Brown v. Crane Co. , 133 F. 235 ( 1904 )

GROSSCUP, Circuit Judge (concurring).

Two facts are undisputed. The first of these relates to the difference of purpose between rubber hose and clay tile, on one hand, and appellant’s core on the Other; as also the difference between the character of material out of which, respectively, they are made, and upon which the machines are meant to operate. The second fact is the existence of a commercial demand, during a long period, for machine made cores — a demand that the appellant was the first to supply.

The purpose of rubber hose and clay tile is to carry off fluids or gases, gathered from sources external to the tubes themselves. The purpose of the perforation through appellant’s core is to carry off gases generated in its own sands by the hot surrounding iron. Rubber hose and clay tile, therefore, are tubes proper, performing the function of tubes; while the perforation through the core is a drainage opening only. . .

,The material out of which rubber hose and clay tile are made, is firm and cohesive. The inventor, contemplating a machine to act on such material, was not concerned with the inquiry whether the material teould collapse, or how collapse could be prevented. On the other hand, the material, out of which cores are made, is a sharp sand intermixed with flour, cohesive to a very small degree, fragile, and subject to collapse on slight jar or vibration. It was due to this quality of the material, perhaps more than to anything else, that before appellant’s invention, no cores were actually made except according to the clumsy tóolding process. Thus it appears, that though the product of the core machine, and the product of the rubber hose and clay tile machines, are in form alike, varying chiefly in the diameter of the interior opening; and though the machines themselves operate mechanically much the sáme; the end to be subserved, and the material to be worked upon, dre essentially different. To the mind seeking a way to make a core machine, a problem :was presented essentially different from the problem presented ‘to the minds that previously created the rubber hose and clay tile machines. "

When, then, the second undisputed fact is also borne in mind — that though a real commercial demand existed for machine made cores, none appeared up to the time of appellant’s invention — the real merit of appellant’s claim to invention is made clear, viz.: That dealing with a material previously supposed to be insusceptible to manufacture into cores by machines, appellant discovered that a practical, efficient core machine could, in fact, be made; going to the allied arts, not for the generative thought, but for the mechanical means of carrying out the thought. Does not this constitute patentable invention ?

The constitutional basis of the patent laws is to promote the progress of the useful arts by giving to him who creates something new and useful a property in the thing created; and, as I look at it, the life germ of any creation is not so much the mechanical form in which it finally becomes embodied, as the flash of inspiration that, out of the darkness in which it lay concealed, first revealed its possibility. The possibility of a thing once seen, it is of no great moment that a ready mechanical means of bringing it into form is at hand; nor that the mechanical means used are similar to those employed before in the allied arts; nor that any mind would have seen the adaptability, mechanically, of what already existed to what was now, for the first time, about to exist. The true inquiry is, Did any one before, in- creative imagination, actually see this new thing? Did it not require invention to discern, in the first instance, that the new thing was possible ? Is it not invention to bring out of what to others seems chaos the form and feasibility of the new and useful thing?

Invention is not, in my judgment, confined to the concrete mechanical form into which an idea ultimately evolves. Invention is the idea itself, the burst of new thought, the discovery; and patentable invention is the conjunction of these with appropriate and efficient mechanical means. Confessedly, an old idea, carried out mechanically in a new form, is patentable invention. To my mind a new idea, carried out mechanically in an old form, ought equally be regarded as patentable invention. To hold otherwise is to dethrone the head and enthrone the hands — to leave genuine- genius unrecompensed, while placing the inventor’s crown on mechanical skill.

But there is authority for the conclusion reached by the court, notably the recent case of Kokomo Fence Machine Co. v. Kitselman, 189 U. S. 8, 23 Sup. Ct. 521, 47 L. Ed. 689, and, expressing my dissent on principle, I am compelled to follow that authority, and concur in the judgment reached.

The decree is affirmed.