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THE CORN PLANTER PATENT, 90 U. S. 181 (1874)
U.S. Supreme Court
The Corn Planter Patent, 90 U.S. 23 Wall. 181 181 (1874)
The Corn Planter Patent
90 U.S. (23 Wall.) 181
1. Five reissues were granted on a surrendered patent, granted originally in 1853 to G. W. Brown, for improvements in corn planting machines. On two bills, one against Bergen & Sisson and the other against Selby et al. For infringement, four of these reissues were sustained and one declared void for want of novelty.
2. Out of five reissues granted on a surrender of a patent granted in 1855, four were declared invalid for want of patentable novelty, and one reissue, No. 1095, was declared valid.
3. An invention described in an application for a patent filed in the Patent Office is not of itself a bar to a subsequent patent therefor to another. Such an application may have a bearing on the question of the defense
of prior invention or discovery, but will not of itself take such prior invention or discovery out of the category of unsuccessful experiments.
4. The several reissues, Nos. 1036, 1038, and 1039, held to be good as being for things contained within the machines and apparatus described in
the original patents, although not claimed therein. Any question of fraud in obtaining these reissues is to be regarded as settled by the act of the Commissioner of Patents in granting them.
5. Reissues Nos. 1036, 1038, and 1039 are not obnoxious to the objection that they are for substantially the same combination, and therefore not for distinct parts of the original machine.
6. The use of the words "substantially as and for the purposes set forth" in a claim throws it back to the specification for qualification of words otherwise general.
7. The claim of Reissue No. 1036, thus construed, held to be valid and to he for two separate frames -- one having two wheels and the other two runners.
8. The defendants held to have infringed it.
9. Reissue No. 1037 declared void for want of novelty.
10. Reissue No. 1038 held to cover the combination of two separate frames, one having two wheels and the other two runners, when they are combined together by a hinged joint.
11. The defendants held to have infringed this claim, although in one, Selby's machine, the hinge is located at a different part of the machine, the office, purpose, operation, and effect being the same. A change a little more or less backward or forward held not to change the substantial identity.
12. A patentee by his claim as to what he regards as news by necessary implication disclaims the rest as old, and such remaining parts are to be regarded as old or common and public.
13. Claim 1 of Reissue 1039, if construed simply as claiming the placing of the dropman on the machine, would probably be held void as claiming a mere result irrespective of the means by which it is accomplished; but if construed as claiming the accomplishment of the result by substantially the means described in the specification, it is free from that objection. Such claim should be construed in this limited manner if possible in order to save the patent.
14. Claim 2 of Reissue No. 1039 embraces the combination consisting of one frame, the runner frame having the seat for the dropman, and another frame, the wheel frame, having a lifting lever fulcrumed to it. The defendants held to have infringed this claim, although the levers used, in themselves, were different in form and point of attachment from the appellant's lever.
15. Reissues Nos. 1091, 1092, 1093, and 1094 declared void for want of sufficient invention to constitute patentable novelty.
16. The combination (in 1091) of a seat for a driver, on a machine which had a dropman's seat on it when a driver's seat had been used on a similar machine before, but without a dropman's seat thereon, does not constitute a patentable invention.
17. The Reissue 1095 explained, and the novelty of the combination for effecting double dropping pointed out. Both the defendants held to have infringed the claim of this reissue.
G. W. Brown filed two separate bills in equity in the court below against Bergen and Sisson in the one case and against Selby and others in the other case, charging them respectively with infringement of certain letters patent granted to him, Brown, for improvements in corn planting machines, being reissues of previous patents, and praying for an account of profits, for injunctions, and for general relief. The defendant in the first case filed an answer, and two amended answers, setting up, in general, that the complainant was not the original and first inventor of the improvements patented to him, but that the same were previously known and used by various other persons named in the answers, and that the reissued patents of the complainant were fraudulently obtained, and they denied that they infringed the complainant's patents. The pleadings in the other case were substantially the same. Much testimony having been taken, the causes were heard together before the circuit court, and the complainant's bills were severally dismissed. The appeals were from the decrees dismissing them. Bergen, one of the original defendants in the first case, having died, the cause was revived in the name of his executor, one Guild, who, with the other defendant, Sisson, were the now appellees in that case.
The invention as to which the controversy in the cases arose is one which is called "a check row corn planter" -- an invention intended to facilitate the planting of Indian corn (maize) in the best way.
This sort of corn, as most persons have observed, is usually planted in rows -- rows from three feet ten inches to four feet apart. It requires to be so planted in order that the spaces between and all around the hillocks in which it is planted may be ploughed, after the corn begins to grow, or (to use the technical term) that the corn may be "cultivated." For if weeds are allowed to grow about the corn, they impair its strength and diminish its productiveness.
Prior to the time when "the check row corn planter" was
devised, and while, of course, all planting was done by hand, farmers used to secure the planting, properly, in rows, with the grain at right distances from each other, in this way. They made a series of transverse scratches or marks across the field, as shown by the black lines a b in the design below.
Then, when they came to plant, they ploughed transversely, as shown by the dotted lines c d, and at the intersections e e of the furrow c d, with the scratched line a b, they dropped the corn. The corn therefore grew in regular rows, and could be "cultivated" by means of a plough drawn by a horse who went between the rows in both directions.
But this operation of drawing great numbers of lines and ploughing in two directions across large fields, and of dropping the corn by hand at the intersections, was a slow and laborious one, and one requiring great care in order to be accurately done.
The object of the improvement under consideration in these cases was to do this work -- that is to say, to plant the corn in the best way in hills at exact and proper distances apart -- dispensing with much of the former labor.
The first and principal question in the causes was whether the complainant, Brown, was the original and first inventor
of the improvements claimed by and patented to him, or whether he was anticipated therein by other persons named in the answers of the defendants.
As set forth in the bill, the first patent obtained by the complainant for one portion of his alleged invention and improvement was granted to him on the 2d day of August, but antedated the 2d day of February, 1853. This patent was surrendered on the 16th day of February, 1858, and a new patent was issued in lieu thereof upon a corrected specification. This reissued patent was also surrendered on the 11th day of September, 1860, and in lieu thereof five new patents were issued upon five several corrected specifications, which new patents were numbered respectively reissues 1036, 1037, 1038, 1039, 1040, each one being for a distinct and separate part of the original invention, alleged to have been made by the complainant.
On the 8th of May, 1855, a patent was granted to the complainant for certain improvements on his corn planter, which patent was, on the 10th day of November, 1857, surrendered, and a new patent was issued in lieu thereof on a corrected specification. This last patent was also surrendered on the 11th day of December, 1860, and five new patents were issued in lieu thereof on five amended specifications, each being for a distinct and separate part of the improvements intended to be secured by the patent of 1855. The last mentioned patents were respectively numbered reissues 1091, 1092, 1093, 1094, and 1095. Copies of all the reissued patents of both series were annexed to the bill. Upon the taking of proofs in the cause, copies of the two original patents, and of the first reissues thereof, as well as the reissued patents on which the bill was founded, were put in evidence, together with full and detailed drawings and models of the complainant's original and improved machines.
The defendants, in their answer and the several amendments thereof, referred to many machines, patents, and applications for patents which, as they alleged, embodied all the improvements of the complainant's machine, and antedated
the same. These will be more particularly referred to after the features of the complainant's machine have been described.
The original machine, the patent for which was granted to the complainant on the 2d day of August, 1853, and the application for which patent was dated the 27th of September, 1852, is shown in perspective in Figure 2, and consisted of the following parts:
1. A framework supported on two runners -- the latter being used for cutting a gash or furrow in the earth to receive the seed -- each runner having a cleft at the rear end for allowing the seed to drop to the ground, and furnished with a hopper above, containing oscillating horizontal valves for dropping the seed at proper intervals into the gash or furrow through a tube in the heel of the runner.
2. Another framework, following the first, and supported on two wheels or rollers to follow the runners and press the earth down upon the seed in the gash or furrow.
The relation of the runners A to the covering wheel W is shown at Figure 3, which is a side view of Brown's machine.
3. A free or jointed connection between the two frames, allowing them to rise and fall independently of each other
in going over inequalities of surface. This jointed connection was formed by a bolt passing through the arm J, Figure 3, at the point I.
4. A system of levers resting on the axle of the wheels under the rear frame, shown at L, Figure 3, and so applied to the forward frame as to enable the driver to raise the runners out of the ground for turning about or for any other purpose, with a further arrangement for regulating the depth of the furrow or gash made by the runner.
The complainant's machine was a hand dropping machine, and it was so arranged that a man could be mounted upon it so as to ride sidewise, and observe the lines or furrows which had been made across the field. Whenever the runners passed on these lines, the seed was dropped. This was done by means of a connecting rod between the seed valves in the two hoppers, one end attached to each, with a lever to move it backward and forward by the hand of the dropper sitting crosswise on the frame, so that he could by such movement drop the seed from both hoppers at the same time at the intersection of the cross lines marked on the field.
The machine is shown with the dropman placed in his position in Figure 4, and the check rows are seen extending across the field. The machine was described with substantially these parts in the specifications and drawings attached to the original patent of 1853, as well as the several reissues 1036, 1037, 1038, 1039, and 1040.
The improved machine, as patented in 1855, had two additional features, or improvements:
1. A vibrating valve, called a flipper valve, in each seed dropping tube, which valve is composed of a long slender slip of metal attached to a pivot in the middle, connected by a small attachment to a slide valve having two openings, so that when the top is moved to one side of the tube the bottom moves to the other side. By one movement, the seed drops through the slide valve into one side, and is detained near the bottom till the next movement, when it is dropped on the ground, and seed is admitted simultaneously through the slide valve into the other side. The two positions of the flipper valve, slide valve, and lever are shown in Figures 5 and 6. The effect of this arrangement is that the seed
is near the bottom of the furrow when it is dropped, so that it is immediately deposited in line with the check row. And the peculiarity of the apparatus is such that it requires but one movement of the levers above to drop for a single hill.
2. Another improvement was a high, long seat for the driver on the rear frame, located above the wheels lengthwise of the machine, so that by moving backward or forward on the seat, his weight will raise or depress the runners.
The only claims allowed by the Patent Office upon the original application in the patent of 1853 were:
"1st. The oscillating horizontal wheels or distributors (namely, the valves before referred to), in the bottoms of the hoppers, having slots and holes of various sizes, in combination
with the stationary caps and pins for the discharge of different kinds and quantities of seeds, as set forth in the specification."
"2d. The arrangement of the covering rollers, mounted as described, and performing the purpose of covering the seed, elevating the cutters in turning round, and also in adjusting to different depths, as set forth."
Other claims were applied for, but were disallowed.
The five reissues, or new patents, issued September 11th, 1860, in lieu of the original patent of August 2d, 1853, and of its first reissue in 1858, were for a number of supposed distinct inventions comprised in the machine, and each contained one or more separate claims. None of these distinct inventions were claimed as distinct features in the original patents, nor were they claimed as such in an intermediate reissue granted in 1858, but they are shown distinctly in the original drawings and were described in the specification of the original patent.
The only claim allowed in the patent of May 8th, 1855, for the improvements added to the machine, was as follows:
"In combination with the hoppers and their semi-rotating plates d, the runners A with their valves f, and their adjustment by means of the levers and cams, and the driver's weight for the purpose of carrying and dropping seeds by each vibration of the lever D, and to regulate the depth of the planting, as described."
By the reissue of December 11th, 1860, this patent was subdivided into five new ones, each having one or more separate claims for supposed distinct inventions which were comprised in the drawings of the original patent, and in the descriptive part thereof.
Upon the first question, that of novelty, the defendants referred in argument to Cooke's well known "drill," and other like machines described in the Farmer's Encyclopedia, and to an old machine of Joab Moffatt; but the principal prior machines relied upon by them as anticipating the invention found in Brown's patent of 1853 were the following:
1. The cottonseed planter of Thomas, patented in 1848, which the complainant contended was different from his corn planter. This machine is described in the opinion of the court, [Footnote 1] and illustrated at Figure 7.
2. Henry Todd's seed planter, patented December 13th, 1843, which is also described in the opinion, [Footnote 2] and illustrated
in Figure 8. The complainant contended that this was a different machine.
3. Earle's planting plough, patented in 1848. This, described in the opinion, [Footnote 3] was an automatic corn planter, and, as argued by the complainant, was wholly unlike his planter.
4. Mumma's seed drill. This, also described in the opinion, [Footnote 4] was, however, not strongly relied upon by the defendants.
5. Remy & Kelly's machine. This machine is described by the court, [Footnote 5] and is illustrated in Figure 9. For this a
patent had been applied for in June, 1850, but the application was then rejected and withdrawn. An experimental use of the machine was also proved.
Upon this condition of things, the question under this fifth machine was much discussed, as to what position, as a defense, a description of a machine contained in a prior rejected application occupied, and if it was not a good defense by itself, how far it might be considered in connection with a prior experimental use in establishing an anticipation of a patented invention.
6. Three prior machines of James Abbott, which were produced by the defendants. These, the complainant contended, were unsuccessful experiments, if indeed they were prior in date to his invention. The two principal of these
machines are described by the court, [Footnote 6] and illustrated in Figures 10 and 11.
7. John Kirkman's unpatented machine. This was much relied on by the defendants, but the complainant contended that it was materially different from his corn planter in having but a single frame in which were both runners and wheels, instead of two independent frames with runner and wheels like his. It was also insisted that on the evidence it was subsequent in date to his. It is described in the opinion of the court, [Footnote 7] and illustrated at Figure 12 on the next page.
8. Joab Brown's corn planter, said to have been used in 1850 and 1853, and another corn planter for which he applied for a patent in December, 1852, were also adduced. The complainant contended that the machines of 1850 and 1853 were unsuccessful and abandoned experiments, and that the machine for which the said Joab Brown applied for a patent in 1852 was wholly unlike his, the complainants',
machine. This last machine of Joab Brown is analyzed in the opinion, [Footnote 8] and illustrated at Figure 13.
Besides these, the defendants set up and relied upon the machine of Charles Finn and of Jarvis Case as containing the double dropping device, claimed by the appellant in Reissue No. 1095.
The double dropping devices in these two machines are described and illustrated in the opinion of the Court, [Footnote 9] and shown further on the Figures 23 and 24, page 200.
Upon the question of infringement there was much discussion.
The conclusion arrived at by the court, in declaring the complainant's reissued patents 1037 void for want of novelty, and also the reissued patents Nos. 1091, 1092, 1093, and 1094 void, as not containing patentable novelty, obviates the necessity of here referring to the infringement of the several claims of those patents.
As to the infringement of the other claims, it was contended that the machine of the defendant Selby, and of the defendant Bergen, infringed the claim of Reissue No. 1036. That claim was in these words:
"CLAIM 1036. Having thus fully described the nature and object of my invention, that I claim under the patent is a seed planting machine, constructed principally of framework, the front part of which is supported on not less than two runners or shoes, with upward inclining edges, and the rear part supported on not less than two wheels, the latter being arranged to follow the former, substantially as and for the purpose set forth."
The defendant Bergen's arrangement is shown, in side view, in Figure 14, and was thus described in his patent:
"The body of the machine consists of a frame B, mounted on runners, and a rear frame A, mounted on wheels, the two frames being united by a flexible joint, so arranged that it can be rendered rigid under certain circumstances."
The complainant contended that as the machine had two distinct frames, one frame resting on a pair of rollers and the other distinct frame resting on a pair of runners or cutters, it was within this claim.
The defendants, besides insisting that this claim was anticipated
by Kirkman's machine, also contended that the Bergen machine did not infringe inasmuch as the pivot or hinge was different and differently located.
The machine made by the defendant Selby is shown in Figure 15, and consisted of two distinct frames pivoted
together. One of these frames was supported on two runners and the other by two wheels.
The claim of the complainant, under Reissue 1038, was as follows:
"CLAIM 1038. Having thus fully described the nature and object of my invention, what I claim under this patent is, in combination with a seed planting machine, constructed principally of framework, with not less than two runners and not less than two wheels, a hinge joint between the point of the tongue and the rear part of the machine, so that one part of the framework may be raised, lowered, adjusted, or supported on the other part, substantially as described."
The mode of attaching the front and rear frame in the defendant Bergen's machine is shown in Figure 16, on the next page, and was thus described in Bergen's patent:
"I construct my seed planter in two parts, consisting of two frames of equal width and suitable strength, coupled together. . . . These frames are coupled together by a slotted joint at
each side of the frame, to permit either frame to have a varying vertical movement without changing the position of the seed tubes or varying the depth of the planting."
A peculiar hinge, shown at Figure 17, was employed by Bergen, and the appellees contended that Brown was to be limited to his peculiar hinge, and that Bergen's machine had a different hinge.
The arrangement of Selby, the other defendant, is shown in Figure 18. He also had two separate frames pivoted together, but the pivoting or hinging was effected by extending the rear frame forward and pivoting the front end of the runner to the projection of the rear frame. It was contended by the defendants that on this account, in the Selby machine, the two frames, although hinged, were combined together in a substantially different manner, and therefore
that it was no infringement. The complainant insisted that although the place of uniting the two frames together was different in the two machines, and the hinges were peculiar,
yet the pivoting of these frames together caused the combined action to be exactly alike.
The claim of Reissue 1039 was in these words:
"CLAIM 1039. Having thus fully described the nature and object of my invention, what I claim under this patent is in a seed planting machine wherein the seed dropping mechanism is operated by hand or by an attendant, in contradistinction from 'mechanical dropping;' the mounting of said attendant upon the machine in such a position that he may readily see the previously made marks upon the ground and operate the dropping mechanism to conform thereto, substantially as herein set forth."
The complainant urged that this was not for the mere putting of a seat on the machine, but for so arranging the several parts that a dropman could be located in a position to see the marks on the grounds and work the seed valves, and that in both the Bergen and Selby machines the same arrangement of the several parts of the respective machines had been made; that a man could be located there in a sitting position and do his work.
The arrangement of Brown's seat is shown is Figure 19, on the next page, and was between the two seed boxes, and so that he could sit sidewise astride and observe the marks.
The Bergen seat was in like manner located between the
two seed hopper boxes, and so that the dropman could sit astride of the seat and look sidewise across the field.
The arrangement for Selby's seat is shown in Figure 15, [Footnote 10] and was in the same position as Brown's.
It was contended by the complainant that as no one had ever arranged the several parts of a corn planter so that a man could sit upon the machine in a position to watch the marks on the ground and at the same time work the valves, the manner of organizing these several parts, by which he could sit there and work the valves, involved invention, and this was not like the mere putting of a driver's seat on a machine in positions where drivers' seats had been accustomed to be placed, for the mere purpose of driving the machine.
The opinion of the court, as already stated, dispenses with the necessity of reference to the question of infringement of the second group of reissues, except Reissue No. 1095.
The claim of the reissue 1095 was in these words:
"CLAIM 1095. Having thus fully described my invention, what I claim under this patent is so combining with a lever, by which both may be operated, a valve or slide in the seed hopper and a valve in the seed tube as that a half motion of the lever by the operator, riding on the machine by which they are operated, shall both open and close the seed passages at regular periods, and pass measured quantities only, substantially as described. "
It was contended on behalf of the complainant that this was a claim for a combination, as shown in Fig. 20, consisting
of a lever l, a sliding valve in the bottom of the seed boxes having two openings, a and b, and a vibrating valve in the seed tube extending throughout the length of the seed tube, which valve, when vibrated in alternate directions formed alternate passages in conjunction with the opposite sides of the seed tube, so that when vibrated in one direction this seed tube valve formed, with the side of the seed tube, a passage E, which, in connection with the opening b, in the hopper valve, caused the seed to descend into the seed tube and be retained at the bottom of the seed tube. When the lever was vibrated in the opposite direction, the valve in the seed tube moved into the position E' (Figures 21 and 22),
so as to open on one side a passage to the ground for the seed previously deposited in the seed tube, and at the same time opened a passage for the seed through the seed hopper slide valve into the seed tube on the opposite side of the vibrating valve from that shown in the first position. The mode of combining their several elements -- namely, the lever, the valve in the seed hopper, and the valve in the seed tube --
was substantially similar to that of the complainant. So that the vibration of the slide valve, at the bottom of the seed hopper, caused the tube valve to vibrate in proper relation thereto.
Two devices were set up as anticipating Brown:
1st. That of Jarvis Case, whose device, in its two positions, is shown in Figures 23 and 24.
This machine was like Brown's in that one muscular effect did the work of opening and closing the hopper valve and seed tube valve, but the seed tube valve was not double-acting, and a spring returned it to its place, and the operator had to overcome the force of this spring.
2d. Finn's machine, which is shown in Figures 25 and 26.
In this last mentioned machine, the seed tube valve and hopper valve were each only single acting, and two motions of the arm of the operator were required in consequence for each deposit of seed. It was contended that Brown's machine differed from Finn's and Case's in containing a lever in combination with a double passage hopper valve and a vibrating valve extending through the seed tube, which
vibrating valve was double acting in the sense of forming, with the opposite walls of the seed tube, alternate passages on each side of the vibrating valve, with each half motion of the operator's arm, thereby saving much labor.
The Bergen dropper and the Selby dropper agreed with Brown's in having each a slide hopper valve having two passages, a double-acting vibrating seed tube valve located within and extending the length of the seed tube, which vibrating valve formed alternate seed passages for the grain to the ground, at each half motion of the operator's arm. The Selby dropper had a lever in combination with these parts, and in the Bergen dropper a handle was substituted for a lever in this combination.
As already stated, the court below dismissed the bill of the complainant, and the present appeals were taken to such action.
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