
    POLYDORE S. THOMSON v. THE UNITED STATES.
    No. 16611.
    [Decided December 14, 1891.]
    
      On the Proofs.
    
    The claimant patents a mail bag described as “ having a bottom with twrned-vp dreimferential flanges, and having sides overlapping said fla/nges, and seeured thereto hy two or more rows of metal-headed rivets.” The m^ail bag used by the Government, both before and after the patent, has a narrow flange and one row of rivets.
    I. Merely broadening the turned-up flange of a mail bag and constructing it with two rows of rivets instead of one can not be considered an invention; it involves merely mechanical skill.
    II. If a patent rest? on the narrow ground that a mail bag shall contain a broad flange secured by “two or more” rows of rivets, a bag with a narrow flange secured by one row is not an infringement.
    
      
      The Reporters1 statement of tbe case:
    The following are the facts of this case, as found by the court:
    I. In the spring of 1875 plaintiff caused to be constructed three sample leather mail pouches, containing what he alleged to be his invention, which is described in the specifications upon which letters patent were afterwards issued to him (see finding v) and of which claimant’s Exhibit 3, which is made a part of this finding, is a sample. These three bags plaintiff toot to Washington about May, 1875, and in the Post-Office Department he exhibited them to the Postmaster-G-eneral (Mr. Jewell) and to the chief of mail equipment (Mr. Johnson) and left them in the Department.
    II. Plaintiff testifies that Mr. Jewell said “he thought the bag the best he ever saw. I told him I brought it down according to his advertisement. * * * He wanted to know whether I had patented it or not. I told him that my getting it patented depended upon his decision whether he could use it or not. He said, ‘ I like it very much, and would like to use it; ’ and wanted to know what I expected to get as compensation or royalty. I told him that I understood that a man in Maryland, whose name I think is Lamsden, or Lamden, that he was drawing a royalty on the top, and that he was getting 25 cents on each mail bag, and I would be satisfied with that; and I claimed that my improvements were worth ten times as much. He [Mr. Jewell] said that would be all right.” Plaintiff also testified that subsequently he again saw Mr. Jewell in the Post-Office Department, in Washington, when “I [plaintiff] said that I understood that he had given out a contract to have the United States mail bags made with my improved bottom, and what about my royalty? Aud he said, ‘Mr. Thomson, your royalty will be all right.’” Plaintiff also testified that again, later, in a conversation, “ I asked him about my royalty again, and he said that it would be all right.” There is no testimony as to these conversations other than that of plaintiff above recited. Mr. Jewell is dead.
    III. March 30,1875, the Postmaster-General of the United States issued proposals for mails bags by an advertisement, as follows:
    
      “ Post-Oeeice Department,
    “ Washington, D. G., March 30,1875.
    
    “ Sealed proposals will be received at this Department until 12 o’clock noon, tbe thirty-first day of May next, for furnishing by contract for four years from the first day of July, 1875, such quantities of mail bags as may from time to time be required and ordered, of the description following, to wit:
    “ Class A. — Leather mail pouches, adapted to railroad, steamboat, and wheel conveyances, of sizes as follows:
    “ Size No. 1. — Forty-eight inches in length and sixty inches in circumference.
    “Size No. 2. Forty-one inches in length and forty-eight inches in circumference.
    “ Size No. 3. Thirty-six inches in length and forty-two inches in circumference.
    “ Size No. 4. Thirty inches in length and thirty-six inches in circumference.
    “ Size No. 5. Twenty-six inches in length and twenty-eight inches in circumference.
    “ The body of these pouches is to be made of good and substantial bag leather, well tanned, weighing, for sizes numbered 1 and 2, not less than eight ounces and for the smaller sizes not less than seven ounces to the square foot; the bottoms, handles, and flaps to be of good skirting leather, well tanned, and the seams to be well and strongly secured with the best tinned iron rivets and burs and washers, the latter not more than one inch apart.
    “Each of the leather pouches contracted for is to be provided with a metallic label case or holder like those now in the service, or of any equally good or of any better pattern; and separate proposals, with samples, will be received and considered for such quantities of label cases as may from time to time be required and ordered separately from and in addition to those attached to the pouches which may be contracted for.*
    “No proposal will be considered which is not accompanied with a sample of every article bid for, showing the construction, size, and quality of materials and workmanship proposed to be furnished.
    “The construction of the mouth or opening of each of the pouches and bags of classes A, B, and C must be such as will admit of its being locked with a padlock, and when so locked will secure its contents from any abstraction that may be attempted without opening the lock, or without any traceable mark of violence left upon the bag or pouch.
    “No model or particular device for that object is prescribed; the skill and ingenuity of bidders, hereby invited, being expected to supply, by their specimens, suitable modes of construction, from which the best and cheapest for the purpose can be selected.
    
      “ Suitable improvements or modifications in tbe construction, as well as material and style of'manufacture, of any of tbe classes of mail bags bere described are invited, and tbe relative value and utility, as well as specified price, of any sucb improvements or modifications will be taken into consideration in determining tbe lowest and best bid.
    “But every accepted bidder, whatever may be tbe construction of his samples offered, will be bound not [sie.] to warrant tbe same not to infringe any patented invention of which be is not tbe grantee and assignee.
    “Every patented article that maybe contracted for must be furnished by tbe contractor free from any charge or claim whatever for royalty or use of patent.
    “Marshall Jewell,
    “ Postmaster- General.n
    
    IY. Tbe Postmaster-G-eneral of tbe United States, September 21, 1875, issued another advertisement for proposals for mailbags, as follows:
    “Post-Oeeice Department,
    
      11 September 21,1875.
    
    “Sealed proposals will be received at this Department until 12 o’clock noon tbe eighteenth day of November, 1875, for furnishing by contract for four years from tbe first day of July, 1875, such quantities of leather mail pouches as may, from time to time, be required and ordered; sucb pouches to conform in every respect to tbe samples on exhibition in this Department, and in tbe post-offices at Boston, Hartford, Hew York, Philadelphia, Cincinnati, Louisville, St. Louis, and Chicago.
    “Specifications of tbe construction and materials of these Samples will be furnished on application to the Second Assistant Postmaster-General. Bidders, before submitting proposals, should therefore carefully examine such samples, and compare them with the specifications referred to.
    “Marshall Jewell,
    “ Postmaster- General.
    
    “Post-Oeeice Department,
    “Oeeice oe Second Ass’t P. M. Gen’l,
    “ {Mail Equipment Division), Washington, D. G.
    
    “ Specification of the sample of standard leather mail pouches referred to in the advertisement for proposals dated 21st September, 1875, viz:
    “ Pouch of size No. 1. — Body.—Dimensions: Forty-eight inches in length and sixty inches in circumference.
    “Leather: Leather maybe tanned with either oak or hemlock, but not by the use of acids or chemicals; finished in russet,boarded, lightly stuffed, soft and pliable,yet firm; of good-color, and weighing .not less than 7£ ounces per square foot.
    “Construction: Composed of two pieces of such leather (free from any flanky parts),each forty-eight inches long and thirty and three-fourths inches wide, joined together lengthwise by two seams, each formed by lapping throe-fourths of an inch, and secured by rivets and burs, as exhibited in the sample. Whenever one of these pieces can not be got out of a side of leather so as to be entirely free from flankyparts, a patch of good and solid leather may be substituted for the flanky part, as shown in the sample.
    
      “Bottom — Leather: Bark-tanned, of best quality, russet, and weighing not less than eight and a half ounces to the square foot.
    “Construction: Circular form, struck up with a vertical rim, two inches wide, over which the body is lapped and secured thereto by two parallel rows of rivets and burs, the two rows and the rivets in each row being one inch apart.
    - uPouch of size No. 2. — Bottom.—Leather and construction: The same as described for pouch of size No. 1, the only difference being in the reduced circumference, as shown in the sample of size No. 2.
    “ Pouch of size No. 3. — Bottom.—Leather and construction: The same as described for pouch of size No. 1, the only difference being in the reduced circumference, as shown in the sample of size No. 3.
    
      “Pouch of size No. 4. — Bottom.—The same in every respect as described for pouch of size No. 1, the only difference being the reduced circumference, as shown in sample of size No. 4.
    
      “Pouch of size No. 5. — Bottom.—The same as described for pouch of size No. 1, excepting the reduced circumference, and the vertical rim being one and a half inch only wide.
    “James N. Tyner,
    
      “Second Assistant Postmaster-General.
    
    V. November 17,1875, the claimant made an application to the Patent Office, claiming to have invented a new and useful improvement in mail bags, which claim is specifically set forth in letters patent dated December 21, 1875, being No. 171250, as follows:
    
      “ (United States Patent Office. Polydore S. Thomson, of Jersey City, New Jersey, Specification forming part of Letters .Patent 271250, dated December 21, 1875; application filed November 17,1875.)
    “IMPROVEMENT IN MAIL BAGS.
    “Be it known that I, Polydore S. Thomson, of Jersey City, in the county of Hudson, and State of New Jersey, have invented a new and useful improvement in mail bags; and I do hereby ele, cl are the following to be a full, clear, and exact description of the same, reference being had to the accompanying drawings, forming part of this specification, in which my invention is represented by a perspective view, a portion of the wall of the bag having been broken away to reveal the interior construction.
    “The object of the invention is to improve the construction of leather mail bags, so as to cause them to retain their form more perfectly, and to prevent them from wearing away at the edge around the bottom by being drawn along over the ground when filled. To this end the invention consists in a mail bag having its bottom formed with a turned-up flange around its edge, which flange fits into or around the lower edge of the sides of the bag,, and is secured thereto by two or more rows of headed rivets that protect the outside of the bag from injury.
    “In the drawing, B is the bottom of the bag, made in substantially circular form, and provided with a turned-up flange b around its edge, as shown, said flange being preferably from an inch and a half to two inches and a half in width. S is the bag, into or over the end of which the bottom B is closely fitted, and to which it is secured by means of two or more rows or metal rivets, a a, headed on the outside or on both sides.
    “The leather at the flange b is thus of double thickness, and the two thicknesses, secured together along their upper edge and also along their lower edge, form a stout, strong, but sufficiently flexible rim at the bottom of the bag, which keeps the bag in shape, whether filled or empty, and the heads of the. two rows of rivets effectually protect the outside of said rim from injury when the bag is dragged along the ground.
    “A narrow rim secured together by a single row of rivets will not answer the purpose, as it will turn under and allow the bag to get put of shape and the unprotected leather to drag on the ground. Three rows of rivets will answer the purpose, but practically no better than two rows, although more expensive.
    “With two rows of such rivets as are ordinarily used in mail bags, and a flange wide enough to give each row a good hold upon the leather without being too near the edges thereof, every essential condition is fulfilled.
    “Having thus described my invention, what I claim as new and desire to secure by letters patent is—
    “A mail bag having a bottom with turned-up circumferential • flange, and having sides overlapping said flange, and secured thereto by two or more rows of metal-headed rivets, substantially as described.
    “Polydore S. Thomson.
    “Witnesses:
    “E. C. Weaver.
    “F. McKenny.
    
      “Thebottom patented is the same as that shown in Exhibit No. 3.”
    YI. December 29,1875, the Postmaster-General issued the tollo wing order referring to plaintiff’s patent:
    “POST-OeEICE DEPARTMENT,
    
      “Washington, D. C., Deo. 29,1876.
    
    “Whereas, since the advertisement of the 21st Sept., 1875, for proposals for furnishing leather mail pouches hy contract and after a contract was awarded in pursuance thereof, a patent has been granted as I am advised, for the manner of securing the bottoms’of such pouches, precisely as described by the specification and exhibited by the samples of this Department referred to in the said advertisement: Therefore, to avoid any conflict with such patent, it is hereby ordered, in pursuance of the 4th section of the said contract, made with John C. Eeltman, that the following alterations from the said specifications and samples be made in the pouches to be furnished, namely: The bottoms are to be struck up with a rim or flange one inch wide, instead of two inches wide, over which the body is to be lapped and secured thereto by one row of rivets and birrs, instead of two parallel rows of rivets and burs, and the rim or flange of the bottoms to be applied either upwardly or downwardly as may at any time be ordered by the Department.
    “Marshall Jewell,
    • Postmaster- General.”
    
    YII. Between the 1st day of July, 1876, and the 1st day of April, 1889, the defendant caused to be made and used in the postal service 134,436 leather mail pouches. All of said mail pouches were constructed of leather, having a circular bottom with an upturned flange of the width of 1 inch, the body of the bag being placed over said flange, and the two riveted by one row of rivets and burs.
    VIII. — The construction both of the bottom of the bag claimed by the plaintiff' and that of the bag used by the defendant has a tendency to preserve the form of the bag when empty and prevent collapse. The construction of both bags, so far as the one row or two rows of rivets is concerned, has the function of holding together the barrel and bottom of the bag. Whether either one or two rows of rivets will preserve the bag from wear depends upon the angle in which the bags are drawn; naturally the greater the number of rivets the greater the protection of the leather from wear.
    IX. — Mail bags having a circular bottom with upturned flange with the barrel or body riveted thereto with one row of rivets and burs have been used by the defendant long prior to plaintiff’s application for patent.
    X. — Letters patent of the United States were granted to A. L. Pennock and I. Sellers on the 6th day of July, 1818, for a new and useful improvement in the construction of mail bags, tlie same being constructed with, circular bottom, with an upturned flange, the body of the bag being placed over the the same and riveted with one row of rivets; bags of such construction were manufactured by said Pennock and Sellers and used by the defendant in its postal service.
    XI. — As early as March 25,1839, said Sellers and Pennock filed in the Patent Office four completed bags as models in an application for a new and useful invention in mouthpieces for mail and other bags.
    The models so filed are made exhibits herein.
    XII. — The exhibits are made part of these findings.
    
      Mr. James Lowndes for the claimant.
    
      Mr. Assistant Attorney-General Cotton for the defendants.
   Davis, J.,

delivered the opinion of the court:

Alleging a contract with the United States, plaintiff seeks in this action to recover royalty for the use of an improvement in mail bags patented by him. The invention is thus described in the claim upon which letters patent were issued: “ A mail bag having a bottom ¡with turned-up circumferential flange, and having sides overlapping said flange and secured thereto by two or more rows of metal-headed rivets, substantially as described.” The same description applies to the Government bag, except that only one row of rivets is used. Is this reduction in the rows of rivets a material change? Is it an essential part of plaintiff’s patent that there should appear in the bag at least two rows of rivets?

The object of the invention, he states (in the specifications), is to so improve the bags as to cause them to retain their form more perfectly and to prevent them from wearing away at the edge around the bottom by being drawn along over the ground when filled, and “to this end” he constructs the bottom with • a turned-up flange, secured to the bag “by two or more rows of headed rivets that protect the outside of the bag from injury. Further on he expresses preference for a flange “from an inch and a half to two inches and a half in width,” to be secured by means of two or more “rows of metal rivets.” Again he-describes the leather at the flange as of “two thicknesses,” secured together along their “upper edge and also along their lower edge” — here describing at least two rows of rivets — and “ the heads of the two rows of rivets effectually protect the outside of said rim from injury when the bag is dragged along the ground.” Plaintiff expressly says ‘ ‘ a narrow rim secured together by a single row of rivets will not answer the purpose; * * * three rows of rivets will answer the purpose, but practically no better than two rows, although more expensive.” “With two rows of such rivets * * * and a flange wide enough to give each row a good hold upon the leather without being too near the edges thereof, every essential condition is fulfilled.”

The vital elements of plaintiff’s invention, then, are, as he states explicitly, first the broad flange, second the two or more rows of rivets. In the Government bag we find a one-inch flange with a single row of rivets; an essential element of the patented combination being absent. This at first glance seems a very narrow construction of the patent; but if this patent can stand at all it must be upon very narrow ground. The fastening together of overlapping pieces of leather by means of a row or two or more rows of rivets is ancient. The circular mail-bag bottom with a flange over which lap the walls of the bag, which are there fastened by a single row of rivets, is nearly as old as the mail service. Merely broadening the flange can not be considered invention, nor can an increase of the number of rivets used in fastening the flange to the bag demand more than mechanical skill. We do not think the combination of the two was a patentable device, but if it were, then the device as patented is not found in defendant’s bags. Petition dismissed.

Weldon, J., did not sit in this case and took no part in the decision.  