MR. JUSTICE BROWN delivered the opinion of the court.
No serious question is or can be made regarding the infringement in this suit, the defendants relying solely upon the want of novelty. To determine satisfactorily the question whether there is involved in this device sufficient of novelty to support a patent, it is necessary to consider somewhat at length the progress which had been made in constructing barbed wire fences prior to the issue of this patent, as it appears both from the face of the prior patents themselves and from the oral evidence introduced by the defendants tending to show an unpatented use of such device before the application was made in this case.
(1) The use of wire fences, composed either of a single wire, or of two or more wires twisted together, antedates by many years the barbed feature of such fences. But, either by reason of their comparative invisibility or their weakness, they proved an insufficient protection against cattle, and fell largely into disuse. Something was needed, not so much to strengthen them, as to deter cattle from encountering them or testing their strength. Natural hedges of thorn, which in effect contain the principle of the barbed wire, have been employed both in this country and in England from time immemorial. Fences of other materials and various forms had been armed with pickets, spurs, iron points, spikes, sharp stones, or bits of broken glass inserted in plaster, but prior to 1867 no one seems to have conceived the idea of arming wire fences with a similar protecting device. In July of that year, however, one William D. Hunt took out a patent for arming the wires with a series of small spur-wheels, their spurs being sharpened so as
In the same year, and about four weeks before the patent to Hunt, although his actual invention was antedated by Hunt in point of time, Lucien B. Smith took out a patent for a wire fence, having spools of iron or wood strung upon it, each spool being perforated and provided with four spurs projecting radially from them, and so arranged that they would revolve, while they were held in place lengthwise of the wires by slight bends or deflections in the wires at a distance of two or three feet apart, forming short straight lengths of about four inches, upon which the spools were hung. This patent contained the first suggestion of a barb proper, though in a very imperfect form; but it embodied an idea of which the public was not slow to avail itself, and gave an impetus to succeeding inventors, which finally resulted in the barbed fence now in use. Though valuable as illustrating the state of the art, it will scarcely be claimed to be an anticipation of the Glidden device.
The patent of February 11, 1868, to Michael Kelly indicated a decided step in advance of its predecessors, consisting as it did of small flat pieces of iron or steel, cut from a plate by machinery, each provided with a hole corresponding with the size of the wire, though a little larger, so that they could be introduced easily upon the wire, either by proper machinery or by hand. "These pieces," says the patentee, "after being strung on the wire at distances about six inches apart, are compressed laterally upon the wire by a blow of a hammer, or otherwise, so as to flatten the hole e, and also correspondingly
says of this in his specification: "I can, where it is desirable to increase the strength of the wire, lay another wire of the same or a different size alongside of a thorn-wire, and can twist the two together by any suitable mechanism." No claim was made for this method of construction in the original patent, although it seems to have been made the principal feature of a reissue obtained in 1876, which was not made an exhibit in this case. In this reissue he made a claim for twisting two wires and a series of thorns strung upon one of the wires and held in position by them. In the case of Washburn & Moen Manufacturing Company v. Fuchs, 16 Fed. Rep. 661, it was held that if this reissued patent were to be considered as covering more than the mode of fastening the plate barbs to the wire in the combination stated, i.e. by hammering, and as extending
A second patent to Kelly, issued November 17, 1868, exhibits a flat wire pierced at intervals of six inches, through which thorns were inserted and locked to the wire by the blow of a hammer or otherwise. This device evidently bears a much more distant resemblance to the Glidden patent than the prior one, and is far from being an anticipation.
The application for the patent in suit was filed October 27, 1873, though the patent was not issued until November 24, 1874. Subsequent to the application for this patent, and on March 14, 1874, Glidden filed an application for an improvement in wire stretchers for fences, upon which a patent was issued May 12, 1874. It is not perceived how this patent could affect in any way the pending application for the later patent. The patentee abandoned nothing he had claimed before, but sought, as an improvement upon the former, to claim a slotted tube midway between the posts, in which was put a coil spring to spread the wires and automatically tighten them and keep them at the proper tension as against expansion by heat and contraction by cold. If the later application had covered the same invention as the prior application for the November patent, the later patent might have been void under our ruling in Suffolk Company v. Hayden, 3 Wall. 315; but his claim was for a combination of wires with the slotted tube, containing a coiled spring and perched upon a post. In this application he makes no mention whatever of barbs as a feature of his claim, although in describing his invention he mentions the use of two wires provided at suitable intervals with spurs coiled around them, and which are spread apart between the coils to keep the latter from moving longitudinally upon the wires. But he
From this review of the state of the art at the time the patent in suit was issued it is evident that Glidden can neither claim broadly the use of the plain or the twisted wire, nor the sharp thorns or barbs, nor indeed the combination of the two as they appear in the Kelly patent. It does not follow, however, that he did not make a most valuable contribution to the art of wire fencing in the introduction of the coiled barb, in combination with the twisted wire, by which it is clamped and held in position. By this device the barb was prevented from turning or moving laterally and was held rigidly in place. If this be also true of the device shown in Figure 2 of the Kelly patent of February 11, 1868, the immobility of the barb in that
It is true that the affixing of barbs to a fence-wire does not apparently give a wide scope to the ingenuity of the inventor; but from the crude device of Hunt to the perfected wire of Glidden, each patent has marked a step in the progress in the art. The difference between the Kelly fence and the Glidden fence is not a radical one, but slight as it may seem to be, it was apparently this which made the barbed-wire fence a practical and commercial success. The inventions of Hunt and Smith appear to be scarcely more than tentative, and never to have gone into general use. The sales of the Kelly patent never seem to have exceeded 3000 tons per annum, while plaintiff's manufacture and sales of the Glidden device (substituting a sharp barb for a blunt one) rose rapidly from 50 tons in 1874 to 44,000 tons in 1886, while those of its licensees in 1887 reached the enormous amount of 173,000 tons. Indeed, one who has travelled upon the western plains of this continent cannot have failed to notice the very large amount of territory enclosed by these fences which otherwise, owing to the great scarcity of wood, would have to be left unprotected.
Under such circumstances courts have not been reluctant to
So in Consolidated Valve Company v. Grosby Valve Company, 113 U.S. 157, 179, it was said "that Richardson's invention brought to success what prior inventors had essayed and
In Smith v. Goodyear Dental Vulcanite Company, 93 U.S. 486, 495, it was said by the court: "We do not say the single fact that a device has gone into general use, and has displaced other devices which had previously been employed for analogous uses, establishes in all cases that the later device involves a patentable invention. It may, however, always be considered; and, when the other facts in the case leave the question in doubt, it is sufficient to turn the scale." See also Magowan v. New York Belting Co., 141 U.S. 332, 343.
(2) Thus far we have considered, as bearing upon the state of the art, devices, the character, construction and scope of which were exactly defined in the specifications and drawings of actual patents, the only question presented being the proper interpretation of such patents, and the bounds they had set to the ingenuity of succeeding inventors. We have now to deal with certain unpatented devices, claimed to be complete anticipations of this patent, the existence and use of which are proven only by oral testimony. In view of the unsatisfactory character of such testimony, arising from the forgetfulness of witnesses, their liability to mistakes, their proneness to recollect things as the party calling them would have them recollect them, aside from the temptation to actual perjury, courts have not only imposed upon defendants the burden of proving such devices, but have required that the proof shall be clear, satisfactory and beyond a reasonable doubt. Witnesses whose memories are prodded by the eagerness of interested parties to elicit testimony favorable to themselves are not usually to be depended upon for accurate information. The very fact, which courts as well as the public have not failed to recognize, that almost every important patent, from the
The testimony of the defendant tended to show the existence, public exhibition and use of a number of fences prior to the date of the application in this case; but what is known as the Morley fence is supported by the largest amount of evidence, and was the one the learned District Judge who heard this case in the court below held to have been an anticipation of this patent. (33 Fed. Rep. 261.)
A panel of this fence appears to have been exhibited at a county fair in Delaware County, Iowa, at Delhi, in 1858 and 1859. It appears that Morley owned lands in Delaware County; that his family lived in Pennsylvania; that for a number of years, from 1858 to 1864, he spent a portion of his
In all some twenty-four witnesses were sworn on behalf of the defendants to the existence of the Delhi fair fence. According to the recollection of some of the witnesses it was made of three or four strands of single wire, on which the barbs were fastened, the wires being attached at their ends to posts in the ground, or to a post and a tree; and that the top wire had barbs on it formed of short pieces of wire wrapped around it, some say once, others twice, and still others three times. The other two or three strands of single wire were without barbs. Beneath the top barbed wire was a board to attract the attention of the cattle, either secured to the posts or suspended by a wire from the top wire strand. This fence was put up on the second day of the fair and
Other witnesses sworn by the plaintiff, including the officers of the fair association and the editor of the local newspaper, were present at the fair, but have no recollection of anything of the kind. This, however, is purely negative testimony, and of no great value.
It further appeared that in 1866 Morley took out a patent for a triangular cattle pen, built of posts and boards supported upon wheels, so constructed that it could be moved by the animal inside of it. Some seven or eight witnesses testified that at different times when they saw this machine it had on it one or more strands of fence-wire with barbs or prickers on them, put on in the same manner as were the barbs on the Delhi fair exhibit, and the whole strung on the top of the posts above the boards.
Other witnesses testified to seeing fences upon farms owned or occupied by Morley, and in a yard near his mill, over which strands of barbed wire were stretched in the same manner as in the Delhi fence.
Upon the other hand, plaintiff met this testimony with that of a large number of witnesses who had seen these fences and also the cattle pen, and who testified that there was no barbed wire connected with them. The members of Morley's family, including his widow and sons, were also sworn and testified to the effect that he had never said anything about barbed wire or barbed wire fences, although it is but just to say that they remained in Pennsylvania and had never resided in Iowa. One of his sons testified that he visited Iowa once, in 1858, 1859, or 1860; and that he was at his father's mill for some time and saw no barbed wire about it, nor did he hear his father say anything about it. It is useless to go further into the detail of this testimony.
Even conceding that Morley did exhibit a wire fence armed with barbs at the Delhi County fair, we do not think the testimony connected with this fence makes out a case of prior
While we think the testimony goes far to establish the fact that Morley exhibited a wire fence at this fair, and perhaps also used it upon his farm at about the date claimed, we are far from being satisfied that it was the Glidden device, or so near an approximation to it as to justify us in holding that it was an anticipation.
Defendants also introduced testimony tending to show that one Long, a farmer of Delaware County, Iowa, made some barbed wire fence in the spring and summer of 1873. He put the barbs upon smooth wire; made them out of staples, with two irons having holes in the ends of each, running down into the irons from the ends longitudinally, of a little larger size than the staples to be used, and of the depth of the prongs of the staples. Two pieces of this barbed wire are produced as exhibits. It was not denied by the plaintiff that Long built
The most cogent evidence is that of the parties of whom Long appears to have purchased the lumber to build this fence, who swore that it was shipped in January, 1875, a statement which was verified by the book-keeper in the employ of the Illinois Central Railroad, who showed the first shipment of lumber to Long to have been in January, 1875.
The existence of barbs upon what is known as the Chester D. Stone fence in 1872 is sworn to by a large number of witnesses, and denied by an equal number who were acquainted with the facts, and testified that it was an ordinary wire fence. Stone said it was made by using fence staples for barbs, putting them on by putting a staple astride of the wire, and hammering them on an iron wedge until the points passed one another, then placing the edge of the wedge between the points and driving on the head of the staple until the points of the staple were spread. The points stood out from the wire at right angles. Of all the testimony bearing upon this fence, and of the others, with a single exception, it is sufficient to observe that it is limited to a staple twisted around a single wire to form a barb, and that it totally fails to indicate the combination of the twisted wires and coiled barb of the Glidden patent. The testimony with reference to the existence of this fence was subjected to a careful examination by Mr. Justice Brewer in the case against the Grinnell Wire Company, 24 Fed. Rep. 23, 29, who reached the conclusion that it was unworthy of belief. Upon the perusal of this testimony we are satisfied that his conclusion was correct.
The testimony with reference to the Hutchinson fence tends to show the existence of a barbed wire fence on a farm near Manchester as nearly as 1868 or 1869. The depositions of four members of the same family were taken, one of whom did the work in putting the barbs upon the fence. He swears "it was a fence with posts and wires strung along on them,
Some six witnesses were called by the defendant to establish the existence of a barbed wire on a fence between 1857 and 1860 upon the farm of one Beers, near De Kalb, in Illinois. The testimony showed it to be a single wire with barbs on it, forming part of a fence around a hay stack. The barb was first twisted around, and then extended along the wire possibly one-half inch to an inch, and then twisted again in the same way. Another wire forming part of a fence upon the same farm seems to have been composed of two wires, the barb being fastened to one of them. Another witness describes the fence as "two wires twisted around, and there was another piece of wire, I should judge about six inches in length, twisted around this wire, and one end projected one way and the other end the other." It appears that the prior use of this wire was set up in a case by these same plaintiffs against one Haish in the Circuit Court for the Northern District of Illinois, 10 Bissell, 65, and was held to have been insufficiently proved. A specimen of the twisted wire produced in that suit was also put in evidence in this. It is very improbable that it could have been invented by a boy in his early teens, such as Beers then was, and it is shown that he subse
There was a vast amount of testimony of similar character tending to show the use of coiled barbs upon fence-wires, which it would serve no good purpose to discuss in detail. There was evidently prior to Glidden's application more or less experimenting in a rude way in and about Delaware County, upon the subject of barbed wires as applied to wire fences, and we think it is quite probable that coiled barbs were affixed to single wires before the Glidden application was made. We are not satisfied, however, that he was not the originator of the combination claimed by him of the coiled barb, locked and held in place by the intertwisted wire. It is possible that we are mistaken in this; that some one of these experimenters may have, in a crude way, hit upon the exact device patented by Glidden, although we are not satisfied from this testimony, whether or by whom it was done. It is quite evident, too, that all or nearly all of these experiments were subsequently abandoned. But it was Glidden, beyond question, who first published this device; put it upon record; made use of it for a practical purpose; and gave it to the public, by which it was eagerly seized upon, and spread until there is scarcely a cattle-raising district in the world in which it is not extensively employed. Under these circumstances, we think the doubts we entertain concerning the actual inventor of this device should be resolved in favor of the patentee.
The decree of the Circuit Court will, therefore, be
Reversed, and the case remanded with instructions to enter a decree for the plaintiff for an accounting, and for further proceedings in conformity with this opinion.
Mr. JUSTICE FIELD dissented, upon the ground that there was no novelty in the invention.