APPEAL from the Circuit Court for the Southern District of New York, in which court the Union Paper-collar Company filed a bill against Van Dusen, to enjoin him from making shirt-collars out of a certain sort of paper which he was using and to which they claimed an exclusive right, and also from turning over the collars so made, by a particular contrivance which he was also using, and of which, as of the fabric of the collar, the company claimed a monopoly.
The claim by the company of exclusive right as to the fabric of the collars–that is to say, the sort of paper out of which they were made–was founded on a grant to them of a patent, reissued to one Andrew Evans; the claim of similar right as to the device by which the collar was turned over, was founded on the grant to them of a patent reissued to a certain Solomon Gray.
Van Dusen, admitting the use both of the special sort of paper and of the device for turning the collars over, set up:
I. AS TO THE EVANS PATENT, THE ONE, NAMELY, FOR THE FABRIC––
1. That the reissue to Evans was void, as not being for the same invention as the original patent.
2. That, whether or not, both original and reissue were void for want of novelty.
II. AS TO THE GRAY PATENT, THE ONE, NAMELY, FOR THE DEVICE––
1. That it too was void for want of novelty.
The reader will, of course, remember that the Patent Act authorizes the issue of a patent only when a person has invented or discovered some 'new manufacture, or some new and useful improvement thereof, not known or used by others;' and also that while authorizing in certain cases the reissue with an amended specification of an original patent, where the specification has been defective, the act contemplates that the reissued patent shall secure no other than 'the same invention' meant to have been secured by the original.*fn1
I. As to the Evans patent and reissue, the fabric for making shirt-collars. Paper being made out of linen, among other things, and some sorts of paper being more stiff or more tough than others, it had been observed long prior to the grant of any patent on the subject, that shirt-collars could be made out of the stiffer or more tough sort of papers, and that the collars, if used but for a short time and not closely looked at, might pass for linen collars. A man named Olmstead, the 'property-man' of a band of negro minstrels, who used to costume themselves in fantastic style, had used them so far back as 1851 to dress his minstrels when performing at a place called 'White's Varieties,' in the Bowery, New York. He said:
'In the year mentioned, and afterwards, we made wooden blocks or patterns from linen collars, and laid the blocks on paper. We would then mark the paper with a lead-pencil, and afterwards cut out the collar from the paper by the marks, with a pair of scissors. For stiff or 'stand-up' collars of large size and fantastic shape–such as we used when we wanted collars with long points and to come up nearly to the men's eyes–we used Bristol boards, such as artists use. The outside of that board is glossy. The other side, which is not glossy, the performer put next his face. The gloss prevented the burnt cork, with which the so-called negro minstrels (who are all white men) are blackened, from sticking to the paper. Turned-down collars we made out of paper. We did this by simply pinning the paper to a cravat and then laying it on a board and turning it over the cravat. Sometimes these collars were cut in two at the back; that is to say were made out of two pieces of paper. When we wanted fancy collars we would prick the Bristol board or paper. The holes looked like stitches. Sometimes we would paint them pink or blue, or in stripes, so as to be like colored linen or linen, with blue or pink stripes. The fancy collars were worn, of course, only on the stage. But the white ones, our men–who as a class are lazy fellows–would sometimes wear in the street. On the stage we could, with care, wear the collars several times. In the street, only once or twice. We got the Bristol boards and paper out of which we made these collars at Rayner's, a stationer, in the Bowery. I sold these collars for eight or nine years, and from two to five cents. I did not go regularly into the business because I had no capital.'
Subsequently a person named Hunt made a business of selling paper-collars, and got a patent for the particular sort which he made. This sort was made out of paper applied to some woven fabric, the paper, which was worn on the outside, giving to the loose and limber fabric of the woven fabric rigidity, and the general appearance of a starched linen collar, while the woven fabric, worn next the skin, sustained and gave strength to the paper. Nevertheless, these collars were expensive and had a harsh and inelegant look. In addition, they wanted pliability, and when turned over were apt to crack and form a roughened edge.
However, as already said, paper had long been made having different degrees of toughness. Some paper–'short-fibre paper,' as it is called, the sort commonly used for the inferior class of newspapers–paper made from wood, or from poor cotton rags ('soft stock,' as it is called) or from old paper itself, or by imperfect processes–is brittle, and tears easily. But another sort, 'long-fibre paper,' that made from linen rags, or linen canvas, manila rope, Kentucky bagging, &c. ('hard stock,' as it is called), and from which, by some variation in the machinery producing it, and with more time, are produced the papers known as bank-note paper, cartridge-paper, silk-paper, and tissue-paper, among the thin papers, and parchment-paper, drawing-paper, and Bristol boards, among the thick, is highly tenacious and some of it quite pliable.
A reference to the general features of the process of papermaking by mechanical means will assist comprehension of sub equent parts of the case.
After the 'stock'–best rags or what else–is sorted and cut, it is generally cleaned by boiling, and finally put, with the requisite quantity of water, into the 'beating engine,' where it is beaten or ground into pulp. The beating engine is simply a vat divided into two compartments by a longitudinal partition, which, however, leaves an opening at either end. In one compartment a cylinder revolves, called the 'roll,' its longitudinal axis being at right angles to the length of the vat. In this cylinder, and parallel with its axis, are inserted a number of blades or knives which project from its circumference. Directly beneath the roll, upon the bottom of the vat, is a horizontal plate, called the bed-plate, which consists of several bars or knives, similar and parallel to those of the roll, bolted together. The roll is so arranged that it can be raised or lowered, and also the speed of its revolutions regulated at pleasure. The vat being filled with rags and water, in due proportion, the mass is carried beneath the roll, and between that and the bed-plate, and passing round through the other compartment of the vat, again passes between the bed-plate and roll, and so continues to revolve until the whole is beaten into pulp of the requisite fineness and character for the paper for which it is intended. When the beating first begins, the roll is left at some distance from the bed-plate, and is gradually lowered as the rags become more disintegrated and ground up. The management of the beating engine is left to the skill and judgment of the foreman in charge. The knives may be sharp or dull, the roll may be closely pressed upon the bed-plate or slightly elevated, the bars and knives may have the angles which they make with each other altered, so that they either cut off sharply, like the blades of scissors, or tear the rags more slowly as they pass between them. The duration of the beating also varies according to the nature of the pulp, the length of fibre required, the condition of the knives, &c.; and the speed of the revolutions given to the roll is varied in like manner.
After the pulp has been beaten until the foreman judges that it is of the right length of fibre and quality for the paper desired, it is drawn off from the engine and first passes through the 'screens,' a kind of sieve, which removes lumps and impurities. The pulp is then poured out upon the wire-cloth, the water draining through the meshes of the wires, an operation which is aided by 'suction-boxes' that exhaust the air and suck the water out of the pulp. The thickness of the paper is mainly regulated by the amount of pulp poured out upon the wire, it being kept from flowing over the edge by raised guards. The pulp is carried by the motion of the wire beneath a succession of rollers, the first light and the last heavier, until a heavy roller covered with felt carries it off the wire by its adhering to the felt, and it then passes through heated rollers until it comes out pressed into paper. It is finished by passing under calender rolls, and given more or less gloss as may be required. It is usually sized and colored in the vat before the pulp is beaten. A white color is obtained by bleaching the rags, selecting white rags if possible for the original stock, taking pains to use clear water, and adding blue coloring matter if a yellowish-white is not desired.
There seemed to be no essential difference in the principles on which the two sorts of paper–short fibre and hard fibre–were made. The 'stocks,' as already said, were different. The machines using them, however, had no mechanical principles different for the two sorts of paper. For long-fibre paper the knives used in the process of pulping must be dull, and the process of beating must be long–forty-four hours being commonly given. For the short-fibre paper, the knives may be dull and the process of beating may be short–four hours suffices. To produce a thick paper, the device of doubling the sheet, where the machine is a cylinder mac ine, has long been resorted to. And, of course, where the paper is thick and of long fibre, it yields the water in it less readily than when it is thin and of short fibre, and more power must be brought on the pulp in order to expel the water. In the Fourdrinier machine–where the principle of suction is used stronger suction, it need hardly be said, is required to extract the water in the case of the thick paper than of the other.
The matter of coloring is, of course, a matter of taste.
In all parts of the subject, however, there is great room for skill; the thicker, more tenacious, and more sightly paper being produced in different degrees of excellence according as the proper 'stock' is used, as the paper-making machines are good, and as they are scientifically used. And as the demand for the thicker and more tenacious and pliable papers is comparatively limited, and the manufacture of each of its branches, to some degree a special business, there are much fewer machines for making it, and much fewer makers of it than there are machines for making ordinary paper and makers of it.
Without any effort, therefore, to obtain or to produce a paper other than that already known and in use, Evans, who was not a paper-maker at all, on the 15th of May, 1863, got an original patent for an 'Improvement in Shirt-collars.' His specification said:
'The nature of my invention consists––
'First. In making shirt-collars of a fabric known to the trade as 'parchment-paper,' or paper prepared with animal sizing, which may be manufactured cheaper than a fabric composed of paper and cloth, is sufficiently tough and strong to form tenacious button-holes, is susceptible of a smoother surface and polish than cloth-paper, and can be turned over without cracking and forming a roughened edge, &c.
'Second. In coating one side or both sides of paper shirt-collars with a thin varnish of 'bleached shellac,' which not only adds smoothness, strength, and stiffness to the fabric, but also being a repellent of water, prevents perspiration or other moisture from entering the collar. The shellac, moreover, renders the surface of the paper so hard and smooth that it wears much longer without being soiled by exposure to dust or damp. I make my collars of any of the patterns or shapes in general use, either 'stand-up,' or 'turn-over,' and provided with button-holes, by means of which they are attached to shirts in the usual manner.
'I first take the 'parchment-paper,' or paper prepared with animal sizing, and cover one side or both sides of it with thin varnish of 'bleached shellac,' and allow it to dry. The paper is then passed between polishing rollers, such as are in general use for polishing paper or cloth. And this operation finishes the fabric ready to be made into collars. The collars are cut out and the button-holes punched by dies with great rapidity.
'My invention constitutes, I think, a great improvement in the art of making shirt-collars, producing a cheaper and better article of its kind than any known or used before.
'Having thus described the nature and operation of my improvement, what I claim as new, and desire to secure by letters-patent, is––
'A shirt-collar made of parchment-paper and coated with varnish of bleached shellac, substantially as described and for the objects specified.'
These collars made of parchment-paper coated with varnish of bleached shellac, were however open to objections. They did not look at any time very much like starched linen, became discolored after a little time, and showed plainly that they were not linen. The moisture of the skin coming against the sizing caused them to emit an odor not pleasant. Moreover the 'Byron' or turned-down collar was now coming into vogue, and the parchment-paper with its coating of shellac answered even less well for it than it did for the stiff or stand-up collar.
Evans now put himself into communication with different paper-makers, to get a sort of paper better suited for his purposes than any of the different sorts previously made; something which while it was paper and could be produced cheaply should yet have such a thickness, tenacity, pliability united with strength, and have moreover that polish of surface, and that exact bluish tint which is found in the best starched linen–as distinguished from yellowness and from dead white–which would deceive even critical observers who had no opportunity of judging otherwise than by the eye. No such exact variety of paper had yet been made, nor, so far as appeared, had been attempted to be made. He went to numerous paper mills. He conferred with numerous paper-makers. He spent much money. He made many suggestions. The manufacturers studied the matter carefully; got the exact sort of 'hard stock' that they thought would produce the special sort of paper that he wanted–and to which, in advance of its coming forth, they gave the name of 'collar-paper'–made certain alterations in the machinery of their mills, and went to work; some producing their 'failures,' and some their approximations in close degree to what he wanted. Evans would sometimes come to the mills, 'and had a great deal to say.'
The following extract from one or two of his letters illustrates what sort of instruction he was constantly giving. To one manufacturer, in acknowledging the receipt of some paper, he says:
'The paper as regards color is all right. It is not, however, thick enough to make the stand-up collar. It will answer for the turn-over collar. I have now on hand stock enough that you have sent me to make 40,000 collars; but it is only suitable for the turn-over collar. I am very much in want of some thicker stock to make a stand-up collar. You don't seem to understand by my letters just what I want; and yet I try to explain explicitly for your information. What I wish you would do is for you to come to Boston and see my place of business, and let us have a good substantial talk over the matter. It will take only one day, and then I can explain to you just what I want. I want to show you what I have on hand, and show you by comparison what I want for an alteration. If you cannot come, or do not think it advisable to do so, please write me by return mail; and then I will send another order, and take the chance of its being right. I have not, however, had any stock right to cut one style of collar which is very much wanted the stand-up collar.'
In another letter he says:
'I want the paper of the style marked A.S., the hard finish, so that it may be strong. The color of the last two lots was just right. You need not make any variation as to color. It was perfect. Only give the paper to me thicker. Do not make the quantities of each lot too large, for fear they will not be just right. I was sorry not to see you in Boston. I could explain to you much better by seeing you than by writing. Just please see if you understand me this time. It is so difficult for me to explain by letter. I wish I could see you.'
'I am not positive that what you make will be just what I want when finished. Instead of seven hundred pounds of each size, I wish that you would not make more than two hundred pounds of each, that I may see if it is just right. This is still an experiment, and I have already lost considerable money in experimenting in my paper. Could I but see you one half-hour at my place, to explain to you, and show you by comparison, there would be no doubt in the mind of either of us what is wanted. Don't be discouraged. They like my collar as it is; but I am going to have it more perfect. I want some stock heavy enough, thick enough, strong enough, handsome enough, to make my stand-up collar; but I want it just right, before you make me up too large a quantity.'
At last Evans got just the paper that he wanted.
In this state of facts, he assigned his patent to the Union Paper Collar Company, and they applied for and got a reissue.
The reissue like the original patent was for an 'improvement in paper shirt-collars,' a d ran thus:
'Be it known that Andrew Evans, of Boston, &c., did invent a new and useful improvement in shirt-collars, and that the following is a full, clear, and exact description of the same.
'Previous to the invention of the said Evans, collars were made of paper applied to some woven fabric, the paper serving the purpose of giving to the loose and limber fabric the body, rigidity, or stiffness, and general appearance of a starched linen collar, while the backing of cloth or fabric gave it the necessary strength or resistance. The increasing cost of the backing and the difficulty attending the manufacture, render the collars intended to be worn, as a general thing but once, too expensive to answer the purpose they were designed for. The object of the said Evans was, therefore, to make a paper-collar in which the cloth-backing may be dispensed with, and which he did, as follows:
'Said Evans discovered, as the result of many experiments, that in order to produce a really good collar, the paper must possess the following qualities, viz., strength to withstand the usual wear and tear, particularly where button-holes are used, without excessive thickness, such as to destroy the resemblance to a starched linen collar, and tenacity or toughness, with pliability sufficient to allow the collar to be folded upon itself without cracking at the fold, and the pureness of color and necessary polish to make it resemble starched linen.
'He made his collars out of a paper which he produced, or caused to be produced, in which he combined these qualities; which paper was made of a long fibre, substantially, in this respect, like banknote-paper, but of about the same thickness as that of an ordinary collar, and of a pure shade or color, such as to resemble starched linen.
'By means of the length of fibre in the material, he was enabled to obtain, from the degree of thickness above specified, a sufficient degree of strength, tenacity, and pliability to make a collar practically useful for wear, without interfering with the resemblance in appearance to a linen collar. A sample of the paper which he thus found suitable and used, is shown, filed with the original application of the said Evans for his patent, above referred to.
'To produce a paper having the above-mentioned qualities, what is known as 'hard stock' should be used in larger proportion than is required for other descriptions of paper, except for that which is known as banknote-paper, and in the process of pulping the stock dull knives should be used, and the distance of the knives or beaters, and their mode of striking the knife-bar, should be so arranged as to draw out the pulp instead of chopping it short, constituting what is known as the 'long-beating' process; and this long beating should be continued for a great length of time, so that the fibre shall be not only long but fine, and thereby the paper not only be more strong, but more smooth and even, and the fibre become bedded in the thickness of the paper so as not to mar the surface.
'After the stock is thus pulped, the paper, if made upon a cylinder machine, may be run off in two or more sheets of pulp, which may be united, as they run from several cylinders–and pass together, one over the other, under the press or rolls–into one sheet of the required thickness; or one sheet may be first run off upon a reel, and then united in the same manner with another sheet running from the cylinder, and both passing under the rolls together; but the former mode is found preferable in practice, as the several sheets are in that case of equal degrees of moisture, and therefore form in that state a more perfect union. In case a single sheet is used, made upon a cylinder machine, as its thickness and length of fibre tend to retain the moisture, great care must be taken to expel the water from the pulp.
'In case a Fourdrinier machine is used, the paper may be made of the required thickness from a single sheet of pulp; but the 'wire' on which the pulp is formed should be supplie with extra suction-boxes to remove the water, and its forward motion should be much slower than in the manufacture of ordinary paper, whilst the lateral or vibratory motion of the wire should be as rapid or more rapid than usual, in order to afford greater time and motion for extracting the moisture from the pulp.
'Care should also be used to give to the paper in the pulp the slight bluish tinge which is found in starched linen, and to prevent its having a dead or yellowish-white color.
'The invention of said Evans is not confined to the use of any specific proportion of 'hard stock,' nor to any specific time or mode of 'long beating' of the pulp, nor any specific method of running off or uniting the sheets of pulp, or of exhausting the moisture, or of giving the required tint; but it is believed that the quality of stock to be used, the process by which the length of fibre and the required shade of color are produced, will be readily understood by paper manufacturers, having regard to the above description and the purposes for which the paper is designed.
'This paper may be prepared with animal sizing, and when so prepared it is known in the trade as parchment-paper, or such sizing may be dispensed with.
'The paper may also be covered on one or both sides with a thin varnish of bleached shellac, and allowed to dry; or such varnishing may be dispensed with. The paper, having been passed between polishing rollers such as are in general use for polishing paper or cloth, is ready to be made into collars.
'The collars are put out, and the button-holes, if any, are punched by dies; and the collar may be indented along a line running parallel with the exposed edges, so as to imitate the stitching of sewed collars, and of such various patterns or shape as are in use, either 'stand-up' or 'turn-over;' and provided, if required, with button-holes, by means of which they might be attached to shirts in the usual manner.
'What is claimed under this patent is the invention of the said Evans, and desired to be secured by letters-patent, as a new ...