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Goodyear v. Berry.

It is well settled that in the effort to ascertain the intention and meaning of the specifications and claims, they are to be viewed in a liberal spirit, so that, if possible, the object of the inventor or patentee may be carried out. Mere rigid technicalities are to be set aside, unless there is a clear legal necessity for sustaining them.

The words, "other allied gums” and “other vulcanizable gums,” used in the specifications and claims of the reissues of Nelson Goodyear, are not intended to cover any gum, though then unknown, which may be capable of vulcanization. They include only caoutchouc and other gums then known to be vulcanizable.

In the case of patented chemical combinations, the exclusive right to the invention imports nothing but protection against the use of the same, or substantially the same elements, compounded and treated on principles substantially the same as those of the patented article.

Although the words, "other vulcanizable gums," were not found in the original patent, the interpolation of them into the reissues does not make the latter void.

The case of Goodyear v. Providence Rubber Co., 2 Fisher, 499, examined but not followed.

When the denial of infringement in the answer, under oath, is not positive and unequivocal, the testimony of a single witness, with corroborating facts, is a sufficient proof of infringement.

When an infringement is proven, a cessation to use the infringing article is no bar to an injunction and account. The party whose rights have been invaded may claim protection against future infringements. Hard rubber manufactured under the patent of Edwin L. Simpson, dated October 16, 1866, is an infringement of the Nelson Goodyear reissues.

THIS was a bill in equity, filed to restrain the defendants from infringing letters patent for an "improvement in the manufacture of India rubber," granted to Henry B. Goodyear, administrator of Nelson Goodyear, deceased, May 6, 1851, and surrendered and reissued May 18, 1858, in two divisions, numbered 556 and 557, respectively.

The claim of the original patent was as follows:

"What I do claim, etc., is the combining of India rubber and sulphur, either with or without shellac, for making a hard and inflexible substance hitherto unknown, substantially as herein set forth.

"And I also claim the combining of India rubber, sulphur, and magnesia or lime, or a carbonate or a sulphate of

Goodyear v. Berry.

magnesia or of lime, either with or without shellac, for making a hard and inflexible substance hitherto unknown, substantially as herein set forth."

The disclaimer and claim of reissue 556 was as follows: "It is well known that it has been proposed to produce a hard substance from caoutchouc by passing it through highly-heated liquid sulphur; but this has not been attended with practical success.

"I do not wish to be understood, however, as making claim broadly to the union of caoutchouc and sulphur in the proportions named, however these substances may be united and treated.

"But what I do claim as the invention of the said Nelson Goodyear, and desire to secure by letters patent, is the combining of sulphur and India rubber or other vulcanizable gum, in proportions substantially as specified, when the same is subjected to a high degree of heat, substantially as specified, according to the vulcanizing process of Charles Goodyear, for the purpose of producing a substance or manufacture possessing the properties or qualities substantially described; and this I claim, whether the said compound of sulphur and gum be or be not mixed with other ingredients, as set forth."

The disclaimer and claim of reissue 557 was as follows: "I do not wish to be understood as making claim broadly to a manufacture or substance produced by the admixture of caoutchouc and sulphur; nor as making claim broadly to a manufacture or substance by subjecting the compound of caoutchouc and sulphur, whether with or without other substances, to a high degree of heat, as, prior to the invention of Nelson Goodyear, caoutchouc and sulphur had been compounded, and such compound alone, as well as other ingredients, had been subjected to a high degree of heat, but not to produce the manufacture or substance having the character peculiar to the said manufacture or substance invented by the said Nelson Goodyear.

"What is claimed, etc., is the new manufacture or sub

Goodyear v. Berry.

stance herein above described, and possessing the substantial properties herein described, and composed of India rubber, or other vulcanizable gum, and sulphur, in the proportions substantially as described, and when incorporated, subjected to a high degree of heat, as set forth, and this I claim, whether other ingredients be or be not used in the preparation of the said manufacture, as herein described."

The defendant was a dentist in the city of Cincinnati, who had used hard rubber or "vulcanite" in the preparation of plate or plates for artificial teeth. Since the bringing of the suit he had begun to use the compound described in the letters patent for "an improvement in dental rubber," granted to Edwin L. Simpson, October 16, 1866, the specification whereof was as follows:

"Be it known that I, Edwin L. Simpson, of Bridgeport, in the county of Fairfield and State of Connecticut, have invented a new improvement in dental rubber, and I do hereby declare the following to be a full, clear, and exact description of the same:

"The rubber now used for dental purposes has incorporated with it large proportions of free sulphur, for the purpose of vulcanizing the rubber after it is formed. The odor and taste occasioned by the presence of this sulphur is extremely obnoxious to many persons, and occasions the principal, if not the only, objection to the use of rubber for dental purposes. To overcome this objection, and produce vulcanized rubber for dental purposes without the actual or apparent presence of sulphur, is the object of my invention, and consists in preparing the rubber for vulcanizing by the introduction of a peculiar vulcanizing compound, for which I have applied for letters patent of even date herewith; and that others skilled in the art may be enabled to prepare and use my improved rubber, I will proceed to describe my manner of so doing.

"I will first describe the vulcanizing compound, as set forth in the specification accompanying my application for patent, as aforesaid.

Goodyear v. Berry.

"I first boil linseed or other vegetable oil to the consistency of honey (this I do to facilitate the preparation), thoroughly mix two ounces of benzoin gum with one pound of pulverized sulphur; then to each quart of the boiled oil add one pound of the prepared sulphur, carefully subjecting this mixture to a moderate heat sufficient only to cause the two substances to react upon each other until they pass from a semi-fluid to a semi-hard state, having a honeycomb or spongy appearance. This forms my vulcanizing compound, and differs from that patented to me February 28, 1865, in that the benzoin gum is added, which, by its vaporizing qualities, more perfectly expels the fumes of the sulphur, as well as the odor from the oil, and renders the compound nearly, if not perfectly, odorless, and when combined with the India rubber, or similar gums, and subjected to a regulated heat, will cause the same to undergo the change known as vulcanizing.

"To produce my rubber for dental purposes, to one pound of India rubber or gutta percha, add ten to fourteen ounces of my above described compound; the greater the quantity of the compound the harder will be the rubber. After curing, twelve ounces I believe to be the proper quantity for general purposes. Thoroughly mix the compound and rubber by grinding between warm rolls. To produce the requisite color, I add chrome red, or lake pink, in quantities to produce the requisite color, and when thoroughly mixed the substance will be in a plastic state, and in this state rolled into thin sheets and ready for the dentist's use.

"The dentist forms the plate in the ordinary manner for other rubber, and when so formed, it should be subjected to a heat of 320 degrees Fahrenheit, for about four hoursproportionately less time as the degree of heat is greater; otherwise treat as ordinary rubber; and the plate thus prepared will be as tasteless and odorless as metal plate, and will not tarnish the fillings or other gold in the mouth of the wearer.

"Having, therefore, thus fully described my invention,

Goodyear v. Berry.

what I claim as new and useful, and desire to secure by letters patent, is: Combining the within described vulcanizing compound with the India rubber in the proportions herein named, and substantially in the manner and for the purposes specified.

"EDWIN L. SIMPSON."

A. Pollok, T. D. Lincoln, and J. H. B. Latrobe, for complainants.

S. S. Fisher, for defendants.

OPINION OF THE COURT:

The bill alleges an infringement, by the defendant, of two reissued patents to Henry B. Goodyear, as administrator of Nelson Goodyear, dated May 18, 1858, for an improvement in making hard rubber or vulcanite. These reissued patents were extended for seven years from May 6, 1865. The infringement charged consists in the use of hard rubber by the defendants, as plates for the insertion of artificial teeth. The bill prays for an injunction and an account of profits.

The history of the invention covered by complainant's patent is briefly this:

In June, 1844, Charles Goodyear applied for and obtained a patent for an improvement in the process of preparing India rubber, or caoutchouc. In December, 1849, this patent was surrendered and a reissue granted on an amended specification. And, subsequently, another reissue was obtained. These patents embrace substantially the mode of producing a soft and plastic article known as vulcanized rubber, by subjecting the rubber, in combination with sulphur and other ingredients, to a high degree of artificial heat. The article produced by this process was called vulcanized India rubber, and was used for the various purposes contemplated by the inventor.

In May, 1851, Nelson Goodyear obtained a patent for a new and useful improvement in the preparation of India

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