Schrei v. Morris

87 F. 217, 1898 U.S. App. LEXIS 2574

• Court: U.S. Circuit Court for the Northern District of Illnois
• Decided: April 12, 1898
• Docket: No. 24,328
• Status: Published

Opinion

SHOWALTER, Circuit Judge.

I was under the impression at the hearing of this case that the absorption of the water from the melted ice by the wooden sides of the box, A, of the device, and the process of evaporatiou therefrom, might distinguish the combination in suit as something novel; but, on reading the expert testimony, specification, and the claims, I am unable satisfactorily to sustain the patent on this ground. The sides of the cover, E, are bent over, according to the showing of the specification, merely to run the water off. It is not a feature of the claim that the sides of the box, A, are made of wood, nor in the specification does it appear as part of the invention that the water must run down the sides. The expert, moreover, who testified on complainants’ behalf, seems to say that the measure of invention would be the same regardless of the material made use of in the construction of the box, A, whether of wood or of metal. In their printed argument counsel for complainants have made a “summary of evidence” in 11 paragraphs. In no one of these is the evaporation from the wooden sides of the box, A, put forward as a clear and distinctive quality of the paientee’s combination, — -a something which would and does in fact distinguish the same in mode of operation and result from prior devices. This feature, if it be really a feature at all, is not even mentioned or suggested in the said summary of evidence. It was, as I understand, a common practice in the art of refrigeration to make a structure with a metal-lined compartment above to hold the ice, and having drains to run off the water, and a compartment below for the articles to be preserved. At all events,' — and if the evaporation at the sides is so far fanciful or theoretical as to amount to nothing in the way of distinguishing the complainants’ device, — such structures as that of Douglas or Col-ton, for instance, seem to preclude the novelty of the combination in suit. The combination in suit specifies a metallic cover, E. Aside from this requirement, two equivalent methods of structure are shown in the specification. In one the cover, F, telescopes, as an ordinary box cover would, over the sides of the box, A, and rests on cleats. This cover is nailed or otherwise secured to the box. A. The function of the metallic cover, E, is to hold the ice and run the water off at the sides. How far it shall extend over the sides, provided it keeps the water from the interior of the box, A, seems to be a matter of no consequence. If the claim be construed with reference to the method of construction last above referred to, as put forth in the specification, then all the elements are found in the Douglas device. This, upon the assumption that the shape of the structure, whether rectangular or cylindrical, and the material, other than that of the metallic cover, E, out of which it is made, are not essential to the invention. I think the bill must be dismissed for want of equity.