NORTHROF'S n'BS NORTHROP'S EX'BS (Oflrcuit Court II.
II.
RASNER.
685
RASNER et til.
of Appeals, Third Oircuit. August 16,1892.)
1.
PATENTS J!'OR INVENTIONS-LIMITATION OJ!' CLAIMS-PRIOR ART-METALLIC CEILINGS-
a
Letters patent No. 330,916, issued November 24, 1885, to Albert Northrop, for an improvement in metallic ceilings, if valid at all, must, in view of the prior state of the art, be limited to a ceiling made of panels, in which the chief characteristics are (1) the formation on two or more sides of the panels by means of molded edges which fit into each other, of a channel along which leakage water may flow and be discharged at orifices made by cutting away the corners of the panels, the oriflces being concealed by rosettes so constructed as to aid in discharging the water; and (2) the widening of alternate sides of each panel into flanged edges, which lie loosely upon each oth,er,IlO as to allow expansion and contraction by heat and cold. 48 Fed. Rep. 449, aftlrmed. '
SAMII-INl!'RINGEMENT.
'):'he patent is therefore not infringed by c,eilings made of metallic panels generallyhaving partially raised surfaces surrounded by moldings gradually flattening out into flat edges, which are nailed rigidly to the furring strips, such moldings forming no continuous,phannel for the discharge of water, and each panel having rosettes at the corners, which serve the purpose of ornaments only. 48 Fe4. Rep. 449, aftlrmed. ' ,
Appeal from the Circuit Court of the United States for the Western District of Pennsylvania. In Equity. Suit by the executors of Albert Northrop against Rasner .& Dinger for infringement of patent. The circuit court sustained the patent, but held that it must be strictly construed, and that .defendants did not infringe it, and therefore dismissed the bill. 48 Fed. .Rep. 449. Complainants appeal. Affirmed. W. Bakewell & Son8, for appellants. D. F. Patterson, for appellees. Before ACHESON and DALLAS, Circuit Judges, and GREEN, District Judge. GREEN, District Judge. The bill of complaint in this cause alleges infringement of letters patent No. 330,916, which were granted to the complainants ' testator, Albert Northrop, November 24, 1885, for an improvement in metallic ceilings. The object of the invention, as declared by the inventor, was to provide a sectional metallic ceiling of such construction that it should be of small initial cost in its manufacture; that it might be readily applied; that it would present a neat and .finIshed appearance; and, further, that it would provide for the escape of any water that might flow upon the upper surface of the ceiling by reason ·of a leaky roof or defective water pipe in the ceiling, or other cause. With these objects in view, the inventor declared that his invention con·sisted in certain features of construction and relative arrangement and combination of parts, as. he set forth and described in the specifications ,of the letters patent. The ceiling which it was intended to protect by these letters patent is <:omposed of a series of panels, joined together. Each panel is construc.ted with a molding on each one of its sides, which is SOccul,'ved as to form:lt channel. As the moldings are counterparts of -each other. the molding .on the edge oJ one panel will fit within the
686 molding on the adjacent edge of the adjoining panel. At the corners of the panels the edge,01htheUloldipgis eM away ,soth,at, when the panels are put in pOl'dtion upon the ceiling, an opening is formed at the junction, whiell': serves as an -ti1!ftlet for afiywater which may leak upon the upper,part of the ceilins-.These openings are hidden by rosettes of me,lial'WAich coVer anlicopceal them,. hut do not interfere:,With the discharS'e'of!eakaS'e water.eThe panel itself is secured in place either joists,' 'ort9' furring strips,. by fasteI'lings' through the'ourvedmoldings or cha:nflels. When the panels are properly put tocurved moldings, forma continuous channel or trough, through.which' the the roof. abo\'ewill collect and pass off at the openihiks"concealed by dl'e rbsettes,;without in afl'ecti!Jg the ceiling itself.. A somewhat. different form of panel is also described in .the havh'l$r:thl'l curved' nJolding upon one end, and one side olily,;:'upon the opposite end and side there being substituted a WhiCh;, when the panels arElbrought to?ether in use, WIll be received mto and he loosely upon the curved moldmg of the adand by this means any expansion or contraction of the 'provideddor, Without in any'wise disturbing: the construction of the ceiling. The allege':that the defendants are constructing panels and:eeitittgs which a.re direct infringements of the lst, 5th, and 6th claims of th'El1ietterspaterit, Those claims are llS follows: .. (1) A metallic ceili ng consist: ng of pRJlPls, having a CUfVf!d or channelpd molding on its foul' sidell" the moldings blling cut away at the corners of the panels, and rosettI's fOl' rovering 01' clIilCealinl{ said cut-away sUl.stl!J,llially itS set II (5) A metallic ('eillng consisting of 'pitiielS,havlugtlleii',ilidps (tw tJoO I' more} provided with channel moldings, the corners of the panels heing l'ut away. as set forth. (6).A metallic ceiling consisting of panels, eltch hadng a ,'uJ'vpd or channe!pd molding 01.1 two.?:f. panels, blj!'I( cut .atthpcOfne!s. and rosptt,es for covenng aUll.concealmgsalll cut-away portIons, substantIally as set forth." ,.. " In reply to this charge,' the defendants interpose two defenses: Jili'rst, that the patent or the complainants ishlvaJid for lack of invention; and, '8ecOndly, that if the invention 'of the complninantsdoes show patentable inovelty,the oeilings by then) do not in any degree infringe. ,,1'he lell.rned whe heard this cause in the courthelow held that, notwithstanding- the prior$tute of art, this patent did :show invention, and thaHhEl presun] ptioniofvalidity iIl'its laval', I1risin(' from the grant ovelicome by the proos on the part The delendnots,upon this part.:of their case, relied 7, 1870; letters patE'nHo,$an'derSon; 4,18'71; letters patent upon to"Jidler, iNo" the ceiling at: tbe.,courtnouseat Carlimwille, IH., which had been constructed year.sbe,fl)re Northl'op: applied: tOr thepatE'nt nOw in 8Uit. It cannot be denioo,>'hat,the primary,: impression made by these proofs of ; ,;:;::.,1, ; " , ,
687 the pdor'state Of the :art is somewhat at'variance with the conclusion reached by the learned judge in the court below; Certainly, as it seems to us, they stronglyJean againstithe patentable invention in the complainant's panels> or his paneled ceiling. That the panels he described,. and the ceiiling made by him, with them, are in some degree different froni the me.tallio roofing described in the Hughes and Sanderson patents, ahd from the ceiling in the Adler patent, as well as the ceiling of the Carlinsville courthouse, is very true; yet it is difficult to assert that the substantial and..material parts of the complainantls alleged invention are not practically. described or shown in one or. the · But it is not necessary to test this defense by a close analysis of the state of the art prior to Northrop's invention. Assuming that the court below Was justified in its finding that. patentable invention was present in the complainant's paneled ceilings, it is quite clear that the admitted state of the art compels a strict construction of the .claims of this .patent which are said to he infringed.; and, when so construed, we fully agree with the court below that the defendants are not guilty ofinfringement in the manufacture of panels and ceilings which they confessedly construct. It is quite true that. the defendants made use of panels of metal, in the construction oUheh ceilings, which are joined together, and then firmly fastened to the flupporting .joists or furring strips. It is quite true that at some distance from the edges of these panels are raised ornamentations produced by 'stamping, which might be called" moldings," It is quite true that, for further ornamentatioIl,metallic rosettes are faatened to corners ofthe panels when in place. But all this does not constitute an infrinF;ement of the patent in this case, as we must construe it. This patent is to be so construed. ha"ing in view the state of the art, that it may cover Ii ceiling made of metallic panels, in which the chief ,and necessary characteristic'S shall be two: First, the formation by means Of molded edges, on twoor four sides of the panels, of a channel, through alld along which leakage water may flow and be discharged at various prepared orifices or openings, 'which are hidden and concealed from the observer by metallic rosettes, so fitted and placed that they do not hinder, but rather assist, in such discharge; and, secondly, the widening of alternate sides of the panels into flat or flanged edges, which, in construction of the ceilings, lie loosely upon each other, in such a manner that they readily move in response to action of heat and cold, thus providing for supposed necessary expansion and contraction of the metal. If there be invention in this patent, it is found in these two forward steps in the progress of the art to which it belongs. They are the absolute and necessary characteristics of the complainant's invention. The difficulties arising from the disposition of leakage water falling upon the upper surface of metallic ceilings, and the supposed necessity for providing for the expansion and contraction, under changes of temperature, ofthe metallic base of the ceiling, were the problems which taxed the complainant's skill and inventive genius, and these are the only ·-ones which he claims to have solved.
688
FBDERAL REPORTER,
vol. 51.
Now, as-stated before, the ceiling constructed by the defendants is made of metallic panels. These panels are stamped into such form as may be desired for any particular ceiling. They generally have a par· -tially raised surface, eurrounded by a molding gradually widening out into flat edges,called by some of the witnesses "stiles." In construct· inga ceiling, these metallic panels are nailed to furring strips, or directly to joists, the flat edges overlapping in such a way that the line of joinder iaconcealed.Rosettes are firmly secured or otherwise fastened to eaoh corner of a panel, but play the part. of ornament only. They are of no other practicable orpossible.use. The edges of the' panel do not fprm a continuous, or indeed any, channel or trough for the flow of leakage :water. No special provision is made for such flow by the defend· ants in their work. The edges of the panels, instead of being curved so as to form a channel; are perfectly flat, and .lie close to the furring strip or joist. The distinguishing characteristic of a channel, as a part of the panel, is wholly 'wanting in the defendants' structure. The raised sur,face ofthe panel, which the complainantinsists is the equivalent of his curved molding, has no other office than to aid in presenting the special designst8mped upon. the panel itself. Possibly leakage water would lie in these indentations of the defendants' panel, if it once made its way thither, but there it would remain until it evaporated; at least, no provision is made by channels or openings for its discharge. Clearly there is no infringement of the complainant's invention in this respect. . Nor is there any infringement,' on the other hand, in respect to the provisions made by complainant'in his ceilings for regulating alleged contraction and expansion of the metal. The defendants' panels make, - .when nailed or secured to the joists; a rigid ceiling. No provision is made for their moving' or,sliding on each other as they may expand or contract. The defendants evidently found by experience that such contraction or expansion, whatever it might amount to, could be treated as wholly negligible, and disregarded it. It cannot be pretended that there is any infringement in this respect. . The result is that' the judgment of the court below is affirmed, with costs.
, I
PAINE
v.
PACIFIC MUT. LIFE INS. CO.
689
PAINE ". PACIFIC
MUT.
LIFE INS.
Co.
(OireuU Oourt of Appeals, Eighth. Circuit. August 9, 1892.)
No. 119. 1. LIFE INSUBANOE-ApPLIOATION-PRES1J1llPTlONS.
Where an application for life insurance has been made to an insurance solicitor, but the applicant dies before a policy is issued, and none in fact is ever issued, the presumption is that there was no contract of insurance, and no purpose to contract, otherwise than by a policy made and delivered upon simultaneous payment of the 'premium.
2.
SAME.
This presumption is rendered conclusive where the application provides that it is agreetl, and understood that only the home oftice of the company h811 to \leterll)ine whether a policy shall issue on tbe application, and that,. tbere shall be rio contract nntil a policy is issued and delivered and the first premium paid, while the applicant Is living, and in the same condition of health described in the application.
8;,S.ME-POWEBS 0:1' LOCAL AGEN'l.
In view of such provisions, there is no room for the application of the rule that , tbepowers of a local agent of a corporation are sometimes measured, not by bis actual; but by bis apparent, authority; and it is immaterial that such to take, Or does take, a portion of the first premium in trade from the applicant's store.. ' " The death of the applicant before his application reaches tbe home office revokes the' otl'er to become insured, as well as destroys the subject of the insurance, and renders the making of the proposed contract impossible. OF APPLICANT BEFORE AOOEPTANCE. .
4"
,
5.
SA.ME-AoOilPTANCE-NoTICE.
. Th\!, approval of the application by tbe company's medical director before receiving of the applicant's death, even if it amounts to a determination to accept ,the' same, does not complete the contract, when such acceptance 1& never communicated to the applicant's personal representative.
Appeal from the Circuit Court of the United States for the District of Nebraska. In Equity. Suit by IraT. Paine, as administrator of the estate of Forrest LI Kendall, against the Pacific Mutual Life Insurance Company of California; Decree dismissing the bill. Complainant appeals. Affirmed. Statement by SANBORN, Circuit Judge: This was an appeal from a decree of the circuit court for the district of Nebraska, dismissing the bill of appellant to enforce specific performanceof a contract which the bill alleged the appellee made with Forrest L. Kelldallon May 29, 1890, to insure his life for 810;000, and to recover of the; appellee for his death that amount, less a few dollars of unpaid premium. The answer denied that such a contract was made, and the court below, after hearing the cause on the pleadings and proofs, dismissed the bill. From the pleadiilgs and proofs the following facts appear: The complainant WQ;S the administrator of the estate of Forrest L. Kendall, and the defendant was a corporation organized under the laws of California, and authorized to insure lives in the state of Nebraska. Its bome office and principal place of bnsiness was in San Francisco, Cal. One Limback was the agent of the defendant at Grand Island, in v.51F.no.1l-44