term these pieces 'thorns,' and it will be observed that each presents two sharp points. They may be so placed that they will all stand in the same plane, or they may stand irregularly in many different planes. I prefer the latter arrangement. The wire thus provided with the sharp points or thorns serves in the ordinary manner, with the addition of possessing an offensive character, which will soon teach cattle to respect it, and not attempt to force it.' Fig. 2 of this patent—a representation of which is here given—undoubtedly contained the idea subsequently developed by Glidden, but there was apparently no method of holding the barb in place, save by a blow of a hammer; at least, such seems to have been the opinion of the patentee at the time the patent was originally issued.

He says of this in his specification: 'I can, where it is desirable to increase the strengh of the wire, lay another wire of the same of a different size along-side of a thorn-wire, and can twist the two together by any suitable mechanism.' No claim was made for this method of construction in the original patent, although it seems to have been made the principal feature of a reissue obtained in 1876, which was not made an exhibit in this case. In this reissue he made a claim for twisting two wires and a series of thorns strung upon one of the wires, and held in position by them. In the case of Manufacturing Co. v. Fuchs, 16 Fed. Rep. 661, it was held that if this reissued patent were to be considered as covering more than the mode of fastening the plate bars to the wire in the combination stated, i. e., by hammering, and as extending the use of the twisted wire so as to include its use for the distribution locking of all kinds of barbs, the reissue was invalid as to such extension, because it was not included within the scope of the original invention. It is evident from this that the use of the second twisted wire for the purpose of locking the thorn was not contemplated by the patentee at the time his patent was originally granted, but was an afterthought suggested by other devices which in the mean time had made their appearance.

A second patent to Kelly, issued November 17, 1868, exhibits a flat wire pierced at intervals of six inches, through which thorns were inserted and locked to the wire by the blow of a hammer or otherwise. This device evidently bears a much more distant resemblance to the Glidden patent than the prior one, and is far from being an anticipation.

The application for the patent in suit was filed October 27, 1873, though the patent was not issued until November 24, 1874. Subsequent to the application for this patent, and on March 14, 1874, Glidden filed an application for an improvement in wire stretchers for fences, upon which a patent was issued May 12, 1874. It is not perceived how this patent could affect in any way the pending application for the later patent. The patentee abandoned nothing he had claimed before, but sought, as an improvement upon the former, to claim a slotted tube midway between the posts, in which was put a coil spring to spread the wires, and automatically tighten them, and keep them at the proper tension as against expansion by heat and contraction by cold. If the later application had covered the same invention as the prior application for the November patent, the later patent might have been void under our ruling in Suffolk Co. v. Hayden, 3 Wall. 315: but his claim was for a combination of wires with...