
    WILLIAM W. HUBBELL v. THE UNITED STATES.
    [No. 13793.
    Decided June 1, 1885.]
    
      On the Proofs.
    
    The claimant seeks to recover royalty for cartridges manufactured by the government of a device covered by his patent. He alleges an implied contract under the decision in McKeever’s Case. The government shows that the Ordnance Department manufactured the same kind of cartridges anterior to the i>atent. The claimant, to show that he was the first inventor, puts in evidence a number of applications for patents previously filed by him.
    
      I.In an action to recover royalty upon implied contract, if the question of priority be raised, the patentee may go into such history of his efforts and achievements in the art as tend to show that he was the first inventor of the thing afterwards patented.
    II.The claimant’s patent of 1879 for a breach-loader cartridge, consisting of a combination of a circular base containing the fulminate, of the anvil over it, and of apertures or vents so arranged that their inner edges nearly coincide with the wall of the fulminate chamber, is not infringed by the “reloading cartridge” or by the “ cup-anvil cartridge” of the Ordnance Department, used in the United States service.
    III. Where an inventor o.f a cartridge aimed in 1865 at .quick ignition through concentrated fire (i. e., through a central vent in his anvil); and in 1878 sought the same result through diffusion of the fulminate flame (i. e., through two vents at the extreme outer edges of the fulminate chamber) it must be held that the devices are different, and that the earlier one cannot be used to establish priority of invention for the later.
    IV. If in the Hnbbell cartridge patent 1879 the relative position of the vents and the wall of the fulminate chamber is a material part of the invention, the government cartridges (in which this feature does not appear) constitute no infringement; and, conversely, if this feature of relative position is not a material part of the invention, the patented device is reduced to a chamber of fulminate in the center of the base, with an anvil over it, having two or more openings; and this device was anticipated by the ordnance officers in cartridges made in 1864.
    
      The Reporters’ statement of tbe case:
    The following are the facts as found by the court:
    I. April 13,1805, the claimant filed in the caveat archives of the Patent Office of the United States a specification and drawings alleged by him to describe “ a gun to load and fire with great rapidity and effect.” This caveat was prepared the 8th day of February, 1842. The gun described in the caveat was a breech-loading revolving gun, requiring the use of cartridges. The claim was for the invention of the gun, and also “ the cartridge, as set forth, and firing it by means of a drill.” In this cartridge a paper cylinder was employed, in which the powder was inclosed, with the ball above or before it; in the back or lower part of the cylinder was a chamber coated with varnish, filled with fulminate, and having an end covering to it; the cartridge was to be fired by a drill. No method of communication from the fulminate to the powder was provided, nor any mention made of an anvil.
    II. The same day, April 13, 1865, claimant also filed in the United States Patent Office an application for letters patent upon what he described as a new and useful improvement in primed cartridges. May 15, 1865, the letters patent were refused, on the ground that the claim had been anticipated. The application was then amended, and again refused August 10, 1865, for lack of novelty. The claimant appealed from this decision to the board of appeal or examiners-in-chief, and on November 17, 1865, two examiners-in-chief affirmed the decision refusing the application. The important parts of the invention, as described in the specifications and the drawings annexed to them, filed April 13, 1865, with application, are as follows; the invention is called a “ new and useful improvement in primed cartridges: ”
    “ The nature of the invention consists in taking the ordinary copper-flanged iirimed cartridge case, which has a projecting flange on the rear and immediately outside of a level rear base or plate and outside of a cylindrical body, such flange connecting the cylindrical body with such rear base plate, and adapted to arms having a flange recess at the rear of the charging chamber. And I dispense with the fulminate in such rim, and I compress and make thinner the center of the rear base plate to about half the surrounding thickness and for a diameter or sizeof about a quarter of an inch, and inside of the shell or plate, forming thereby a circular recess or chamber in the base or plate inside to hold fulminate and to present a thin striking face to a striker located in the rear of the shell or cartridge, and I insert in the side of this shell, with its rim or edge extending into the rim of the shell, and firmly secured by such rim, a copper plate or anvil, perforated with oneor more small vent-holes in theanvil part opposite such thin or reduced center, to inclose the fulminate, receive the blow of the striker as an anvil as it strikes onto the thiu or reduced central part of the rear plate or base of the shell, and drives it forward where struck with the fulminate againstthe curved base of the center concave of the plate, which surrounds a central hole or vent in it to form a base of resistance to explode it against, and to admit the fire directly forward through the center of the gunpowder of the cartridge. This is the best form of applying the invention, though two or more small holes to vent may be used, with the metal of the plate solid immediately opposite the center.”
    The advantages of this cartridge were described by the claimant in the said specifications as follows:
    “ The flange being filled up solid prevents it from stripping in extracting the shell. The fulminate bt-ing in the center (and not within the outer flange) makes it safer from accidental explosion. The concave plate secured by the outer rim, and is held by the groove in the gun, makes a firm base of resistance to the action of the striker to explode the fulminate. The central issue of the fire forward through the gunpowder ignites it uniformly and most quickly.”
    The- applicant’s claim was thus made:
    “ What I claim as my invention is: Dispensing with the fulminate in the hollow rim of the ordinary cartridge case, having its rim projecting around the rear flat base and beyond the cylindrical body of the shell, and then reducing the thickness of this rear plate or base in the center inside, and inclosing the fulminate in and opposite this thinned center or recess by means of a perforated plate or anvil, held securely by its rim entering the hollow flange outside of the cylinder of the shell, to convert it into a center primed cartridge adapted to arms with a flange recess around the rear end of the charging chamber, such as those in which the shell was before used or others similar, or adapting the striker to it, substantially as described.”
    In his appeal from the decision of the primary examiner the claimant alleged the following essential features which must necessarily all exist to develop the function of a proper explosion of the cartridge, namely:
    
      “ 1. A thinned central rear sufficiently and only large enough to present an annular striking face around the center hole of the anvil-plate and opposite the central face of the anvil-plate.
    “ 2. An anvil-plate held by the surrounding projecting flange, and flat with the rear plate up to the edge of the thinned part of such plate, and with a curved concave opposite the thinned part, and only opposite the thinned part surrounding a central vent-hole extending forward through the plate.
    “ The construction of the anvil-plate is peculiar and the construction of the thinned rear base is peculiar: both may have been separately known before, but they were never proportioned to each other and brought together to act in unison for the common purpose of producing a quick and certain ignition of cartridge and making it safe to carry; by combining an easy yielding rear face with a solid resisting anvil face properly presented and supported, and a small amount of fulminate with large ventage, so as not to blow out or displace the anvil-plate, and keep the base solid for easy extraction of the shell.”
    III. The claimant, upon January 23,1872, filed in the United States Patent OfQce an application for letters patent upon improved breech-loading metallic cartridges. After refusal and amendment, letters patent were issued to him for the invention claimed by him in the following form:
    “ I claim as my invention the within-described improved fixed ammunition for breech loading infantry arms, consisting of an enlarged metallic case containing a charge of powder, an elongated, solid, and flat-based paper carrier fitting closely within said case, and carrying a smooth, solid, elongated, rearwardly tapering, flat-based, subcaliber, leaden bullet, held and partially inclosed by the front end of the said carrier.”
    On this application a patent was issued for a subcaliber bullet, with bullet paper carrier.
    The claimant filed, April 25, 1872, in the United States Patent Office, an application for a patent for “ an improvement in the construction of primed metallic ammunition for breech-loading fire-arms.” This application was amended and refused. The specification as amended was as follows:
    “ I,-, have invented an improvement in the construction of primed metallic am munition for breech-loading fire-arms, of which the following is a snecification:
    “ My invention relates to the construction of the base or rear end of the cartridge or metallic case, immediately adjacent to the rear of the powder chamber, to prevent the fulminate and powder, either or both, from decomposition by galvanic action or sweating, and to prevent the paper disk from burning, and prevent the metallic case at the flange from bursting; and to construct the cartridges with uniform similarity, and cheaper than heretofore, by means of a circular, centrally perforated paper disk carrying the fulminate in its central perforation and secured between a circular metal plate similar in galvanic nature to the metal of the ease, with an anvil or bridge-piece in this circular metal plate over the fulminate, and one or two holes punched through it at one or both sides of the anvil face to admit the fire to the powder, and secured firm down on the paper disk by the pinched-in sides of the case over the middle plate to insure resistance to the fulminate.”
    
      Referring to drawings annexed to it, the specification proceeds to describe a metal case to contain the powder charge and the bullet or shot, or only the powder if desired. A circular paper disk about one-tenth of an inch thick fits tightly inside of the metal case against the metal base of the case, this paper disk to be perforated entirely through at its center, forming a chamber of uniform diameter, open at both sides alike, and of about one-eighth of an inch in diameter. Into this chamber is put the fulminate when damp, coated on both sides with a solution of shellac and then placed into the case. Over this is placed a circular plate of the same kind of metal as the case, or similar in galvanic nature, so as to prevent galvanic action or decomposition. Two holes through which the fire from the fulminate reaches the powder are punched through this plate, leaving an anvil-piece over the fulminate. The specification then proceeds:
    “ Owing to this construction of a paper disk between a metal plate and the base of the case, a much thinner body of paper and a shorter metal case suffices to secure, preserve, and explode the fulminate than is used when paper alone is employed in the metal base or case. There is also greater certainty of exploding the fulminate, and the paper is pressed more mechanically and tightly at the edges against the case, to exclude the gas and fire, and prevent the paper from burning and the shell case from bursting, while galvanic action and decomposition are also prevented, and sweating does not destroy the fulminate. The paper disk being perforated clear through, enables either side to be put next to the metal base and makes equally sure fire. Paper is the only material that will answer for this disk.
    
      “ I am aware that a body of paper with a concave recess in the rear containing fulminate, and sufficiently thick to enable the paper in a measure to resist the blow to explode the fulminate, has been suggested before this invention of mine, but it requires a longer case than mine and is not so certain to explode; and a paper disk alone so thin as mine, and taking up so little space, will not give sufficient resistance, nor will any paper disk when perforated through like mine, so as to apply either side next to the base, explode the fulminate without the metal plate or anvil. I am also aware that an anvilqdate over a combustible-primed wad has also been suggested, but this does not exclude the gas from beneath the plate at the edges or weak parts of the case, which my invention does accomplish.
    “ But what I claim is—
    “ The construction of an improved breech-loading metallic-primed cartridge case, consisting of circular metallic anvil perforated and secured by a bite of the case of the same metal, immediately in front of a circular paper disk centrally perforated through and carrying the fulminate in the central perforation, and tightly inclosed against the sides of the ease at the flange, and between the metallic base and anvil-plate, exclusively of the same metal, to avoid sweating, bursting, galvanic action, and to keep and present the fulminate and charge in the most serviceable manner, as described.”
    IY. Another application, filed December 28,1878, resulted in the issue to the claimant of letters patent No. 212313, for an alleged new and useful improvement in cartridges. These letters were issued February 18,1879. The right and title to them remains in the claimant. The amended specification upon which the letters were issued contains the following description of the invention:
    
      " United States Patent Office. William W. Hubbell, of Washington, District of Columbia. Improvement in cartridges. Specification forming part of letters patent No. 212313, dated February 18, 1879. Application filed December 28, 1878.
    “ To all whom, it may concern:
    
    “Be it known that I, William Wheeler Hubbell, of Washington and District of Columbia, have invented an improved metallic cartridge, and I do hereby declare that the following is a full, clear, and exact description thereof:
    “ My invention relates to the peculiar construction of a circular metallic perforated plate, with the circular fulminate carrier and soli<J fire-tight metallic case and head in one piece, as will be hereinafter more fully set forth' and described.”
    Iieferriug to drawings annexed to it, the specifications proceed to describe the cartridge substantially as follows :
    A cylindrical metallic cartridge case or shell, with solid rear end in one piece therewith, both fire-tight, open only at the front end, to be primed and loaded at this front opening. Above and upon this solid rear end is placed a circular disk of paper, or any suitable substance, perforated through the center for the reception of the fulminate in this perforation or chamber. Above and upon this disk is placed a circular metallic plate, closely fitting inside the case or shell; this plate is held in place by contracting or pinching the case or shell, which forces the plate down upon the disk and makes a tight joint around the edge of the plate. The plate has two perforations, one on each side of a center line drawn through its axis, sufficient space being left between the perforations to form the bar, which is ■of a breadth nearly equal to the perforation in the paper disk immediately over which it rests; above this metal plate is the powder chamber and above that the bullet. The specification further sets forth that the paper disk may be dispensed with by recessing or forming the fulminate chamber in the metal of the circular plate, with a central anvil-bar over the recess and a perforation on each side of the bar. The specification thus •concludes:
    “ The central anvil affords a firm resistance to a central striker acting on the center of the base, and compressing the fulminate to ignite it with certainty. The two side vents diffuse the fire into the base of the charge of powder, and its instant explosion presses back the circular anvil-plate, and prevents it from being blown out in the barrel, the charge being consumed from the base forward, without reaction of the fire or waste of the powder.
    “ The distinguishing feature of my invention is the organized construction to carry into complete effect the expressed principles of operation of the fulminate of mercury or detouating powder and the powder charge. In this organization the fulminate, although the superior explosive force, is contracted into a diminished or small central chamber and fills it. The flange and head of the metallic case are solid, all in one piece. This chamber, at its sides or outer extreme edges, communicates directly and exclusively with the powder charge, so that the explosive force of the fulminate is not allowed to expand under a larger area of the anvil-plate and blow it out, but is compelled to diffuse its explosive force, not in a central stream but in a diffused body, into the base of the powder charge. To effect this the central anvil piece has no central aperture, is as wide as the fulminate-filled chamber, and the perforations are at the •extreme outer sides of this fulminate for two purposes. One is to diffuse the fire from this center most thoroughly. The other is to have an uuperforated anvil over and against the fulminate, as it rests solid in its chamber, to receive the central blow of a striker and obtain complete resistance by the anvil-bar, and yet have free escapement for the explosive force at once from beneath the anvil-plate, without any chamber or space for it to expand into under the plate. This insures a certain ignition, security of the anvil-plate to keep its position, and a complete combustion of the powder charge from the base forward as it impels the bullet out of the gun.
    “ Having thus described my invention, what I claim as new, and desire to secure by letters patent, is—
    “ In the bottom of a solid metallic flange cartridge case or shell the combination of a circular base inclosing a central chamber of fulminate and an anvil over the fulminate, provided with two or more openings, whose inner edges nearly coincide with the edges of the central chamber of fulminate in the base of the cartridge, substantially as described.”
    Y. The officers of the United States Army began in 1864 experiments for. the manufacture of center-fire cartridges, which led up to the “ cup-anvil” cartridge, adopted in 1868, and the reloading cartridge. Prior to 1864, metallic so-called “rim-fire” cartridges were used; in these cartridges the fulminate was contained in a hollow flange or rim around the base of the cartridge, and if was exploded by a blow from the hammer of the gun upon the exterior edge of this flange or rim. Among other patterns there were made and fired by said officers the following different kinds of center-fire cartridges :
    In December, 1864, some ten or fifteen cartridges thus described : Interior, center-priming cartridges ; priming (or fulminate) being held in place against the base or rear of the shell by a circular metal disk compressed by the walls of the shell; in the disk were two holes, at the extremities of a diameter of the fulminate, through which fire from the fulminate was communicated to the black-powder chamber of the shell; the entire area of the holes opened into the fulminate chamber, and the portion of the metal disk between the holes served as an anvil to resist the blow of the hammer or firing-pin; between the hammer and the anvil was placed the fulminate. The fulminate in this cartridge was carried in an exterior bulb or chamber in the rear of the center of the base of the cartridge; this method of loading the fulminate was abandoned.
    About the spring of 1865 the said officers manufactured and fired cartridges of the following description:
    A center-primed cartridge, the priming of fulminate in a circular depression in the center of the base of the shell, held in place by a circular piece of metal pressed down over it; fire to the powder charge communicated through two holes at the extremities of a diameter of the depression or pocket in the base of the shell, the entire area of these holes opening into the pocket, and the portion of the metal between the holes serving as an anvil to resist the blow of the firing-pin or hammer.
    The government continued the use of a center fulminate chamber, having above it a disk with central anvil and two vents to the black-powder chamber, until the development, in 1868, of the “ cup-anvil” cartridge, in which a cup was substituted for a single disk or for the combination of two disks. The cup is an improvement upon the disk or disks, in that a disk from its form is apt to be turned or misplaced in insertion, or loosened by blows from the striker, and must be fastened by crimping" the walls of the shell near the flange, where the walls are thickest ; while a cup has from its form greater rigidity as an anviL its walls prevent it from turning while being inserted in the shell, and admit of its being crimped in place where the walls are thinner. Being in effect a hollow cylinder, it occupies less powder space in the shell for equal depth of cup and thickness of disk.
    VI. The “cup-anvil” cartridge is one of those alleged to be covered by claimant’s patent. It is a center-primed cartridge metallic case or shell, with a rim around the rear or closed end of the cartridge. The priming or fulminate is contained in a circular pocket in the exterior of the base of a metal cup, that is, into a cartridge shell, and resting upon its base is put a metallic cup, with its mouth toward the black-powder chamber; the bottom of this cup projects upwards from the circumference towards the center, and the cup is forced down upon the solid base of the cartridge case or shell, and is held there firmly by crimping the walls of the case or shell over the edge of the cup at its open end. A circular pocket appears, therefore, in the exterior of the base of this cup, and in this pocket,, and between the cup and the closed end of the cartridge case or shell, is placed the priming or fulminate. Fire is communicated from the fulminate to the black powder through two holes in the bottom of the cup, at the extremities of a diameter of the said depression or pocket. The whole area of the apertures is over the fulminate chamber, free to receive the flame, and their inner edges do-not nearly coincide with the outer edge of the fulminate chamber. The portion of the top of the pocket or bottom of the cup between the two holes serves as the anvil to resist the blow of the hammer or firing-pin. This cartridge was adopted by the government in 1868, and has since been continuously manufactured and used by it.
    The “ reloading” cartridge is another of those alleged to be covered by claimant’s patent. This cartridge is a hollow metallic shell, rimmed around the base with a pocket in the exterior of the center of the base; through the center of the top of this pocket, supposing the cartridge to be stood upon its base or closed end, is pierced a single aperture or hole to carry the fulminate flame to the black-powder chamber. This cartridge contains only the black powder and the bullet. Any one of several different kinds of primers may be used in it; the one used by the United States, and alleged to infringe claimant’s rights, is a circular metallic cup, into which is put the fulminate ; above this is fastened a disk or cover having a groove on its upper side, being the diameter of the circle; at each end of this groove a small piece or notch is cut out of it; through the holes thus formed the flame from the. fulminate escapes; if this primer is placed in the chamber of the reloading cartridge, with the closed end of the cup( outwards and the grooved end against the top of the chamber, the flame from the fulminate when exploded would pass through these holes or notches, thence along the groove to the central aperture in the cartridge caseorshell, thence to the black-powder chamber through this single aperture. The entire area of each of the holes or notches in thedisk is over the fulminate chamber, and the portion of the disk between the holes is the anvil.
    VII. The claimant, in July, 1872, notified the Chief of Ordnance of the United States of his letters patent issued in April of that year, and asked that the cartridge therein described be tested. March 22, 1879, claimant notified the Secretary of War of his patent granted February 18, 1879, and asked allowance for royalty on future manufactures of the cartridge thus protected. From March 1,1879, to March 31,1883, theUnited States manufactured 14,714,082 cup-anvil cartridges, and after February 18,1879, used 2,700,000 theretofore made. From February, 1879, to March 31, 1883, the United States manufactured 3,866,352 reloading cartridges, and 9,373,700 of the primers described in finding vi were manufactured from 1883.
    VIII. The cost of manufacturing the cup-anvil cartridge is $26 per thousand, the cost of manufacturing the reloading cartridge is $30 per thousand; a fair royalty would be 5 per cent, of the cost.
    The claimant in “propria persona.
    
    
      
      Mr. John S. Blair (with whom was the Assistant Attorney-General) for the defendants.
    
      
       14 C. Cls. R., 396. See also Hollister v. Benedict Manufacturing Company (113 U. S. R., 59), where it is said:
      “But doubts were expressed whether a suit could be sustained, such as the present, against public officers, or whether a suit upon an implied promise of indemnity might not he prosecuted against the United States by name ' in the Court of Claims. If the right of the patentee was aekno w ledged, and, without his consent, an officer of the government, acting under legislative authority, made use of the invention in the discharge of his official duties, it would seem to he a clear ease of the exercise of the right of eminent domain, upon which the law wonld imply a promise of compensation, an action on which would lie within the jurisdiction of the Court of Claims, such as was entertained and sanctioned in the case of The United States v. The Great Falls Manufacturing Co. (112 U. S. R., 645). And it may he that, evenifthe exclusive right of the patentee were contested, such an action might he brought in that court, involving all questions relating to the validity of the patent; but, as we have concluded to dispose of the present appeal upon other grounds, it becomes unnecessary to decide the question arising upon this defense.”
    
   Davis, J.,

delivered the opinion of tlie court:

The claimant seeks in this action, upon an implied contract (McKeever v. The United States, 14 C. Cls. R., 196; 18 id., 757; Burns v. The United States, 12 Wall., 246), to recover compensation for the manufacture and use by the United States Army of cartridges alleged to be an infringement of his patent issued in 1879.

As it is admitted that the government cartridges were manufactured and used prior to the claimant’s application for the patent in question, it would naturally be inferred either that the invention was not novel or that the government cartridge does not infringe the rights secured by the letters patent. The claimant seeks to avoid this inference by showing that, although his rights first became enforceable upon the issue of the patent, he in fact is the first inventor, and he puts in evidence a number of applications made by him prior to 1879, as tending to establish this.

In an action for infringement, where the question of priority is raised, the claimant may go into such history of his efforts and achievements in the art as tend to show that he was in fact the first in ventor of somethin g after wards patented by him; but as the letters patent form the basis of the action, an exam.ination of the claimant’s moral claims to priority is useless unless he has protected his rights in the manner prescribed by law.

The claimant conducted his own cause before this court, and both in his brief and in argument made broad claims as to his inventions in metallic cartridges, showing that for over forty years he labored diligently for the improvement of fire-arms and ammunition, and that he early foresaw the necessity of substituting for the muzzle-loader, with loose ammunition, a safer and more efficient arm for warfare, to be breech-loading with cartridges; this, however, is beside the issue, as his legal rights are shown, defined, and limited by his patents only.

The distinctive features of the patent of 1879 are set forth by the claimant as follows: “ The fulminate [or priming], although the superior explosive force, is contracted into a diminished or small central chamber and fills it. The flange and head of the metallic case are solid, all in one piece. This chamber . at its sides or outer extreme edges communicates directly and exclusively with the powder charge,” so that the fulminate will diffuse its explosive force j “to effect this the central anvil-piece has no central aperture, is as wide as the fulminate-filled chamber, and the perforations are at the extreme outer edges of this fulminate,” for the purpose of diffusing the fire and retaining the central anvil. Claimed as new is “ the combination of a circular base inclosing a central chamber of fulminate and an anvil over the fulminate, provided with two or more openings, whose inner edges nearly coincide with the edges of the central chamber of fulminate.”

Stated in another way, the distinguishing feature of the combination is a disk within a metallic cartridge, having an aperture in the center to receive the priming; over that a metallic disk having two vents drilled through it, by which the flame from the priming may reach the black powder placed, immediately over this second disk, these vents to be so arranged that their inner edges shall nearly coincide with the wall of the fulminate chamber, that is, so that a portion only of their area shall open into that chamber and be free for the passage of the flame. This arrangement of the vents seems to obstruct the free escape of the flame and gas generated by the priming. The claimant, however, evidently deemed this position of the apertures material, possibly because it gives a larger diameter to the anvil.

The patent of 1879 is, therefore, for a combination made up of the circular base containing the fulminate, the anvil over it, with the apertures or vents placed as shown, and the position of these vents is material to the combination as described and claimed.

Turning now to the claimant’s prior applications, through which he seeks to prove an early invention of the combination patented in 1879, we can lay aside, as on their face irrelevant, the applications and patent of 1872, as well as the caveat of 1842, and need to consider only the application of 1865. The invention described in this application consisted of the combination of a perforated anvil protruding upward into the shell,, the edges held by insertion into the hollow flange or rim surrounding the base of the cartridge, with the closed end of the Cartridge made thinner opposite the priming, which was contained in the chamber formed by the protrusion of the anvil upwards into the shell and the area cut out of the base. In his specification the inventor stated that he preferred a central vent through the anvil, but suggested the possibility of using two or more vents, without, however, defining their position. This suggestion he abandoned upon appeal in the Patent Office, and relied upon the single central vent, laying stress upon the. combination of the thinned base, the construction of the anvil-plate, and the central vent, all acting together to produce a safe and quick explosion with a small amount of priming and large, ventage. The claim of 1865 does not aid the patent of 1879, as it lacks the latter’s distinguishing characteristics. In 1865 the claimant laid stress upon the combination of the thinned "base with the anvil having a central vent, saying, “ The central issue of the fire through the gunpowder ignites it uniformly and most quickly,” while in 1878 he provided two apertures, as widely separated as possible, “ so [to use the claimant’s words] that the explosive force of the fulminate is not allowed to expand, * * * but is compelled to diffuse its explosive force not in a central stream, but in a diffused body. To effect this the central anvil-piece has no central aperture, is as wide as the fulminate-filled chamber, and the perforations are at the extreme outer sides of this fulminate * * * to -diffuse the fire * * ■ * and to have an unperforated anvil.”

In 1865, therefore, the claimant aimed at quick ignition -through concentrated fire, while in 1878 he sought the same result through diffusion of the flame. There are other differences between the application of 1865 and that of 1878, on which the patent in question was issued, which it is not necessary now to consider more fully, but which support our conclusion that the specification of 1865 does not cover the invention patented in 1874.

The government cartridges alleged to infringe the claimant’s rights are of two kinds, called the “ reloading cartridge ” and the “cup-anvil cartridge.” The “reloading cartridge” is a ■solid flange metallic cartridge with a chamber indented from without into the center of the closed end or base to receive the primer; at the top of this chamber is a single aperture to convey the flame from the fulminate to the black-powder chamber immediately above. In this cartridge there are not two apertures, there is not a central or any anvil, there is no central fulminate chamber; in fact, it is merely a metallic shell, intended to hold powder and ball only, with a chamber in its base for the reception of a primer containing anvil and fulminate. The primer is entirely distinct and separate from the cartridge, nor is it necessary to use ány particular kind of primer; the one complained of in this case consists of a circular metallic cap, into which is put the fulminate, and above it is fastened a metallic disk acting as an anvil; at either extremity of a diameter of this anvil is cut a notch or hole, which shows its entire area into the priming chamber. When this primer is forced into the chamber in the base of the “ reloading cartridge,” the two vents come against the top of the chamber and are closed by it; therefore, a groove is made along the diameter of the top of the disk, extending from one of the notches or vents to the other, to allow the passage of the flame. When this primer is in its place in the cartridge, and the fulminate is exploded, the flame rushes through the notches or vents, and meeting the solid base of the shell, follows the groove to the siugleeentral aperture, through which itr eaches the black powder in a single stream. Neither the combination of this shell and primer nor the combination distinguishing either the shell or primer singly is covered by the claimant’s patent.

The “ cup-anvil ” cartridge is at first glance much more like the claimant’s cartridge than the “ reloader.” It is a metallic solid flange shell, into which is placed a metallic cup, resting on the closed end or base of the cartridge. The mouth of this cup faces upwards towards the black-powder chamber or open end of the shell, and it is firmly held in place by a crimp in the circumference of the shell just above its upper edge. The bottom of this cup projects upwards from the circumference towards the center, and in the chamber thus formed between the bottom of the cup and the closed end or base of the cartridge is placed the fulminate. At either end of a diameter of the cup is drilled a hole, whose entire area opens in upon the priming and is free to receive the flame; the inner edges of these vents do not, therefore, “ nearly coincide” with the wall of the chamber; on the contrary, it is their outer edges which are nearest to it; and thus an important element of the claimant’s combination is absent. (Vance v. Campbell, 1 Black, 427; Case v. Brown, 2 Wallace, 325 and 327; Schumacher v. Cornell, 96 U. S. R., 554.)

Prior to 1864 the “ rim-fire” metallic cartridge was used in the Army, but in that year experiments were begun for the perfection of the center-fire cartridge, and among other models the government officers manufactured and fired a cartridge of which the following were the distinctive features : The fulminate was inclosed in a central chamber protruding outward from the base of the shell; over this was a metal disk, held in place by the walls of the shell; at either extremity of a diameter of this disk was a hole, exposing its entire area for the free passage to the black powder of the flame from the fulminate. The exterior bulb or chamber was abandoned, but the other distinguishing features were in effect retained and improved, until they developed, in 1868, the cup-anvil service cartridge.

This cartridge of 1864 shows a central fulminate chamber with a disk above it, of which the center is the anvil, and through this disk are drilled two vents. Another cartridge made by the government about the spring of 1865 shows the same combination, except that the priming chamber is formed by a circular depression in the base of the cartridge, instead of an exterior protrusion or bulb. If, then, the use of two disks is not material to the claimant’s combination, and if the position of the vents is likewise not material, there remains of his patent of 1879 only a chamber of fulminate in the center of the base of the cartridge, with an anvil over it, having two or more openings. Cartridges covered by this description were manufactured by the government in 1864, and have been ever since. But there is another and material distinction between claimant’s cartridge, the government cartridges of 1864 and 1865, and the service “ cup-anvil” cartridge found in the substitution of a cup for á disk or for two disks.

Theoretically a disk has area without thickness; practically it has very little thickness, and is apt to be misplaced or turned in the shell or to be loosened by the blow from the striker; on the other hand, a cup, from its form, has greater rigidity, its wall prevents it from turning when inserted, and it can be better held, because the crimp is made at a thinner part of the walls of the shell, while the disk must be secured by a crimp close to the base, where the walls are thickest. The cup also, being practically the equivalent of a hollow cylinder, occupies less powder space for equal depths of cup and thickness of disk.

Upon our construction of the patent in issue the government cartridges do not infringe the claimant’s; but if we are in error as to this, still the claimant cannot recover, as the essential characteristics of his invention now found in the government cartridge were developed by officers of the Army in 1864. That is, if the relative position of the vents and the wall of the fulminate chamber is a material part of the claimant’s patent, the government has not infringed, this feature not appearing in its cartridges; but if this position is not material, still the claimant cannot recover, as the other characteristics of his invention found in the cartridge now used by the defendants were introduced by them prior to the issue of the patent or the filing of the application for it, and even prior to the application of 1865.

In this view of the case it is unnecessary to consider other points urged by the defense.

It is thejudgment of the court that the petition be dismissed.  