Page:Federal Reporter, 1st Series, Volume 7.djvu/877

 UNITED STATES STAMPING CfO. V. KINfl. 665 �: Th« claims of the patent are two: �'" (!) A spittoon made of paper, weighted at Its bottom or lower part bya beavier matetial to secure its stability, and to enable it to rigbt itself, in case of being tiited, substantially as speciaed. (2j The arrange- ment of a weight, B, between two thicknesses of layers, of which the bot- toin, a, or lower part of the paper vessel is composed, essentially as and forthe purpose herein set forth." �A suit in equity was brought ^on the Heatb patent, in the circuit court of the United States for the district of New Jersey, in June, 187^, by Lorin Ingersol^, the then own^r of that patent, against Mary iumejc and William Turner. They set up the Topham patent as a prior patent, containing the Heath invention, and alleged that they were licensees under a re-isBue of the Topham patent. Proofs were taken and the case was brought to a hearing before Judge Nixon. In his decision he says : �"The Word 'cuspidor' is derived from the Portuguese word 'euspo,' to spit ; ' cuspidor,' a spitter. The English cuspidor is a spittoon of a peculiar f orra. Net much stress, theref ore, can be laid upon the fact that Topham calls his patent.' an improvement in spittoons,' and Heath calls his ' an improvement in cuspidors. ' The difference between a spittoon and a cuspidor is one of form, and the form of the cuspidor is not new. The characteristic and valuable feature of both articles is their self- righting quality, arising from the weighted bottoms. The functions of the weighted bottoms in each are. :the same, and Topham bas the ment of being the older. It is in evidence that he made papier mache cuspidors wlth weighted bottoms as early as June or July, 1871, anterior to the date of the patent to Heath. What, then, has Heath donc ? He has improved a cuspidor by increasing the weight of the bottom, whereby it is rendered less liable to upset, using the same means that Topham ap- plied to spittoons and producing the same results. He has substituted sheet metal for other, and it may' be, less appropriate materials for the manufacture, but there was no invention in the mere change of ipaterial ; and his method of construction, to-wit, the putting together the cuspi- dor in three pieces, is so obvious, that nothing was claimed for it in the patent, and nothing ought to have been. AJay skilled mechanic would naturally adopt it without the exercise of inventive talent. As the de- fendants justify under the Topham patent, there must be a decree in their favor, and it is ordered accordingly." �, This decision was made in June, 1877. There was very little testimony in the New Jersey suit. There was no expert testimony on either side. The date of the Heath patent, v.7,no.l0— 55 ��� �