Opinion of the Court.

plows," has a diagonal scraper suspended beneath a wheeled carriage and capable of being raised and lowered by a chain or cord wound upon a shaft turned by a hand-wheel, the shaft having a locking device consisting of a ratchet-wheel and a dog. There is but one hand-wheel which raises and lowers both ends of the scraper together, while the previous Day patent had two hand-wheels and chains for raising and lowering the two ends of the scraper independently. The substance to be dealt with was snow, and rails and their bed, with some distance on each side, the surface to be cleared, but so as not to encumber the circumjacent highway. In view of the work to be done, light hand-wheels might be sufficient, yet if mo mentum as a positive aid were found necessary, their weight could be increased.

The Boone patent of October 21, 1851, shows a windlass with drums for winding up cords to raise weights, with a wheel and pinion and suitable gearing for turning the drums, and a brake stop.

The Lyon patent of August 6, 1878, for improvement "in combined ship's pump and windlass" has very heavy momentum hand-wheels for operating either pumps or a winding drum. Apparently these wheels are heavier for the same diameter than the Taft hand-wheels.

The Tyler patent of February 14, 1882, for "friction brake for steering wheels" shows a momentum hand-wheel for operating the rudder of a vessel, and a pedal brake for holding the wheel in any desired position. The wheel is not described in the specifications as a momentum wheel, but, as it is such in fact, this is not material.

Appellee's expert Bates testifies that such wheels "are commonly used as momentum wheels and have been as long ago as 1871. The operator gives them an impulse and their momentum carries them on."

It is not controverted that a heavy wheel with a crank pin at the side, such as shown, was a common and very wellknown form of construction for the specific purpose of applying momentum to a crank.

The wheels employed in landing ferry-boats and the ancient

Opinion of the Court.

spinning-wheels, instanced by the District Judge, readily recur as illustrations of the use of momentum in the continuance of motion. Indeed, it is admitted that all wheels for raising, winding up and hoisting, if the load is light enough, "are capable of performing some movement after the hand of the operator has left them," and the principle does not depend upon the extent of the aid thus given to propulsion.

We find then that hand-wheels in the regulation of scraperblades for ditching, grading, street and road clearing were old, and that this was true of the utilization of momentum when required by the exigencies of the case, as in capstanwheels, crank-shaft wheels, rudder-regulating wheels, pumpoperating wheels, and so on. Every one knew that momentum propelled the capstan-wheel, the rudder-wheel, the pumpwheel, the spinning-wheel, after the hand of the operator was withdrawn.

The law of nature was familiarly understood that any moving body tends to continue in motion with a force proportionate to its speed and weight; and it was well known that the function of fly-wheels and balance-wheels was, in the language of Mr. Brevoort, "to absorb energy when the machine is moving at greater speed with the least resistance, and to give it out again when the parts meet with greater resistance."

The Circuit Court was of opinion that the use in roadmachines of wheels made heavier in the adjustment of momentum to resistance was not a new use of momentum wheels in working machinery, and that the difference in weight in handwheels performing the service of rotary levers was a difference in degree and not in kind. And the contention as to infringement confirms this view.

Mr. Bates describes appellee's machine as "composed of a wheeled frame or carriage, beneath which is suspended a turn-table and to this turn-table the scraper-blade is attached. The turn-table is suspended by rods from the ends of a bar which extends across the machine and is capable of vertical motion between uprights. The bar is supported by being pivoted near each end to the lower end of a rack-bar. The rack-bars are moved up and down by pinions on horizontal

Opinion of the Court.

shafts, the shafts extending back toward the rear of the machine. At their rear ends are bevel gears which mesh with pinions on cross-shafts, and there is a hand-wheel on each crossshaft to turn it. There is also a band-wheel on each cross-shaft, which is embraced by a friction band or band-brake. The band is connected to a spring-treadle so that the operator can loosen it by putting his foot on the treadle. The hand-wheels are small wheels comparatively, similar to those used on carbrakes, and are certainly much too light to act as fly-wheels or momentum-wheels against such a weight as that of the scraper and turn-table and attachments. Besides this, the strain on this weight is a constant one, always acting in the same direction upon the hand-wheels. The scraper is moved forward by means similar to ordinary plow-beams, which are connected with the turn-table, the turn-table being connected with the front of the machine, or rather to the king bolt by a draft-ring and link. There is no device for acting with a thrust upon the scraper-wheel."

Without subjecting the evidence to critical examination, it is enough that it is admitted that these hand-wheels are smaller and lighter than those of appellant, and that to make out infringement it is requisite to construe the patent in suit as covering all wheels whose momentum can be utilized in operating a roadmaking machine.

On the one hand it is contended that appellee's hand-wheels are not momentum wheels at all and that the continued motion of the blade is due to earth pressure and not to momentum; while, on the other, this is denied, and it is insisted that these wheels are to be treated as momentum wheels because they will store up "a useful amount of energy to make them continue their further movement, when the hand of the operator is taken therefrom," provided "the operator shall give to the wheel a rapid and vigorous pull, moving it while his hand is upon it at a greater speed than it afterwards maintains."

We can hardly doubt that similar manipulation of many of the old wheels would produce the same result, and if there could be infringement if this were not so, there would be anticipation if it were.

Opinion of the Court.

But the decision of the Circuit Court rested on the want of invention, and in that conclusion we concur.

"The whole essence of the Taft invention," says appellant's counsel, is the application of momentum to carry the wheel along "sufficiently to enable the operator to take a new grasp, (as explained by Mr. Brevoort,) without clamping the wheel to prevent its running backward."

Did increasing the weight of the hand-wheels in this class of road machines, in order to correct the tendency of smaller wheels to reverse, involve patentable novelty?

We do not think so. The use of hand-wheels as a substitute for straight levers in this class of machinery was old, and, whether the wheels were light or heavy, (and heavy wheels were old,) they alike performed the service of rotary levers.

The patentee had acquiesced in the rejection of his claim for a road machine with a blade that was elevated or depressed by a hand-wheel operating through suitable gearing, and could not claim the benefit thereof, or of an equivalent construction of the claims allowed. To make the hand-wheels heavier was to increase their capacity, but the same end was accomplished by substantially the same means. The means were old, and their enlargement by a common method to attain a better result in the particular instance merely carried forward the original idea, and was nothing more than would occur to the experienced mechanic.

It appears to us that, it being seen that the tendency to reverse would prove objectionable in the proposed machine, the suggestion that the hand-wheels should be made heavier in order, by greater momentum, to correct that tendency, as it was well known increase in weight coupled with adequate rotative force would, sprang naturally from the expected skill of the maker's calling, and that this use of the heavier wheel did not make the mechanism in any proper sense a new thing evolved by the inventive faculty.

The substitution of the heavier wheel was not the product of a creative mental conception, but merely the result of the exercise "of the ordinary faculties of reasoning upon the materials supplied by a special knowledge, and the facility

Statement of the Case.

of manipulation which results from its habitual and intelligent practice."

Decree affirmed.

UNITED STATES v. GILLIAT.

APPEAL FROM THE COURT OF CLAIMS.

No. 535. Submitted October 13, 1896. - Decided October 26, 1896.

It was the intention of Congress, by the language used in the act of August 23, 1894, c. 307, 28 Stat. 424, 487, to refer to the Court of Claims simply the ascertainment of the proper person to be paid the sum which it had already acknowledged to be due to the representatives of the original sufferers from the spoliation, and not that the decision which the Court of Claims might arrive at should be the subject of an appeal to this court; and that when such fact had been ascertained by the Court of Claims, upon evidence sufficient to satisfy that court, it was to be certified by the court to the Secretary of the Treasury, and such certificate was to be final and conclusive.

THIS was one of the claims originating in the depredations committed by French cruisers upon the commerce of American citizens prior to the year 1800, commonly called French Spoliation Claims. Pursuant to the provisions of the act of January 20, 1885, c. 25, 23 Stat. 283, the claim mentioned in this proceeding (among many others of a like nature) was presented to the Court of Claims, and that court made an award, advising the payment of the claim, which was reported to Congress, pursuant to the act above mentioned, and Congress, by the act of March 3, 1891, c. 540, § 4, 26 Stat. 862, 897, 900, appropriated money "to pay the findings of the Court of Claims on the following claims for indemnity for spoliations by the French prior to July 31, 1801," (among others, on page 900,) "on the ship Hannah, Richard Fryer, master, namely, to John A. Brimmer, administrator of John Gilliat, deceased, $35,840.44." By the last clause in the act (page 908) Congress added a proviso as a condition to the payment of the awards mentioned