Bnrrrmoizm OAR-WEEEL co. v. Norms; BALTIMORE mssunomn mr. oo. 49
The complainant contends that the word "oblong" in this claim is
merely descriptive and not limiting, because making the tube on the “
axle-box oblong in the Stewart device had nothing to do with the dust-
excluding feature, which was the subject of the first claim, and was
merelya convenience for its use in connection with the peculiar cres-
cent-shaped bearings, which had nothing to do with excluding dust,
which were the subject of the second claim, and that the original pat-
ent contained and disclosed clearly the dust-excluding invention
claimed in the reissue, viz., the combination of the two tubes,,one
fitting within the other to exclude dust.
I If the first claim of the Stewart reissue be valid, and this the con-
struction to be put upon it, then it becomes important to examine the °
defense of want of novelty set up by the respondent's answer, and to
determine whether it was new and patentable, at the date of the
Stewart patent, to combine the two tubes, without the flanges and
without the oblong shape, one fitting within the other, for the pur-
pose of excluding dust from the bearings of axles. In support of
this defense the defendant has put in evidence the following letters
patent, with illustrative models of the devices therein described:
Grannell patent, No. 35,870, July 15, 1862; Beers patent, No. 48,-
899, July 25, 1865; Gillett patent, No. 52,561, February 13, 1866;
Steele patent, No. 62,231, February 19, 1867; Mansell patent, No.
14,089, April 24, 1852. A careful examination of these devices,-
aided by the clear statement of their several characteristics contained
in the expert testimony and in the brief of the learned counsel for
respondent, satisfies me that this defense is made out. It was not
new, and did not require invention at the date of the Stewart pat-
ent, to construct a wheel and axle so as to have a projection on one
to fit into a tubular recess on the other, for the purpose of obstruct-
ing the entrance of dust between the bearings of the axle and the box.
These patents show that it had been done in making carriage—wheels;
that it had been applied to loose wheels for cars; and even if it be a
fact that it had never before been applied to car—wheels Hxed upon
the axles, such an application would not require invention, and would
be me1·ely a double use. I think there can be no doubt that if the
first claim of the Stewart reissue receives the construction contended
for by complainant’s counsel, and which is absolutely required to
make the complainant an infringer, then it must be held void for
want of novelty. This view of the state of the art would seem to
have controlled the action of the commissioner of patents, who re-
fused to grant the reissue, striking out the word "oblong," and gave
as his reason: “The main tubes, B and C, without the subordinate
flanges, a and b, is substantially the same as the ordinary carriage- r
hub and its projecting flange, and the arrangement and purpose are
identical." It would seem, therefore, that there was nothing new in
the Stewart device except the flanges, which were designed to in-
crease the obstructions to the entrance of dust, and the oblong shape,
v.21 *,no.1—4.·