APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.
MR. CHIEF JUSTICE FULLER delivered the opinion of the court:
Was a wood pavement "composed of blocks, each side having a single plain surface and one or more of the sides being inclined, and the blocks being so laid on their larger ends as to form wedge-shaped grooves or spaces to receive concrete or other suitable filling," patentable April 5, 1870, in view of the state of the art?
Chambers had, in 1824, described a pavement of pyramidal stones, twelve inches square at the base, eight inches square at the apex, and ten inches high, placed with their larger end downward, and the interstices filled with loose materials insoluble in water.
Lindsay's invention, in 1825, comprised stones made of a wedge-shaped form, laid with their broadest ends downwards, leaving a considerable space between them to be closed with smaller wedge-formed stones, with fine gravel or grout worked between them.
Nicholson's pavement was composed of blocks of wood laid in rows across the street, with spaces obtained by interposing narrow wooden strips between the blocks, to be filled with concrete or other suitable filling.
Cowing disclaimed "a wood pavement composed of wedge-shaped blocks when the blocks are laid alternately on larger and smaller ends, so as to form a continuous surface of wood," but claimed the arrangement of the blocks so as to leave wedge-shaped spaces to receive filling to act as a key to bind the blocks together. But reference to these prior patents clearly shows that the formation of wedge-shaped spaces to receive concrete or other filling by laying blocks with one or more inclined sides with their larger ends downwards, the filling acting as a key, and the use of wooden blocks in that way, were well known at the time of the alleged invention under consideration.
The blocks of the Lindsay patent are of the same shape as those of Cowing, but are of stone, while the latter are of
wood, but this was nothing more than the substitution of one material for another without involving a new mode of construction, or developing anything substantially new in the resulting pavement. Hotchkiss v. Greenwood, 11 How. 248; Hicks v. Kelsey, 18 Wall. 670; Smith v. Goodyear Dental Vulcanite Co., 93 U.S. 486; Phillips v. Detroit, 111 U.S. 604.
The filling under Lindsay's patent was with small stones, fine gravel, or grout, while Cowing names a filling of earth, gravel, or some other similar substance, but Nicholson used broken stones, gravel and tar, or other like material, being the same filling for the same purpose and with substantially the same result, while the material of the Nicholson block was the same as that of Cowing.
It is argued that gravel and similar substances cannot be forced into the stone blocks of the Chambers and Lindsay patents, and that in ramming gravel between wooden blocks it of necessity indents the blocks, and the filling must adhere much more firmly than would be the case if they were stone. There is nothing said about this by Cowing in his specification, but he is entitled, if this is an advantage directly following from the alleged invention as described, to the benefit of it, whether he perceived it or not. Stow v. Chicago, 104 U.S. 547, 550. The same effect, however, would be obtained in ramming filling between the blocks of any wooden pavement, and the same liability of the filling "to extend laterally into the fibre of the wood and seat itself therein" is found in the Nicholson pavement.
In the Chambers patent the blocks had four inclined sides, which would make the filled space run lengthwise as well as crosswise. In the Cowing patent the crevices run lengthwise ...