DOCUM A ENTS
RELATING TO
5AiS WIIhNS' PA'irTEr
FOR THE
EIGHT-WHtEELED  CAR.
Ncw-Jork'
JOHN W. ASMIERMAN, PRINTER,
No. 60 WILLIAM-STREET.
1856.'~~~~~~~~~~~~~~~~~~~~~~~~~~~~2








RE  C LATING TO
ROS WINANS)'PABTENTlT
FOr THE
EIGHT-WHEELED CAR,
ruem   ork:
JOHN W. AMERMAN, PRINTER,
No. 60 WILLIAM-STREET.
1856.








(COPY OF THE PATENT.)
The United States of America.
To all to whom these Letters Patent shall come:
Whereas, Ross Winans, a citizen of the United States, hath
alleged that he has invented a new and useful improvement
in the construction of cars or carriages intended to run upon
rail-roads, which improvement he states has not been known
or used before his application; hath sworn that he does verily believe that he is the true inventor or discoverer of the
said improvement; hath paid into the Treasury of the JUnited
States the sum of thirty dollars, delivered a receipt for the
same, and presented a petition to the Secretary of State, signifying a desire of obtaining an exclusive property in the
said improvement, and praying that a patent may be granted
for that purpose:
These are, therefore, to grant, according to law, to the said
Ross Winans, his heirs, administrators or assigns, for the
term  of fourteen years from the first day of October, one
thousand eight hundred and thirty-four, the full and exclusive right and liberty of making, constructing, using, and
vending to others to be used, the said improvement, a description whereof is given in the words of the said Ross Winans himself; in the schedule hereto annexed, and is made a
part of these presents.
In testimony whereof, I have caused these letters, to be
made patent, and the seal of the United States to be hereunto
affixed.
Given under my hand, at the city of Washington, this first
day of October, in the year of our Lord one thousand eight
hundred and thirty-four, and of the Independence of the
United States of Amrerica the fifty-ninth.
[L. s.]                     ANDREW  JACKSON.
By the President,
JOHN FoRSYTH, Secretanry of State.




4                       SPECIFICATION.
CITY OF WASHINGTON, TO WIT: I do hereby certify that the
foregoing Letters [Patent were delivered to me on the first
day of October, in the year of our Lord one thoeisand eight
hundred and thirty-four, to be examined  that I have examined the same and find them  conformable to law, and I do
hereby return the same to the Secretary of State, within fifteen days firom the date aforesaid, to wit, on the first day of
October, in the year aforesaid.
B. F. BUTLER,
Attorney General of the United States.
10  THE ScHIEDULE referred to in these Letters
Pateht, and making part of the same, containing a description, in the words of the
said Itoss Winans himself, of his impiovement in the construction of cars or carriages
intended to run upon rail-roads:
11  To  ALL WIHONM IT MAY  CONCER:-   Be it
known, that I, Ross WINANS, civil engineer,
of the city of Baltimore, in the State of
Maryland, have invented a new  and useful
Improvement in the  improvement in the construction of cars or
corctrri   of crs  carriages, intended to travel upon rail roads;
which improvement is particularly adapted
Passenger cars.    tO passenger cars, as will more fully appear
high velocities,  by an exposition of the difficulties heretofore
cause of difficulties.   experienced in the running of such cars at
high velocities, which exposition I think it
best to give in this specification, for the
purpose of' exemplifying the more clearly
the object of mly said improvement.
Rail-roads in this 12   In the construction of all rail-roads in this
country, in view,  country, which extend to any considerable
distance, it has been found necessary to
Curves of but a few   admit of lateral curvatures, the radius of
hundred feet radius
which is sometimes but a few hundrecl feet;
and it becomes important, therefore, so to
construct the cars, as to enable them  to
constitute the difficul-  overcome the difficulties presented by such
ties to be overcome,   curvatures, and to adapt themn  for running
tio the all parts of  with the least friction practicable, upon all
the road.        parts of the road.  The friction to which I
now  allude is that which arises fr'om  the




Sin
I send to you a pamphlet containing a copy of the
P'atent, which was granted to me on the 1st of October, 1834,
a;nd extended for seven years, from the 1st of October, 1848,
for what is commonly known as the eight-wheeled car.  I
invite your attention and that of the Board of Directors of'
the Rail Road Company with which you are connected, to
the specification annexed to the Patent, and to the legal
lecisions in rega.rd to the Patent, which you will find in the
palplllet.  I have tried three suits at law upon the Patent.
In one I obtained a verdict.  In the others, the juries were
unable to agree.  You will find in the pamphlet, the decisi.ons -that have been made by Chief Justice Taney and by
Mr. Justice Nelson and Judge Conkling, all of them in muy
Ihvor.  I call your attention particularly to these decisions,
an ld ask that the Board of Directors of your Road may be
madle acquainted with them, in order that they may fully
understand the grounds of my confidence in the justness of
the claim which I am now engaged in enforcing before th-be
legal tribunals of mny country.  I believe that the information afforded by this pamphlet. will be new to most of those:
who control the action of the Rail Road Comlpanies of the
-United States, and that it will disabuse their minds of very
mnuch of the prqejudice whlich -they entertain in regard to my
lla imus under my Patent.
Yours rlespectfully,
ROSS WINA'NS.
















SPECIFICATION.                        5
contact between the flanches of the wheels'riction meant is
between flanch and
and the rails, whlich, when it occurs, causes   r.Ail.
a great loss of power, and a rapid destruction of, or injury to, both the wheel and the
rail, and is otherwise injurious.
The high velocities attained by the ia- 13  Alodern highveloprovemeints made in locomotive engines, and   cities
which are not only sanctioned but demuanded by public opinion, render it necessary   make points formerly
that certain points of construction and ar-  fosprtl atten
rangement, both in the roads and wheels,
which were not viewed as important at for
mer rates of traveling, should now  receive
special attention.  The greater mnoentum            Momentum of load
of the load, and the intensity of the shocks          s and it consiy ofcusand  concussions,  which  are -unavoilable,  sions, not to be neglected, as they render
even under the best constructions, are among
those circumstances which must not be neglected, as the liability to accident is thereby   accidents more pronot only greatly increased, but the conse-  mbableore seiouence
quences to be apprehended much more serious.
The passenger and other cars in general14           Coiomon fouruse upon rail-roads have ibur wheels, the   to 5 feet apart, aceoraxles of which are placed firom  three and a   ding to nature of
half to five feet apart; this distance being
governed by the nature of the road upon
which they run, and other considerations.
When the cars are so constructed that the 15  Parallel axles, filr
apart, bring flanehes
axles retain their parallelism, and are at a   and rart, rin contact,
considerable distance apart, there is a neces-   on sharp cnrves.
sary tendency in the fianches of the wheels
to come into contact with the rails, especially
on the curvatures of least radius, as the axles
then vary more fiom  the direction of the
radii.  From this consideration, when taken          Therefore, axles
alone, it would appear to be best to place   near together,
the axles as near to each other as possible,
thus causing themn to approach momre nearly   approaching radii of
to the direction  of the radii of the curves
and the planes of the wheels to conform  to
the line of the rails.
There are, however, other circumlstances 16 Other circmstances
which must not be overlooked in their con-   to be looked at.
structions.  I have already alluded to the




6                       SPECIFICATION.
Shocks at high Ye-  increased force of the shocks from  obstruclocities.        tions at high velocities; and whatever care
Perpetual operation   may be taken, there will be inequalities in
of small inequalities  
in wheels and rails.   the rails and wheels, which, though small,
are numerous, and the perpetual operation
of which produces effects which cannot be
Greater distance   disregarded.  The greater the distance bethe shocks, &c. theless  tween the axles, while the length of the body
remains the same, the less is the influence
Therefore, axles  of these shocks or concussions; and this has
placed at or near the                           
ends.           led, in many instances, to the placing them,
in passenger cars, at or near their extreme
Compromise, the   ends.  Now, however, a compromise is most
result.          commonly made between the evils resulting
from a considerable separation and a near
approach, as, by the modes of construction
now in use, one of the advantages must be
sacrificed to the other.
17  But it is not to the lateral curvatures and
inequalities of the road alone, that the foreIncessant vertical  going remarks apply.  The incessant vibravibrations to be con-  tion felt in traveling  over a rail-road is
sidered.        lmainly dependent upon the vertical motion
of the cars, in surmounting those numerous
though minute obstructions which unavoidThe nearer the axles  ably exist.  The nearer the axles are placed
the greater the effect
of the vertical motion  to each other, the greater is the effect of
on passengers.   this motion upon the passengers, and the
greater its power to derange the machinery
Important to find   and the road.  It becomes very important,
a mode of combining, 
advantages of near  therefore,  both as regards comfort, safety
and remote coupling,  and economy, to devise a mode of combining
sofeyj and ecozomy.  the advantages derived fiom  placing the
axles at a considerable distance apart, with
those of allowing them to be situated near
to each other.
Use of cone attempt- 18  It has been attempted, and with some suced, to keep flanch
from rail.       cess, to correct the tendency of the fianches
to come into contact with the rails on curved
and other parts of the road, by making the
tread of the wheel conical; and, if the traveling upon rail-roads was not required to
Would do at slow   be very rapid, this would so far prove an
speed,           effectual corrective, as the two rails would
find diameters upon the wheels which would




SPECIFICATION. 7
correspond with the difference in length,
the constant tendency to deviation being as
constantly counteracted by this construction;
but at high velocities, the momentum of the   but not at high velocbody in motion tends so powerfully to carry 19 tie, 
it in a right line, as to cause the wheel on
the longer rail to ascend considerably above
that part of the cone which corresponds
therewith.  The consequence of this is a    Serpentine motion
continued  serpentine motion, principally,   peed, oith  ccurved andt high
but not entirely, in a lateral direction; nor   straight parts;
is this confined to the curved parts of the
road, but it exists to an equal or greater extent upon those which are straight, especially when the axles are near to each other,
the irregularities before spoken of constant-  and why.
ly changing the direct course of the wheels,
whilst there is no general curvature of the
rails to counteract it.  To avoid this effect,    To avoid this, a moand the unpleasant motion and tendency to  tive forremote axles
derangement consequent upon it, an additional motive is furnished for placing the
axles at a considerable distance apart.
The object of my invention is, among20 Objectofinvention.
other things, to make such an adjustment or
arrangement of the wheels and axles, as
shall cause the body of the car or carriage
to pursue a more smooth, even, direct and    To produce a more
safe course than it does as cars are ordinari-  smoot', easy, direct
and safe course, on
ly constructed, both over the curved and   curved and straight
-@~ ~ ~~~~~~~ 1., 1  1,.  parts, by near and
straight parts of the road, by the before-  distant coupling.
mentioned  desideratum  of combining the
advantages of the near and distant coupling
of the axles and other means to be hereinafter described.
For this purpose, I construct two bearing 21 Construction- two
carriages, each with four wheels, which are   bearing carriages
to sustain the body of the passenger or
other car, by placing one of them at or near
each end of it, in a way to be presently described.  The two wheels On either side of   Wheels "very near;"
these carriages are to be placed very near
to each other; the spaces between their,need benofurther
flanges need be no greater than is necessary  thian to keep flanges
to prevent their contact with each other.  fomcontact.




8                        SPECIFICATION.
Spring connection-   These wheels I connect together by means
double usual strength,
of a very strong spring-say double the
usual strength employed for ordinary carsthe ends of which springs are bolted, or
Ends secured to  otherwise secured, to the upper sides of the
boxes.        22 boxes, which rest on the journals of the:Long leaes down.  axles; the longer leaves  of the springs
being placed downwards, and surmounted
Two pairs of wheels  by the shorter leaves.   Having thus conunited, make bearing carriage.    nemted two pairs of wheels togethlr, I unite
them into a four-wheel bearing carriage, by
Bolster.        means of their axles and a bolster of the
proper length, extending across between the
two pairs of wheels, from the centre of one
spring to that of the other, and securely
Strength of bolster.  fastened to the tops of them.  This bolster
must be of sufficient strength to bear a load
uponl its centre of four or five tons.  Upon
Second bolster.    this first bolster I place another of equal
strength, and connect the two together by a
Centre pin.     centre pin or bolt, passing down through
Swiveling, as in  them, and thus allowing them  to swivel or
common road wagon.  turn upon each other in the'manner of the
front bolster of a common road wagon.  I
prefer making these bolsters of wrought or
cast iron; wood, however, may be used.  I
Both bearing carriages prepared in   prepare each of the bearing carriages in
same way.        precisely the same way.
Body double the 23   The body of the passenger or other car I
ordinary length and
capacity.        make of double the ordinary length of those
which run on four wheels, and capable of
carrying double their load.
PRest on upper bol-  This body I place so as to rest its whole
weight upon the two upper bolsters of the
two before-rentioned bearing  carriages or
Sometimes all the  running gear.  I sometimes place these bolvbody  under the  sters so far within the ends of the body of
the car as to bring all the wheels under' it;
Less strength of  and, in this case, less strength is necessary
body necessary then.  in the car-body than when the bolster is situated at its extreme ends.  In some cases,
however, I place the bolster so far without
Sometimes body  the body of the car, at either end, as to albetween the two sets  low the latter to hang  down between the
of wheels.                               b




SPECIFICATION.                      9
two sets of wheels, or bearing carriages, and
to run, if desired, within a foot of the rails.
When this is done, a strong framle-work 24
projects out from  either end of the car or
carriage body, and rests upon the upper
bolsters of the two bearing carriagesK  This    Advantages of suslast arrangement, by which the body of the   pendingbody,
car is hnung so low down, manifestly affords
a great security to the passengers, exempting them in a great degree from  those accidents to which they:are liable when the load
israised. Several bodies may be connected,    Several bodiesmay
rest on a common
or rest on a common frame, and be support-  frame.
ed on the bearing carriage, in at manner
similar to that of a single body.
When the bolsters of the bearing car-25 nolsters at extreme
riages are placed under the extreme ends of  fedshgrcater relief
the body, the relief from shocks and concussions, and friom lateral vibrations, is greater
than it is when the bolsters are placed between the middle and the ends of the body;
and this relief is not materially varied by    This not materially
increasing or ditminishing the length of the  tvarih lengtof body,
body, while the extreme ends of it continue   tle bters at exto rest on the bolsters of the bearing cars,
the load being supposed to be equally distributed over the entire length of the body.
Although I prefer the use of a single spring 26 single spring preto a pair of wheels as above described, in-  ferred
stead of the ordinary spring to each wheel,
and consider it as more simple, cheap and
convenient, than any other arrangement;
the end which I have in view  may, never-    Yet end obtained
theless, be obtained by constructing the           cmrriagon bearideg
bearing carria'ges in any of the modes usu-  fore and hind wheels
ally practised, provided that the fore and
hind wheels of each of themn be placed very
near together; because the closeness of the    Closeness of wheels
fore and hind wheels of each bearing carriage, taken in  connection with the use
of two bearing carriages coupled remotely    Carriages coupled
from each other as can conveniently' be done,  remotly, in tview of
for the support of one body, with a view to
the objects and on the principles herein set27 most important foaforth, is considered by me as a most import- ure.




110                     SPECIICATION.
ant feature of my invention; for, by the
Contiguity of fore  contiguity of the fore and hind wheels of
and hind wheels,
while bearing car-  each bearing carriage, while the two bearing
riages any desirable c
driages ance apart.   carriages may be at any desirable distance
Lateral friction   apart, the lateral friction from  the rubbing
of the flanches against the rails is most effectually avoided, whilst, at the same time,
Advantages of  all the advantages attendant upon placing
far apart axles obtained.         the axles of a four-wheeled car far apart,
are thus obtained.
Bearing on centre 28  The bearing of the load on the centre
of bolster affords relief from shocks, &c.  of the bolster, which also is the centre of
each bearing carriage, likewise affords great
relief from the shocks occasioned by the percussions of the wheels on protuberant parts
of the rails, or other objects, and fiom the
vibrations consequent to the use of coned
wheels; as the lateral and vertical movements of the body of the car, resulting from
the above causes are much diminished. The
Two wheels, from   two wheels on either side of one of the bearproximity,considered
as acting like a single  ing carriages may, from their proximity, be
wheel.           considered as acting like a single wheel; and
Bearing carriages  as these two bearing  carriages may be
apart,  consistently 
with strength of body.  placed at any distance from each other, consistent with the required strength of the
body of the car, it is evident that all the
advantage is obtained which results from
having the two axles of a four-wheeled car
at a distance from each other, whilst its inconveniences are avoided.
Advantage.    29   Another advantage of this car compared
with those in common use, and which is
Safety of passen-  viewed by me as very important, is the ingers.            creased safety afforded by it to passengers;
Less liability to  not only from  the diminished liability to
breakage.        breakage, or derangement in the framework, but also from the less disastrous consequences  to  be  apprehended  from  the
breaking of a wheel, axle, or other part of
the running gear, as the car-body depends,
for its support and safety, upon a greater
number of wheels, and bearing points on
the road.
Disclaimer.    30   I do not claim, as my invention, the run



RECORDING ANEW OF PATENT.            1l
ning of cars or carriages upon eight wheels,
this having been previously done; not, however, in the manner or for the purposes
herein described, but merely with a view
of distributing the weight carried, more
evenly upon a rail, or other road, and for
objects distinct in character from those which
I have had in view, as hereinbefore set forth.
Nor have the wheels, when thus increased
in number, been so arranged and connected
with each other, either by design or accident
as to accomplish this purpose.
What I claim, therefore, as my invention, 31 claim.
and for which I ask a patent, is the beforedescribed manner of arranging and connecting the eight wheels, which constitute the    Connection itho  a
rail-road car.
two bearing carriages, with a rail-road car,
so as to accomplish the end proposed by the
means set forth, or by any others which are
analogous and dependent upon the same
principles.
ROSS WINANS.
G. BROWN,            Witnesses.
JNO. H. B. LATROBE,
(RECORDING ANiEW OF THE PATENT.)
Patent Office. Received 7 June, 1837, and recorded anew
in this Office.
H. L. ELLSWORTH,
Comrnissioner of Patents.
Patent Office, Dec. 28, 1854. Received, Dec. 21, 1854,
and, on account of alleged errors in the record, recorded again.
C. MASON,
Commissioner of Patents.




12             RESTORATION OF DRAWINGS.
(RESTORATION OF THE DRAWINGS OF THE PATENT.)
References to the annexed drawings of Ross Winans' improvement in the construction of cars or carriages intended
to run on rail-roads, for which letters patent were issued,
dated October 1st, 1834:
Fig. 1.-Side view of an eight-wheel car.
Fig. 2.-End view of the same.
Fig. 3.-Upper and lower bolster detached from the body
and bearing carriage.
AA. represents the body of the car resting on the bearing carriages B. and C., as exhibited at DID., on pivots equidistant froml the wheels of each bearing carriage.
HI. represents an upper bolster of cast-iron, separate from
the body of the car, with its pivot X. corresponding with the
socket Y. in the lower bolster. E., also shown as separate
from the bearing carriage.
State of Afaryland, Bcaltimore Citig, ss:-On this nineteenth
day of November, in the year eighteen hundred and thirtyeight, before me, the subscriber, a justice of the peace of
the said State, in and for the said city, personally appeared
Ross Winans, and made solemn oath that he is the inventor
of an improvement in the construction of cars or carriages
intended to run on rail-roads, for which letters patent of the
United States were granted to him, dated the first day of
October, 1834, and that the annexed drawing is, as he verily
believes, a true delineation of the invention, as described in
the said letters patent.
Sworn before
JAMES BLAIR, Justice of Peace.
(EXTENSION OF THE PEATENT.)
In the matter of the applicationA
of Ross Winans for an extension of his patent for improvenMents in rail-road. cars and
carriages, dated October 1st,
1834.
The third Monday in September, 1848, (25th,) having been
appointed for hearing the application of the said Ross




EXTENSION.                   13
Winans, the undersigned, agreeably to published notice, and
after examining the evidence adduced by the petitioner,
decided that said patent ought to be extended.
H. H. SYLVESTER,
Actintg Comnn'r of Patents.
Sept. 25, 1848. The petition and testimony of the said
Ross Winans having been fully examined, it is ordered that
his patent be extended.
HI.. SYLVESTER,
Act'g Comb'r
Whereas, upon the petition of Ross Winans, of Baltimore,
Md., for an extension of the within patent, granted to the
said Ross Winans on the first day of October, 1834, the
undersigned, Acting Commissioner of Patents, under the 18th
section of the Act of Congress, approved the 4th day of July,
1836, entitled "An act to promote the progress of the useful
arts, to repeal all acts heretofore made for that purpose,"
and the act approved 27th May, 1848, entitled'"An act to
provide additional examiners in the Patent Office, and for
other purposes," did, on the 25th day of September, 1848,
certify that said patent ought to be extended:
Now, therefore, I, Henry HI. Sylvester, Acting Commissioner of Patents, by virtue of the power vested in me by
said acts of Congress, do renew and extend said Patent, and.certify that the same is hereby extended for the term of
seven years, from and after the expiration of the first term,
viz., the first day of October, 1848, which certificate, on the
petition of the applicant, together with this certificate of the
Acting Commissioner of Patents, having been duly entered
of record in the Patent Office, the said patent now has the
same effect in law as though the same had been originally
granted for the term of twenty-one years.
In testimony whereof, I have caused the seal of the Patent
Office to be hereunto affixed, this twenty-fifth day of September, in the year of our Lord one thousand eight hundred and
forty-eight, and of the Independence of the United States
the seventy-third.
[L. s.]        HENRY H. SYLVESTER,
Acting Coomn'r Patents.




1.4            JUDGE CONIKLING'S CHARGE.
In June, 1850, an action at law, brought by Ross Winans
against The Schenectady and Troy Rail-Road Company, in
the Circuit Court of the United States for the Northern District of New-York, for an infringement of the foregoing
Letters Patent, was tried before his Honor Judge CONKLING
and a jury, at Canandaigua. The jury, under the following
charge from the Court, rendered a verdict for the plaintiff:
JUDGE CONKLING'S CHARGE.
This trial, gentlemen, has been so deliberately conducted,
and the whole merits of the case have been so fully investigated, that I shall endeavor not to detain you very long in
summing it up. This suit is brought to recover damages for
the alleged violation of the right claimed by the plaintiff in
virtue of Letters Patent granted to him on the first day of
October, 1834, and subsequently extended. The plaintiff's
right to maintain his action depends on the answers to be
given to the two general questions-first, whether he has
a good patent; and, if so, secondly, whether it has been
infringed by the defendants. To enable you to decide these
questions, it is indispensably necessary that you should have
a clear conception of the thing of which the plaintiff claims
to be the inventor; and this is to be ascertained from the
description which he has himself given of it. The law requires every applicant for a patent, to accompany his application with a full, clear and exact description of his supposed
invention; and it is to' this description, thus furnished by
the plaintiff, that resort must be had to ascertain the nature
and extent of his invention. This question must of course
arise in every case of this nature, and it is often one of no
little difficulty, especially in a case like the present, where
the invention consists in an alleged improvement in a thing
already in use; because the party is obliged to distinguish
between what is old and what he claims as his invention,
and this is often very imperfectly done. But the present
case does not appear to me to involve any serious difficulty
in this respect. The specification is drawn with great precision and perspicuity. Indeed, I do not remember ever to
have seen a specification expressed in clearer or more appropriate terms.  It is very easy, therefore, at least to understand what the patentee designed to say. He describes the
carriages then already in use, and the practical difficulties
resulting from the form and manner of their construction.
He then proceeds to state in what respects and in what




JUDGE CONIKLING'S CHARGE.            15
manner he has altered them for the purpose of obviating
these difficulties, and it is the means resorted to by him for
this purpose, that he claims as his invention and improvement.
These carriages had four wheels arranged in pairs, each pair
having a fixed axle; and he shows the disadvantages attending the use of such carriages, especially on roads having
curves of so short a radius as many of them in this country
have. "' The object of my invention," he says, " is, among
other things, to make such an adjustment or arrangement of
the wheels and axles as shall cause the body of the car or
carriage to pursue a more smooth, even, direct and safe
course than it does as cars are ordinarily constructed, both
over the curved and straight parts of the road, by the beforementioned desideratum of combining the advantages of the
near and distant coupling of the axles, and other means to be
hereinafter described." This is the object of the plaintiff's
invention, as stated by him. He then goes on to describe
the means he has invented to effect the object he has specified; and here, again, I will read to you his own language:
" For this purpose," says he,' I construct two bearing carriages, each with four wheels, which are to sustain the body
of the passenger or other car, by placing one of them at or
near each end of it, in a way to be presently described. The
two wheels on either side of these carriages are to be placed
very near to each other; the spaces between theirsflanges
need be no greater than is necessary to prevent their contact
with each other. These wheels I connect together by means
of a very strong spring —say double the usual strength employed for ordinary cars-the ends of which springs are bolted,
or otherwise secured to the upper sides of the boxes which rest
on the journals of the axles, the longer leaves of the springs
being placed downwards, and surmounted by the shorter
leaves. Having thus connected two pairs of wheels together,
I unite them into a four wheel bearing carriage, by means of
their axles and a bolster of the proper length, extending
across between the two pairs of wheels, from the centre of
one spring to that of the other, and securely fastened to the
tops of them. This bolster must be of sufficient strength to
bear a load upon its centre of four or five tons. Upon this
first bolster I place another of equal strength, and connect
the two together by a centre pin or bolt passing down
through them, and thus allowing them to swivel or turn
upon each other, in the manner of a front bolster of a common road wagon. I prefer making these bolsters of wrought
or cast iron; wood, however, may be used. I prepare each




16             JUDGE CONKLING'S CHARGE.
of the bearing carriages in precisely the same way. The
body of the passenger or other car, I make of double the
ordinary length of those which run on four wheels, and capable of carrying double their load. This body I place so as
to rest its whole weight upon the two upper bolsters of the
two before-mentioned bearing carriages or running gear. I
sometimes place these bolsters so far within the ends of the
body of the car as to bring all the wheels under it; and in
this case, less strength is necessary in the car body, than
when the bolster is situated at its extreme ends. In some
cases, however, I place the bolster so far without the body
of the car, at either end, as to allow the latter to hang down
between the two sets of wheels or bearing carriages, and to
run, if desired, within a foot of the rails."
He then goes on to speak of some particular features of
his invention, and finally he states explicitly, in a summary
at the end of the specification, what he claims, and what he
does not claim, as follows:-" I do not claim, as my invention, the running of cars or carriages upon eight wheels,
this having been previously done; not, however, in the manner or for the purposes herein described, but merely with a
view of distributing the weight carriedl, more evenly upon a
rail or other road, and for objects distinct in character from
those which I have had in view, as hereinbefore set forth.
Nor have the wheels, when thus increased in number, been so
arranged and connected with each other, either by design or
accident, as to accomplish this purpose. What I claim, therefore, as my invention, and for which I ask a Patent, is the
before described manner of arranging and connecting the
eight wheels, which constitute the two bearing carriages,
with a rail-road car, so as to accomplish the end proposed
by the means set forth, or by any others which are analogous
and dependent upon the same principles."
This, then, is the improvement of which the plaintiff
claims to be the inventor. I do not know that I can give
you a more clear idea of it than has been given you by
the reading of it. You have heard read, in the course of
the trial, the instruction given, on a trial at Baltimore, by
the Chief Justice of the United States, as to the claim of the
patent; and that instruction, which seems to me to be entirely proper, and which I desire to be considered as adopting, is couched almost wholly in the very language of the




JUDGE CONKLING IS CHARGE.             ]7
specification.:+   It is, then, the improvement which he thus
describes, of which the patentee claims to be the inventor.
The next question, gentlemen, is whether the plaintiff has
given a sufficient description of his invention. A patentee
is bound to give all the information necessary to the successful use of the invention. It is denied by the defendants that'the plaintiff has complied with this condition, and they insist that the patent is therefore void.  It is, among other
things, insisted by the defendants' counsel, that the plaintiff
ought to have specified the distance at which the trucks are
to be placed from  each other, and that he has not done so.
This objection relates to an important part of his invention,
and the successful use of it depends upon the arrangement of
the wheels and trucks. The two pairs of wheels in each
truck  must be near together, and the trucks remote from
each other. The plaintiff was, therefore, bound to give instructions as to the location of the wheels and trucks.
It is also said that he has given no directions as to the
length of the body of the car; but he says that the body admits of indefinite extension, and in that he considers the
value of his invention to consist. Its length, therefore, is
left to be determined  by  choice and  circumstances.   -le
could not specify the particular number of feet between the
trucks, and it appears to me that he has specified with sufficient exactness the part of the carriage where the trucks
are to be placed.  He says they are to be placed at or near
the end of the car; sometimes, he says, he places them  just
under the  end, and at others just without the end.  They
- The instruction referred to was given by Chief Justice TANEY to the jury,
on the trial of the case of Ross Winans vs. The Newcastle and Frenchtown
Rail-Road Company, at Baltimore, in 1839, and was as follows:
"According to the true construction of the plaintiff's patent, he claims to be
the first inventor of a car with eight wheels, arranged and connected in the
manner, and acting upon the principles stated in his specification, the object of
which is to make such an adjustment or arrangement of the wheels and axles,
as shall cause the body of the car to pursue a more smooth, even, direct and
safe course, both over the curved and straight parts of a rail-road. He does
not claim to be the inventor of the eight wheel car; nor does he claim to be
the discoverer of the effect produced by the near and the more remote position
of the wheels of an ordinary four wheeled rail-road car. Neither does he claim
to be the inventor of a car-body, either for burden or for passengers, of a new
or peculiar construction; nor of any new manner of fixing the car to the steam.
engine, or other power by which it is to be drawn along the road. But he
claims as his invention, the manner of arranging and connecting the eight
wheels, as specified in his patent, for the end above mentioned; and, also, the
connection of a rail-road carriage-body with them, adapted either to the transportation of merchandise or of passengers."
2




18             JUDGE CONKLING'S CHARGE.
must, therefore, be placed near the ends of the car, or, in
other words, as far apart as the length of the carriage will
conveniently admit. It is very true that a patentee is bound
to give full ififormation to the public as to the manner of
carrying out his invention, but he is not bound to inform
the public of more than he knows. It is said to be at present
the practice to place the trucks a little further under the
carriage, but it is proper to consider the circumstances under
which the plaintiff made his invention, if such it be. At
that time there was only one short rail-road, the Mlohawk
and HIudson, in full operation, with portions of some others.
It was then that he commenced the invention of a better
car, and, in applying for a patent, he could only be required
to inform the public of all that he had then ascertained;
and, though the carriage may have been improved by others,
this constitutes no valid objection to his patent, if the thing
he has invented was new and useful, and he has in good
faith disclosed it to the public. A patent is none the less
valid because a better thing has been subsequently invented.
So far as I can discern, there is not the slightest reason to
suppose that the patentee has designedly kept back any
thing known to himself which the public had an interest in
knowing.
It is said, moreover, that the plaintiff has not indicated in
his specification the point or part of the car at which the
motive power is to be applied, and that at the same time it
is here insisted by his counsel, that in order to the beneficial
working of his invention, it is highly important that this
power should be applied directly to the body of the car, instead of to the truck, to which it appears to have been uniformly attached before his invention. If it had been shown
by proof that the patentee had discovered that this change
was beneficial, and had concealed the fact, it may be conceded that this would have been sufficient to invalidate his
patent. It is true that he has not stated in his written specification where the motive power is to be attached. But
this is one of those cases in which the inventor is not only
permitted, but required by law to accompany his application
with a drawing explanatory of his invention. This drawing
is to be accompanied with written references. There may be
cases in which it would be better, perhaps necessary, to incorporate these references in the written specification; but
the law does not require this to be done, provided the description and drawing can be rendered sufficiently intelligible without. The plaintiff has furnished a drawing, with




JUDGE CONKLING S CHARGE.              19
written references on the same paper, and the witnesses tell
us, as indeed we see to be the fact, that the drawing clearly
indicates the point of traction. The drawing, therefore, is
none the less efficacious for not being referred to in the
writing. Being deposited along with the written specification in the patent office, it is equally accessible to the public.
It is a part of tile specification, and if it is intelligible, that is
sufficient to satisfy the requirements of the statute. If, indeed, the infringement complained of had consisted in the
use by the defendants of this new mode of traction, the
action, I think, could not be maintainedl; for I am of opinion
that, according to the true construction of the specification,
the plaintiff's claim does not extend to this mode of coupling,
it not being mentioned at all in the written specification;
and, his claim  being  " the before described manner of
arranging and connecting the eight wheels," &c., he has
limited himself to what he had before described.  Nor
do I understand him  now  to claim  any thing  beyond
this. But what the plaintiff complains of is, the use by defendants of his entire railway carriage. The objection to
which I am now directing the attention of the jury, is that
he has not sufficiently described his invention; and, in
answer to the objection, he is entitled, as I have already said,
to point to this drawing.
Again, it is said that the patentee has omitted to describe
side bearings; that the provision made by him, as represented
by his drawing, is insufficient for this purpose; that a carriage constructed according to his drawing would be unsafe
and therefore useless; and that his patent is therefore void.
This question depends upon the drawing. There seemed at
first to be some diversity of opinion among the witnesses as
to whether the bolsters, shown in the drawing, camne in contact with each other, except at the centre, but it appeared to
be finally agreed, that there is a bearing shown on each side
of the centre pin, though the witnesses are not perfectly
agreed as to the extent of the bearing. Mr. Pond applied
his rule to the drawing, and, by the aid of the scale from.
which the drawing was made, stated the bearing to be about
sixteen inches on each side, while some other witnesses made
it less. It is testified, however, that a large number of cars
were made for the Baltimore and Ohio Railway according
to this specification, and with this extent of bearing, that
they were successful, and that they have been in use ever
since. Mr. Glenn says that they are made in that way still.
But, gentlemen, I have already taken occasion to observe




U20             JUDGE CONKLING S CH ARGE.
that a patentee is only bound to disclose all that he has
ascertained. At the time of this invention, rail-road cars
were not run at the speed at which they are now moved,
and if it has been discovered since that the plaintiff's bearings are insufficient for the present rates of speed, that can
be no objection to the patent. The patentee probably had
no idea of the present rates of speed; and what he desired
to invent was something applicable to the rates of speed
then known. Mr. Williams, a very intelligent witness for
the defendants, says that these bearings are not sufficient for
our present rates of speed, but that, in his opinion, they are
sufficient for the rate of fifteen or even twenty miles an
hour; and it is no objection to this patent that the bearings
shown are not sufficient for the rate of forty miles an hour.
The next question, gentlemen, for your consideration, is
whether the plaintiff is indeed the inventor of that which he
claims. This is denied by the defendants. The first evidence
upon this point on the part of the plaintiff, is the patentitself.
The patent is primna facie evidence of the novelty of the
thing claimed, and it is sufficient evidence until the contrary
is shown. And this should be so; for, the patentee, when
he takes out a patent, must describe his invention, and make
oath to it; and moreover, no patent can properly be issued
unless the Commissioner of Patents believes the applicant to
be the true inventor. It is, therefore, right that the mere production of the patent should be sufficient evidence in and of itself, of the novelty of the asserted invention, until it is disproved.
It is, however, the right of the defendant to contest the novelty
of the invention. If he canshow, by a satisfactory preponderance of evidence, that the patentee was not the inventor, then
the patent must fail. I understood it to be suggested by one of'
thecounsel forthe defendants that the patentee was b'ound to
prove, beyond a reasonable doubt, that he was the inventor.
This is certainly a great mistake. On the contrary, it is the defendants who are bound to prove to your satisfaction that the plaintiff was not the inventor. The defendants hold the affirinative,
and must maintain their allegation by a preponderance of evidence.
Whenever a plaintiff receives notice of a defence on the
ground of a want of novelty in the invention, he mary, upon
the trial, after producing his patent, either rest his evidence
on the point of invention, or he may anticipate the defence
and endeavor, by additional evidence, to fortify his case in the
first instance. The plaintiff here, has adopted this latter
course, and has given the history of his alleged invention.
On his return from England, in June, 1830, he entered into




JUDGE CONKLING'S CHAIGE.            21
the service of the Baltimore and Ohio Rail-Road Company,
having been engaged by the Chief Engineer, with the approbation of the directors, as his assistant. I-Ie entered into a
contract with the Company, to give them the benefit of his
talents, in preparing for the successful operation of their
road. They were to pay him a specified salary, and allow
him the use of their workshops and tools, and of their road,
for the purpose of making experiments, and it was agreed
that they should be entitled to the use of what he invented;
but there was nothing in that agreement which could deprive
him of the right to a patent for his invention. In pursuance
of this agreement, as the plaintiff alleges, the passenger car
Columbus was constructed., He insists that he was the inventor of it, and that it was built under his directions. To
establish this, he has introduced the depositions of Mr. Thomas,
the President of this company, Mr. Brown, the Treasurer,
Mr. Knight, the Chief Engineer, Mr. Elgar, an Assistant Engineer, and Air. Latrobe, the Counsel. These gentlemen
were intimately connected with the road and strongly interested in knowing every thing that went on. They all concur
in saying that Mr. Winans devised the Columbus.
We then have the drawing which has been produced by
Mr. Cromwell. HIe and Mr. Glenn testify that they assisted
in making this very car, and that the drawing was made by
Mr. Winans, and furnished by him for the purpose of having
a car built in conformity to it. They also testify that the
draft of the running gear was copied from this drawing,
upon a board, to work from, and ]Mr. Glenn states that this
was done by Mr. Gatch, in the shop, upon a bench within
two feet of where he, Glenn, was working. We then have a
description *of the progress of the work, and the concurrent
testimony of all the persons connected with it, except Gatch,
ascribes the invention to Mr. Winans. But Mr. Gatch, in his
deposition, says that he believes himself to have been the
contriver of this carriage. He was the foreman of the shop
where it was made, and says that according to his recollection the drawing furnished by Mr. Winans represented only
the body of the carriage, and that the drawing of the trucks
on the board, was his own original work. This diversity of
recollection is somewhat remnarkable, and it may not be easy
to account for it. The explanation suggested by one of the
counsel for the plaintiff is, that Gatch having been engaged
in the construction of the car, and having thus at once
become familiar with all its parts, which after all are few and
simple, may have erroneously imagined that it was his own




22              JUDGE CONKLING'S CHARGE.
invention. But it vill be for you, gentlemen, to say how the
fact is, and whether the recollection of Mr. Gatch ought to
prevail against that of all the witnesses officially connected
with the road, whom I have named. You will bear inll mind
also that it was the especial duty of Mr. Winans to direct his
attention to improvements of this nature, and that this was
no part of the duty of Mr. Gatch, whose business it was to
see that the mechanical work committed to his charge, as
foreman, was done, and to labor upon it himself.
It appears from the drawing of the Columbus, and from
the evidence, that the trucks were placed at a considerable
distance from the ends of the body of the carriage, and that
the wheels composing the trucks were placed much further
apart than in the car described in the patent; that the
power was attached to the truck instead of the body; and
that the axles ran in friction boxes. The Columbus was put
into use late in June or early in July, 1831, when a trial
trip was made with it to Ellicott's Mills. The witnesses say
that it was used with horse power, that it did not worlk well,
and was not satisfactory, and that it sometimes ran off the
track. Other eight-wheel cars were subsequently built, but
none until 1833. Little seems to have been at that time done
upon the road, and but few cars to have been needed. The
witnesses say that the Columbus was used only occasionally;
that Mr. Winans was not satisfied with it; and that he subseqtient-ly caused the Winchester, the Dromedary and the
Comet to be constructed. The precise date of the construction of these does not appear; but the Winchester seems to
have been made in 1833, and the Dromedary and Comet
early in 1834. The witnesses give the same account of these
as of the Columbus-that they did not work well, were unsatisfactory, and there was a desire to get something better.
In October, 1834, the carriage described in the patent is
stated by the witnesses to have been devised by Mlr. Winans,
and to have been formally adopted by the company; and directions were then or soon after given obr making a considerable
number. They were made during the fall and succeeding
winter, and in the spring of 1835 were put on the Washington Branch. All the witnesses represent Winans as engaged
in devising a suitable car, and, with the exception of tMr.
Gatch, represent him as the original and only inventor. This
is the evidence on the point of novelty, given by the plaintiff
in addition to his patent.
On the part of the defendants, however, it is insisted that
carriages substantially like that in question were previously




JUDGE CONKLING' S CHARGE.             23
described in certain public works; and, to establish this, they
produce two English books —Wood on Rail-Roads, published
in 1825, and a volume of the Repertory of Arts, published in
1814. The latter reference is to the steam  carriage of the
Messrs. Chapman, patented in 1812, in England. They insist that each of these contains a description and drawing of
what is substantially like the rail-road car which the plaintiff
has patented. I shall not enter into a detailed explanation
of the drawings and descriptions contained in these books,
nor recapitulate the views and arguments concerning them,
which have been so elaborately presented to your consideration by the counsel on the one side and the other, but shall
content myself with calling your attention, presently, to some
principles of law applicable to the subject.
Before doing so, however, it is proper also to remind you,
that in addition to what appears in these English works, it is
insisted that the whole of the plaintiff's invention is to be
found in a carriage invented by Ephraim -Morris, in 1829,
for the purpose of conveying boats from one level to another
on the Morris Canal —thereby dispensing with the use of
locks for that purpose. A model of this carriage has been
produced, and the patentee himself has been brought as a
witness. I-Ie is of opinion, it seems, that his car is the same
in principle as that of the plaintiff. I have little to observe
concerning it. It seems to me, I confess, to be rather a far
fetched thing, neither designed nor adapted for any such
purpose as the plaintiff's car. It was made to surmount a
series of vertical angles, formed by successive inclined planes,
and it is therefore provided with several four-wheeled trucks,
the wheels of which, on each side, rise or fall alternately, so
as to adapt them to the support of the carriage on the varying planes which it had to encounter in its progress. But it
is very clear that there is nothing in this arrangement to fit
it for use on a curved rail-road. 3[Mr. Morris had, in its invention, no view to the objects which governed the patentee
in this case, and consequently his carriage looks like a different thing from the plaintiff's. But, gentlemen, the question
of its substantial identity is a question of fact, and it is for
you to decide it.
It is shown, also, that before the construction of the Columrnbus, a timber car on eight wheels was used on the Baltimore
and Ohio Rail-Road. Two common earth or stone cars, each
with four wheels, at a considerable distance apart, were
attached together by a reach, for the purpose of transporting
long timber. To avoid the difficulty of turning the curves,




24              JUDGE CONKLING'S CHARGE.
a bolster was put upon each car, and a centre pin through
the middle of each bolster, and on these bolsters the timber
was placed.  The power was applied to the truck, there
being, indeed, no other place to apply it; and it has been
testified and explained by the witnesses, that although these
movable bolsters would facilitate the passage of this vehicle
around curves, the loading would nevertheless crowd and
slide upon them. It is denied also, by the plaintiff's counsel,
that this timber carriage can properly be regarded as an
organized vehicle, being made up for temporary use, of parts
designed to be and generally separately used, and for other
purposes, and that it is idle to pretend that it is like the
passenger car described in the patent. Of this, you are to
judge.
It is further alleged by the defendants, that the Experiment and John Bull locomotives, each with a single truck
under the forward end, and the timber car used by Mr.
Williams on the Miohawk and Hudson Rail-Road, were substantially the same thing as the plaintiff's car. But these things
were all introduced in 1832, and although before the date of
the patent, were subsequent to the construction of the Columbus. The plaintiff shows that whatever these things contained which is embraced in his patent, was contained also
in the Columbus. He insists, therefore, that he is in fact
the first inventor of them. If this is so, then they do not
stand in his way.
A great deal has been said in the course of the trial, about
inventive power, and the experts have been asked whether
the differences between the plaintiff's car and those things
which preceded it, required the exercise of the inventive
faculty. On this point, witnesses have been examined on
both sides. The defendants' witnesses say that these prior
inventions were substantially like what the plaintiff has patented, and that it required no genius, after seeing those
things, to construct the plaintiff's car. The experts upon the
other side express a directly opposite opinion. It is probable
that among these gentlemen, there is really no great diversity
of opinion, but that they attach different meanings to the
words invention and principle, &c., and that both speak truly
according to their conceptions. It is right, in cases like this,
to call experts to give their opinion. Other witnesses speak
as to facts, but here the opinions of persons skilled in the subject matter of the controversy are asked; and I cherish an
habitual respect for the opinions of learned men, thoroughly
skilled in a subject on which they are called to speak. But




JUDGE CONKLING'S  CHARGE.            25
unfortunately, they give opposite answers to the same question; and where, as is very apt to be the case in patent
causes, about the same number of experts is called on each
side, the case may be left where it would have stood, if they
had not been called at all, and the jury are in the end
obliged to rely on their own judgments in deciding upon the
question on which the experts have given their opinions.
Not that evidence of this, nature is to be rejected, because
it is conflicting; but the jury are to determine for themselves
upon the weight which ought to be given to it, upon the one
side and the other. And fobr this purpose it is the duty of the
jury in these, as in all other cases, to observe the demeanor
of the witnesses under oath, and to observe whether they testify deliberately and with proper reflection, and whether they
appear to understand the subject well, and to give such weight
to the evidence of each as it shall appear to deserve.
But it is important, gentlemen, that you should understand
the precise nature of this objection, of the want of novelty in
the invention. It is not pretended that any other person previously invented a rail-road passenger carriage like the
plaintiff's. All that is insisted is, that the thing which was
before in use for other purposes were so nearly like this, that
there is no merit in the plaintiffs invention which entitles
him to a patent. The objection is, that he has, at least, but
applied an old thing to a new use. The mere application of
an old thingo to another use, is not the subject of a patent, if
it be only to what the law denominates an " anacogoa6s" use.
Thus, it has been said, that after the invention of a spoon for
the purpose of eating soup, a patent cannot be obtained for
the discovery that it can be conveniently used also in eating
peas. Nor could there be a valid patent for the use of a
coffee mill in grinding pepper. In such cases, no ingenuity
at all is required to discern the applicability of the old implementeto thenew use. Itis a mere dictate of common sense.
But it is a mistake to suppose that the right to a patent
depends on the amount of ingenuity, thought, skill or experiment which has led to the invention. Invention means
to find out; and it is no matter how the thing is found out.
A mere lucky thought nuay give a man a right to a patent,
provided it be of something new and useful. Very often, a
man, in trying to find out one thing, finds out another; and
yet, though his discovery be not the effect of design, but of
mrere chance, he is not on this account the less entitled to a
patent for it. It is a mistake, therefore, to suppose that, to
render an invention patentable, it must appear to have been




26             JUDGE CONKLING'S CHARGE.
the fruit of extraordinary genius or talent, or laborious
study. It is no matter how simple the thing is. Some of
the most important improvements in the history of human
progress have been exceedingly simple, or at least now appear so. And there is always danger of doing injustice in
estimating the merit of inventions; because, when we have
become familiar with an invention, it may appear to have
been very easy, when in truth it was far otherwise. One
part of the evidence in the present case will serve to illustrate
this. I allude to the deposition of Mr. Jervis, one of the defendants' witnesses. The effect of it is, to show that he devoted a great deal of time and thought before he succeeded
in applying the four wheel truck usefully to the locomotive
engine. Mr. Jervis is conceded to be a man of high endowments, and of great eminence as a Civil Engineer. I will
read to you his account of the introduction and improvement
of the engine on the Mohawk and Hludson Rail-Road. " I
have paid," he says, "'a great deal of attention, since I have
been connected with rail-roads, to the construction of locomotives and cars. I have a good deal of knowledge of the
principle upon which the running part of a locomotive and
cars which are now used, and which have been in use since
I have been engaged in my profession, have. been constructed
and used. My attention has been particularly directed to
the subject of the arrangement of the wheels of locomotives
and cars, to facilitate the running of locomotives and cars on
curves. My attention was very early directed to that subject. It was a subject on which I had often thought a great
deal, but made no experiments until 1831. In 1831, and
early in 1832, I was very much engaged in devising some
means by which four wheels could be substituted for two, as
the leading wheels of the locomotive, and finally prepared a
plan by which the forward end of a locomotive was supported by a sort of independent carriage, consisting of four
wheels. These wheels were placed near to each other, and
working under the main frame of the engine, which rested
mainly on the outside timbers, on friction rollers, supported
in its lateral position on the frame of the independent carriage
by a centre pin; and this independent carriage being a substitute for the two wheels formerly used."  Mr. Jervis, you
will see, here represents himself to have been, as he doubtless was, an original inventor or contriver of the great improvement which he thus describes. But this was the year
after Mr. Winans made a like application of four-wheeled
trucks to the Columbus, and about the time of a similar im



JUDGE CONKLING'S CHAIGE.              27
provement made by him on the locomotive Herald, as testified to by Mr. Alexander. Now, you have seen that both
the carriages described in the English books, to which
I have referred, are locomotives; designed, however, for
purposes very different fiom the transportation of passengers
over long rail-roads. One of them (Chapman's) is exhibited
in the drawing with but six wheels, but the inventor says that
where the load is so heavy that it will injure the road, two
pairs of wheels may be substituted for the single pair of
wheels with fixed axles, and this suggestion is relied on by
the counsel for the defendants to disprove the novelty of the
plaintiff's invention. Now, these books were equally accessible to Mr. Jervis and to Mr. Winans, and, considering their
characters, and the nature of the pursuits of these gentlemen,
it seems not unreasonable to conclude that they were both
acquainted with them. But we see nevertheless, from the
evidence of Mr. Jervis, that it was only after long and laborious study, that he succeeded in making an improvement in
the locomotive corresponding with that which it is insisted
Mr. Winans made in the passenger car. The locomotive in
use on the English railway had one pair of running wheels
on a fixed axle, as the passenger carriages both in England
and those in this country, (then few in number,) had a single
pair of wheels on a fixed axle at each end; and Mr. Jervis,
after the earnest and persevering devotion of his faculties to
the subject, and, as far as we are apprised, with all the lights
possessed by Mr. Winans, at length succeeded in devising
and adapting a four-wheel truck for the support of the forward end of a locomotive, as Mr. Winans did in devising a
like improvement for the support of each end of a passenger
car. Now, with these circumstances before us, I must say
that it seems to me to be requiring a great deal at your hands
to ask you to say that there is no merit in what the plaintiff
claims as his invention. But, gentlemen, it is for you to determine, whether you find in it any thing substantially cdifferent from these other things previously in use. No one, I
believe, pretends that any one of them could be beneficially
used for the conveyance of passengers on railways, without
extensive modifications; but very slight changes of mechanism may sometimes be the subject of a patent. A case which
has given rise to litigation in our own courts, may serve to exemplify this. The patent was for an improvement in the
casting of rollers or cylinders. It was known before, that if
a revolving motion could be given to the molten iron when
poured into the mould, this motion, by force of the centrifu



28              JUDGE CONKLING S CHARGE.
gal tendency thus communicated to the fluid, would produce
the useful effect of throwing the pure iron to the outside,
leaving the dross within; and it had long been desired to
discover a means of producing this revolving motion in casting rollers or cylinders. A workman employed in an iron
foundry at Pittsburgh, discovered that if the melted iron, instead of being poured into the mould in a vertical or horizontal direction, were poured in obliquely, the revolving
motion would be obtained. For this purpose it was only
necessary to change the direction of the tube already in use,
and this is what the man did, and he obtained a patent for
his invention; having thereby produced a new and useful
result. Another illustration by an English judge is this: If
a surgeon goes to a mercer's shop and sees him cutting velvet
or silk with a pair of scissors, and he says, I see how well
your scissors cut, and I can, by putting a knob at the end,
use them instead of a lancet, to cut skin, he might get a
patent for that. The general principle is this, that wherever
a man finds out by accident or design, by much or little
study, a new and substantially useful thingg, and shows how
it may be usefully applied, he is entitled to a patent, and the
question here for you to decide, gentlemen, is, whether the
plaintiff has not done this. It is certainly no insignificant
fact, that carriages like that described by the plaintiff
in his patent, have superseded the kind of vehicle previously used, and are now in universal use in this country.
By means of theim we have been enabled to construct our
roads far more cheaply than we could otherwise do, by admitting curves of comparatively short radii, and yet to run
them at high speed, with long, convenient, safe and strong
carriages. But, gentlemen, the question of fact as to the
novelty of the invention, is one which you are to decide,
and in all that I have said I must not be understood as desiring in any manner to dictate to you the verdict you are
to render on this point.
But it is further argued on the part of the defendants, that
admitting the invention of the plaintiff and its novelty, he
has abandoned it, by suffering it without objection to go into
public use, in the Columbus, the timber cars land the locomotives, and that he cannot now reclain it. If what is asserted as a fact be true, this result will follow as a legal consequence. Thus, for example, assuming that Mr. Jervis
was the first inventor of the improvement described by him,
in the locomotive, not having at the time taken a patent for
it, and having permitted it to become publicly known and




JUDGE CONKLIN G S CHARGE.              2 9
used without objection, he has no longer any right to claim
it as his own exclusive property. The law in this respect is
just, for otherwise the public would be deceived, and the inventor, after first making all the profit from his invention
that he could without a patent, might still secure to himself
its exclusive use  obr fourteen years longer. Does this case
come within the rule, and within the reason of it, and has
there been an abandonment by Mr. Winans of his invention?
The answer given to this objection by the plaintiff is, that
he did not in fact perfect his invention until the fall of 1834.
It is true that the Columbus was built and put into use in
1831; but it is described by the witnesses connected with
the Baltimore and Ohio Road, as imperfect and unsatisfactory; and it is insisted that the whole intermediate period,
until the fall of 1834, was employed by the plaintiff in
making the necessary experiments to perfect it.  It was
during this period that the other three cars were built; and,
considering the importance of the subject, and the natural
anxiety evinced by the gentlemen charged with the interests
of the road, as represented by themselves in their depositions,
this explanation of the delay seems reasonable.  It was not
until the fall of 1834 that a carriage of definite form  and
arrangement was agreed upon, and the application of the
plaintiff for a patent seems to have been simultaneous with
this determination.  N-ow the law allows to an inventor a
reasonable time to make experiments, for the purpose of maturing his invention and ascertaining its practical utility.
The object of the patent law is to benefit the public by
stimulating ingenious men t&c the useful exercise of their inventive faculties; and this object is best attained by allowing them  sufficient time to achieve the highest degree of
success of which they are capable. The law, with certain
limitations, accordingly permits this. If an inventor was requiled to take out a patent, if at all, upon the first occurrence of a thought of something apparently  promising
utility, not only would the policy of the law be obstructed,
but inventors would be harassed and subjected to unnecessary expense. The law, however, requires the inventor to
act in this respect with sincerity, good faith and prudence.
In applying these principles to cases, as they arise, reference
must necessarily be had to the particular circumstances by
which they are characterized. If the invention be of a
nature to admit of the necessary experiments by the inventor in his own house, a more stringent rule may right



30              JUDGE CONKLING'S CHARGE.o
fully be applied to the case, than to one in which such experiments can only be made in public. Such is the nature
of the plaintiff's alleged invention; and he is entitled to a
liberal interpretation of the law of abandonment.  It was
only on the Baltimiore and Ohio Rail-Road, and by the
assistance of many persons, that the reality and utility- of his
supposed invention could be tested; and it was stipulated
between him  and the company, that lie should have the use
of the road for this purlpose.  But it is testified that his
cars did not'work well, and that, from time to time, he
changed their construction, and that finlally, in the fall of
1834-, he completed his invention and obtained his patent.
In short, gentlemen, you are to decide whether, under all
the circumstances of the case, the plaintiff is to be considered
to have dedicated his invention to the public, or to have lost
his right by neglect.  In other words, you are to decide
whether he has not fully and fairly acted up to the spirit of
the lawo  If so, his patent is not invalidated by delaying his
application for it.
Lastly, it is denied by the defendants that they have infringed the plaintiff's rights, admitting the validity of his
patent.  Several witnesses have testified, in general terms,
that the carriages in use on the defendants' road, as well as on
the other rail-roads in this State, are substantially like that
described in the plaintiff's patent; and XIr. Ponci testifies
that he saw cars in use upon the defendants' road, having
certain iron work upon them  made by him for the defendants, while, on the other hand, some of the witnesses for the
defendants have pointed out certain differences between
their carriages and that of whibh the plaintiff claims to be the
inventor. But, gentlemen, this question of infringement is
one upon which you are to forum and express your own judgment. It may not be amiss to observe that it is no reproach
to the defendants, in particular, that they infringe the plaintiff's patent, if they do so, and the plaintiff is not seeking
exemplary damnages from them. It is stated to be his desire
simply to settle his rights, and it is accordingly agreed that
if you find for the plaintiff, the damages shall be assessed at
one hundred dollars.
After concluding his charge, his IHonor, Judge Conkling,
in answer to several prayers for instructions, offered by the
defendants' counsel, further instructed the jury in substance
as follows:
That it was undoubtedly true that a patent could not be




JUDGE CONKLING S CHlARGE.            31
taken merely for a purpose, end or object, but that he
doubted the pertinency of any instruction on that point in
this case, because the patent here was not for a purpose, but
for the means of effecting a purpose.
That the specification was sufficient, if the patentee had
described a carriage susceptible of an attachment of the
power to the body, and if the drawing showed such mode of
attachment, and that the plaintiff suffered no disadvantage
from not stating it in his written specification, and although
the drawing was not to be taken into consideration for the
purpose of measuring the extent of the claim, yet it might
be considered in ascertaining whether what he claimed was
new.
That the patent was valid, if the plaintiff's car was substantially on the whole a new and useful thing.
That if a thing, substantially like the plaintiff's car, had
been described, prior to his invention, in some public work
that had been produced, then the patent was not good; but
that it was not enough that the description should merely
suggest the idea of the invention.
That it was a question of fact for the jury, whether the
specification was sufficiently exact and intelligible, in reference to the position of the trucks.
That, in order to find for the plaintiff, the jury must be
convinced that what the plaintiff had patented is useful;
but that any degree of utility was sufficient to support a
patent-the word useful in the patent law being used in
opposition to frivolous or noxious; and that, with regard to
the question of side-bearings, although the jury should think
it better to have longer bearings than the plaintiff contemplated, that could not take away the utility of his invention,
as it was not necessary that the thing patented should be the
best possible thing of the kind that could be made.
That if the jury believed that the intermediate time between
putting the Columbus into use and the taking out of his
patent was devoted, by the plaintiff, in good faith, to the
perfecting of his invention, he could not be considered as
having abandoned it; but that if the invention was perfected
in the Columbus, there could be no need of further experiment.
That, in order to warrant the jury in finding an infiringement by the defendants, they must be shown to have used
either the same thing, or substantially the same thing as the
plaintiff's invention.




32               JUDGE NELSON S OPINION.
Tle jury rendered a verdict ill favor of the plaintiff, for
the stipulated damages.
A motion for a new trial in the foregoing case of Ross
WVinans vs. The Schenectady  and Troy Rail-Road Company,
was made by the defendants, and was argued before Mr.
Justice NELSON and Judge CONKLING, in July, 1851. In
September, 1851, the motion for a new trial was denied.
Mr. Justice [Nelson delivered the following written opinion:
NELSON, J.-I. I have examined the various grounds presented by the counsel for the defendants on the motion for a
new trial, and after the fullest consideration,'am of opinion
the motion must be denied.
3Most of the exceptions taken at the trial, and relied on in
the argument here, are founded upon what we regard as an
entire misapprehension of the thing claimed to have been
discovered by the plaintiff, and for which the patent has
been issued. This will be seen on a reference to the instructions prayed for by the defendants, upon which most of the
questions in the case arise. They assumne that if any material part of the arrangemnent and combination in the construction of the cars or carriages described in the patent was
before known, or in public use, it is invalid; and hence
various parts were pointed out by the counsel at the trial,
and the court requested to charge, that if either of them was
not new, the jury should find a verdict for the defendants.
Now, the answer to all this class of exceptions is, that the
patentee sets up no claim to the discovery of the separate
parts of the arrangement which enter into the construction
of his cars. These may be old and well known, when taken
separately and detached, for aught that concerns his invention. His claim is for the car itself, constructed and arranged as described in his patent. This, I think, is the clear
meaning of the specification and of the claim as pointed out
in it. Proving, therefore, that parts of the arrangement and
construction were before known, amounted to nothing. The
question was, whether or not cars or carriages for running on
rail-roads, as a whole, substantially like the one described in
the patent, had been before known or in public use, not
whether certain parts were or were not substantially similar.
The argument presupposes that the claim is for the discovery of a new  combination and arrangement of certain
instruments and materials, by means of which a car is constructed of a given utility; and that if any one or more of
the supposed combinations turns out to be old, the patent is




JUDGE NELSON'S OPINION.             33
invalid. This is the principle upon which much of the
defence has been placed. But no such claim is found in the
patent. No particular combination or arrangement is pointed out as new, or claimed as such. The novelty of the discovery is placed upon no such ground. On the contrary,
the result of the entire arrangement and adjustment of the
several parts described, namely, the rail-road car, complete
and fit for use, is the thing pointed out and claimed as new.
This is the view taken by the Chief Justice of the patent, in
the case of the present plaintiff against the Newcastle and
French Town Turnpike and Rail-Road Company, tried before him in the Maryland District, and which was adopted
by the judge in the trial of this case.
IT. It was further insisted, on the part of the defendants,
that if the relative position of the two bearing carriages to
each other, constituted a material part of the arrangement in
the construction of the cars, the patent was void, unless the
jury should find that the specification described with sufficient precision the location of these bearing carriages under the body of the car, so as to enable a mechanic of skill
in the construction of cars, to place them at the proper distance
apart, without experiment or invention. It was also contended that the remoteness of the bearing carriages from
each other, was not so described in the specification, as to
constitute any part of the improvement.
In respect to this branch of the case, the Court charged
that the relative position of the bearing carriages to each
other, in the construction of the car, was a material part of
the arrangement of the patentee, and left the question to the
jury whether or not he had sufficiently described the position
of the trucks, having in view their distance apart, and also
from the ends of the car body, suggesting at the same time,
that the location must always depend, in a measure, upon
the length of the body.
It will be seen, on looking into the specification, that the
location of the trucks relatively to each other under the
body, as well as the near proximity of the two axles of the
truck to each other, form a most essential parlt of the arrangement of the patentee in the construction of his cars.
Great pains have been taken to poinLt out the defects in the
existing four-wheel cars, and the impediments to be encountered and overcome in the running of cars upon rail-roads,
as the latter are usually constructed. The patentee states,
that in the construction of them, especially when of considerable length, it has been found necessary to admit of
3




34              JUDGE NELSON'S OPINION.
lateral curvatures, the radius of which is sometimes but a
few hundred feet, and that it becomes. important, therefore,
to so construct the cars as to enable them to overcome the
difficulties presented by these curvatures, and to adapt them
for running with the least friction practicable on all parts of
the road. The friction referred to, is that which arises between the flanges of the wheels and the rails, causing great
loss of power, and destruction of the wheels and rails, besides
other injuries. For this purpose, he constructs two bearing
carriages, each with four wheels, which are to sustain the
body of the passenger or other car, by placing one of them
at or near each end of it, as particularly described. The
two wheels on either side of the truck are to be placed very
near each other —the spaces between their flanges need be no
greater than is necessary to prevent their contact with each
other. The car body rests upon bolsters, supported on each
of the two bearing carriages or four-wheel trucks, the bolsters so constructed as to swivel or turn on each other, like
the two front bolsters of a common wagon. The body of the
car may be made of double the length of the four-wheeled
car, and is capable of carrying double its load. The truck
may be so placed within the ends of the car as to bring all
the wheels under it, or without the end, so as to allow the
body to be suspended between the two bearing carriages.
The patentee further states, that the closeness of the fore and
hind wheels of each bearing carriage, taken in connection
with the use of two bearing carriages, arranged as distant
from each other as can conveniently be done for'the support
of the car-body, with a view to the objects and on the principles before set forth, is considered by him as an important
feature of the invention; for, by the contiguity of the fore
and hind wheels of each bearing carriage, while the two
bearing carriages may be at any desirable distance apart,
the lateral friction from the rubbing of the flanges against
the rails is most effectually avoided, while at the same time
all the advantages attendant upon placing the axles of a
fourwheeled car far apart are obtained. The two wheels
on either side of the bearing carriages may, from their
proximity, be considered as acting like a single wheel, and,
as these two bearing carriages may be placed at any distance from each other, consistent with the required strength
of the body of the car, it is apparent that all the advantages
are obtained which result from having the two axles of a
four-wheeled car at a distance from each other, while its inconveniences are avoided.




JUDGE NELSON1'S OPINION.           35
Among the principles stated by the patentee to be taken
into consideration in the construction of the car is, that the
greater the distance between the axles, while the length of
the body remains the same, the less the influence of shocks
and concussions occurring on the road; and hence the relief
from them, when the trucks are placed under the extreme
ends of the body, is greater than when placed midway between the centre and the end.
It is apparent from what we have already referred to in
the specification, and still more manifest on a perusal of the
whole of it, that the improvement in this part of the arrangement does not consist in placing the axles of the two trucks
at any precise distance apart, in the construction of the car,
or from each end of the body. The distance used must necessarily depend somewhat upon the length of the car and
strength of the materials of which it is built, and hence it
was impracticable to specify in feet or inches the exact distance from the ends of the car body at which it would be
best to arrange the trucks. Neither do the advantages of a
car, constructed and arranged as described, depend upon the
trucks being placed at a specified distance from the ends, or
so that there may be a specified distance between the axles.
Having in view the defects in the existing cars, and other
difficulties to be encountered, some considerable latitude
may be allowed in this respect consistent with the object
soutght to be attained, to remedy the defects in the existing
cars. All the principles for the construction of one, for the
purpose of overcoming these difficulties, and remedying
these defects, are particularly set forth in the description
given by the patentee.  We think the specification sufficient, and that the Court was right in the opinion expressed
on this branch of the case. Any mechanic of skill could
readily arrange the bearing carriages in connection with the
body of the car, so as to secure the advantages so minutely
and clearly pointed out, and which are shown to attend
the practical working of cars constructed in the manner
described.
III. The questions of originality and of infringement were
questions of fact, and depending upon the evidence, and
were properly submitted to the jury. We think the weight
of it decidedly with the verdict.
IV. The patent in this case was originally issued 1st
October, 1834, and was recorded anew 7th of June, 1837,
according to the act of Congress of the 3d of March, 1837,
(5 St. at Large, 191.) No drawings were attached to the




36               JUDGE NELSON'S OPINION.
original patent, nor was there any reference therein to drawings. On the 25th of September, 184i, the patent was extended for the term of seven years from the 1st of October,
1848. The plaintiff gave in evidence, at the commencement
of the trial, a certified copy of the patent and specification,
certificate of the extension, drawing with references to the
same, and an affidavit of the plaintiff made November 19,
1838. The drawing was not filed at the time the patent was
recorded anew, but was filed on the 19th of November, 1838.
The counsel for the defendants objected to the evidence, on
the grounds — st. That it appeared that no drawing was
annexed to the original patent; and 2d, that the act of Congress did not make such a drawing evidence. The Court
also instructed the jury, in summing up the case, that the
drawing, a certified copy of which had been given in evidence, was to have the same force and effect as if it had
been referred to in the specification, and was to be deemed
and taken as part of the specification.
The first section of the act of 1837, provides that any person interested in a patent issued prior to the 15th of December, 1836, may, without any charge, have the same recorded
anew, together with the descriptions, specification of claim
and drawings annexed or belonging to the same; and it is
made the duty of the Commissioner to cause the same, or
any authenticated copy of the original record, specification
or drawing which he may obtain, to be transcribed and
copied into books of record kept for that purpose; and whenever a drawing was not originally annexed to the patent, and
referred to in the specifcation, cany drawing prodced as a
delineation of the invention, being verified by oath in such
manner as the comrmissioner shall require, mzay be transnmitted and placed on file, or copied as aforesaid, together.with the certificate of the oath, or such drawings Bmay be.made in the office, under the direction of the Commissioner'in conformity with the specification.
The second section provides, that copies of such record
and drawings, certified by the Commissioner, or, in his
absence, by the chief clerk, shall belprimafacie evidence of the
particulars of the invention and of the patent granted therefor,
in any judicial Court of the United States, in all cases where
copies of the original record, or specification and drawings,
would be.evidenee, without proof of the loss of such originals.
This section also provides that no patent issued prior to the
aforesaid 15th day of IDecember, 1836, shall, after the first
day of June then next, be received in evidence in any Court




JUDGE NELSON9S OPINION.             3
on behalf of the patentee, unless so recorded anew, and a
drawing of the invention, if separate from the patent, verified
as aforesaid and deposited in the patent office. See, also,
section third of the same act.
It is quite clear, upon the above provisions of the act, tha
the Court was right in admitting the drawings, in connection
with the patent and specification, in evidence. The whole
together are made pr~imacfacie evidence of the particulars of
the invention and of the patent granted therefor.
The weight to be given to the drawings furnished under
the act, by way of enlarging or explaining the description
as given in the specification, is another question. That will
depend upon the circumstances of each particular case. As
a general rule, they will not be effectual to correct any
material defect in the specification, unless it should appear
that they correspond with one accompanying the original
specification of the patent; otherwise, in case of discrepancy
between the drawing and specification, the latter should prevail. Care must be taken to avoid imposition by the use of
the newly furnished drawing, and for this purpose the specification will afford the proper correction, unless the plaintiff
goes further and shows that it conforms to the one originally
filed.
The charge that the drawing in this case was to have the
same force and effect as if it had been referred to in the
specification, and was to be deemed and taken as part of it,
was, perhaps, too strong, as it respects the drawings furnished
under the act of 1837. The principle is true as it respects
those accompanying the original application for the patent,
but can hardly be said to be applicable to the full extent
stated, in the case of these newly furnished drawings. The
principle might open the way to imposition and fraud. Assuming that there is nothing but the oath of the party attesting that the drawing affi'ords a true delineation of the invention, the specification should prevail in case of a material
discrepancy. But, admitting the instruction in this respect
not to be strictly correct, and that too much weight was
given to the drawing, we do not see that it would have
altered the result. The specification afforded a sufficient description of the invention independently of the drawing.
Some slight additions that improved the working of the car,
were open to some question, whether they were embraced
in the specification, but they did not enter into the essence
of the invention, or constitute any substantial part of the improvement.  Time and experience usually indicate these




38              JUDGE NELSON'S CHARGE.
slight additions and alterations, and they should be regarded
as consequential results, belonging to the inventor. It requires time and experience usually to perfect the machine,
and improvements derived therefrom are justly due to him.
V. As to the prior use of the car Columbus and others,
constructed by'the patentee before he made application for
his patent, we think the instruction of the Court correct.
The law allows the inventor a reasonable time to perfect his
invention by experiments; and these could be made in this
instance only by putting the car in the service of those controlling lines of rail-roads. There were repeated failures in
the experiments tried, and the cars abandoned before the
perfection of the car described in the patent. These experiments and trials sufficiently account for the previous use set
up by way of forfeiture of the invention.
Upon the whole, after a careful examination of the case,
and of all the points made by the defendants on the argument, many of which have been noticed above, we are satisfied that the verdict is right, and that a new trial should be
denied.
In November, 1855, an action at law, brought by IRoss
Winans against The New-York and HIarlem Rail-Road Company, in the Circuit Court of the United States for the
Southern District of New-York, for an infriingement of the
foregoing Letters Patent, was tried before  -Iis HIonor Mr.
Justice NELSON and a jury, at New-York. The following
was the charge of Judge NELSON to the jury on that trial:
GENTLEMEN OF THE JURY: The first question in this case
is —what is the thing, the machine, or instrument which the
plaintiff claims to have invented? It is essential to comprehend this, in order to ascertain whether it is new-never before known, or in public use; and is also essential to enable
you to determine whether the cars used by the defendants
are a violation of the patent. It will be necessary, therefore,
in the first instance, to turn your minds to the patent and the
description of the improvement claimed, and which is there
to be found. The description, I think I may say, is one of
unusual clearness and precision for instruments of this character. We have had no difficulty ourself in ascertaining from
it the improvement as claimed by the patentee, as it defines
not only the arrangement and construction of the car-the
running gear and the body —but also the principles governing the same, and upon which the improvemnent is founded.




JUDGE NELSON'S CHARGE.               39
The patentee refers in the beginning to the numerous curvatures in the rail-roads of this country, the radius of which, in
many instances, is but a few hundred feet, and to the friction
arising between the flanges of the wheels and the rails, causing a loss of power, and destruction of both wheels and rails.
THe then refers to the high velocities on rail-roads by the
modern improvements in locomotive engines, and the demand
of public opinion-of the business interests of the countryfor this description of speed, and also to the consideration,
that certain things in the construction of both roads and cars
become important which were not, and would not have been,
at the old rates of speed. lIe observes that the great momentum of the load and intensity of -the shocks and concussions are among the things to be noted and provided for.
The patentee then refers to the fact, that passenger and other
cars, in general use upon rail-roads, have but four wheels, the
axles of which are placed from 31 to 5 feet apart, the distance
being governed by the nature of the road upon which they
are run, and other considerations. He then observes that,
when the cars (meaning the four-wheeled cars) are constructed so that the axles retain their parallelism, and are at a
considerable distance apart, there is, of necessity, a tendency
in the flanges of the wheels to come in contact with the
rails, especially on a curvature of a short radius, as the axles
then vary more from the direction of the radii; and that,
from this consideration, when taken alone, it would appear
to be best to place the axles as near each other as possible,
thus causing them to approach more nearly to the direction
of the radii of the curves, and the planes of the wheels to be
more in the line of the rails. But there are other considerations, lie says, that must not be overlooked in the construction of the car, namely, the increased force of the shocks from
obstructions at high velocities; and he observes that the
greater the distance between the axles, while the length
of the body remains the same, the less is the influence of
these shocks and concussions. In consequence of this, he
says, a compromise is most commonly made between the' evils
resulting from a considerable separation and a near approach,
as, by the modes of construction now (meaning then) in use
in respect to the four-wheeled cars, one of the advantages
which he has referred to must be sacrificed to the other. The
patentee then refers to the fact that the lateral curvatures of
the roads, together with their irregularities, create these difficulties-are at the foundation of these difficulties. It becomes
very important, therefore, he observes, both as regards




40              JUDGE NELSON'S CHARGE.
comfort, safety and economy, to devise a mode of combining
the advantages derived from placing the axles a considerable distance apart, with those of allowing them  to be
situated near to each other.
Now, gentlemen, this is a result to which the patentee
arrives, after his discussion of the various difficulties to be
encountered in the construction of the car, and it may be
said to be the leading idea-the general principle-the fundamental principle, if you please-embodied in the eightwheel car, and which he has subsequently described. I
will call your attention to it again, because it brings out the
principle upon which the eight-wheel car has been constructed by the patentee. It tends, therefore, very mnuch to
develop the leading features —the controlling features of
that construction. He says: It becomes very important,
both as regards comfort, safety and economy, to devise a
mode of combining the advantages derived from placing the
axles at a considerable distance apart, with those of allowing them to be situated near to each other. He then refers
to the attempt to overcome these difficulties by the use of
coned wheels, and to the partial remedy thereby, but points
out the failure of the use of those alone, under high velocity,
to get rid of the embarrassment.
The patentee then explains the object of his invention,
which, among other things, is to make such an acdjustment
or arrangement of the wheels and axles, as shall cause the
body of the car or carriage to pursue a more even, direct
and safe course than it does as cars are ordinarily constructed, both over the curved and straight parts of the road, by
the desideratum, of combining the advantages of the near
and distant coupling of the axles, and other means which he
has described.
Ile then describes the arrangement and construction of his
car, which I will not take up your time in reading. It has
been read so often, and so frequently illustrated and exemplified in the progress of this trial, that I have no doubt you
are familiar with it. It will be found upon the copy of the
patent which I have between folios 21 and 28. And then
comes the claim. The patentee says, after describing the construction of his car:
" I do not claim as my invention the running of cars or
carriages upon eight wheels, this having been previously
done; not, however, in the manner or for the purposes
herein described, but merely with a view of distributing the
weight carried, more evenly upon a rail or other road, and




JUDGE NELSON'S CHARGE.            41
for objects distinct in character from those which I have
had in view, as herein before set forth. [Nor have the
wheels, when thus increased in number, been so arranged or
connected with each other, either by design or accident, as
to accomplish this purpose. WVhat I claim, therefore, as my
invention, and for which I ask a patent, is, the before described manner of arranging and connecting the eight wheels,
which constitute the two bearing carriages, with a rail-road
car, so as to accomplish the end proposed by the means set
forth; or by any others which are analogous and dependent
upon the same principles."
The claim itself explains the improvement set up by the
patentee. It is the arrangement and construction and adjustment of the eight-wheeled car, as described in his specification-the ccr as a whole. The patentee claims no right as
inventor to any of the constituent parts of the car-the
wheels, the axles, the peculiar construction or framing of the
running gear of the bearing carriages, the contrivances by
which they are connected together, the springs, the bolsters,
the turning of them upon the centre, or the swiveling of the
trucks —nothing of this is claimed as new on the part of the
patentee. This is plain from the terms of the claim, which
is the construction and arrangement and adjustment of these
various parts into a car as a whole, combining the advantages which he has set forth, as he claims.
Now, it is proper to observe, that this improvement, as
claimed by the patentee, is made upon the existing fourwheel car then in general use, and which, as has appeared
in the progress of this trial, is still in use in England, and,
probably, upon the Continent, unless they have adopted our
eight-wheel cars, some specimens of which I have understood
have been sent to the Continent. It will, therefore, be
proper and useful for you to examine this four-wheel car as
then in general use, and the evidence in respect to it. Models have been introduced and exemplified, and no doubt you
understand it. But you should inquire into this fact, in
order to ascertain whether or not the difficulties described by
the patentee existed upon curved roads at great velocity-I
mean as respected this four-wheel car then in use upon roads
with high velocity and with short curves-and whether or
not the eight-wheel car, as arranged and constructed by the
patentee, is an improvement upon it. This is one of the
questions in the case for your consideration, and, as to this,
you will probably not have much difficulty. From the time
they were first brought out in Baltimore-I mean the eight



42              JTUDGE NELsON's CHARGE.
wheel cars-it is admitted on all sides, that they have generally taken the place of the previous four-wheel car, and their
use soon spread throughout the rail-roads of the United
States, and, for aught that appears before us in this trial, the
first construction and arrangement, and adaptation of those
eight-wheel cars to the rail-roads of this country was in Baltimore, and theywere constructed and arranged for the Baltimore
and Ohio Rail-Road Company, and the Washington Branch
of it. It was offered, it is true, to be shown, on the part of
the defendants, that one-that is an eight-wheel car-was
brought out in Massachusetts in 1838, but that fact, at that
late day, affords no exception to the truth of the remark I have
made: for the eight-wheel car, what is claimed by the patentee to be the perfected car, the car completed, and upon
which the patent was founded, was made as early as the beginning of the winter-sometime in December, 1834 —the
Washington cars, some four years before the eight-wheel car
in Massachusetts.
Now, gentlemen, if I have succeeded in explaining to you
the improvement described in the plaintiff's patent, and
claimed by him, upon these four-wheel cars, by the construction of an eight-wheel car, as I hope I have, the next question to which your attention must be called is this-whether
or not this eight-wheel car, this improvement as thus described
in the patent, and as first brought out in Baltimore-whether
this was the improvement of the plaintiff. This is one of
the material questions in the case, which, as you have already
discovered, has been most seriously contested between the
parties. After calling to your minds the construction given
by the Court to the patent, and to what constitutes the improvement which is claimed to have been reduced to practical use-after you have ascertained and comprehended this
improvement claimed by the plaintiff, and described in his
patent-after this, which is a question of law, (I mean so far
as the construction of the patent is concerned-) after you have
ascertained what is claimed by the plaintiff as his improvement, the question whether or not he was the first inventor
of it is a question of fact, which belongs to you to determine.
The burden of the evidence-for the greater portion of the
time, the long time which has been constuned in this trialhas been directed on both sides to the solution of this question. The patent of the plaintiff, given in evidence, and the
extension of it for seven years, which has also been given in
evidence, together with the testimony of the experts introduced on the part of the plaintiff in the opening of the case,




JUDGE NELSON7S CHARGE.              43
furnish priinaifacie evidence that the plaintiff was the first
and original inventor of the improvement claimed, and of its
utility; and, therefore, the burden of showing that he was
not the first and original inventor, and of the inutility of the
patent, rests upon the defendants. They are. obliged to assume this position in that stage of the trial. Accordingly,
they have gone into evidence at large for the purpose of satisfying you upon these points, and you have before you, first,
the evidence fi'om1  Baltimore, for the purpose of showing
this-that, assuming the car described in the plaintiff's
patent to be the improvement upon the four-wheel car, and
that it was new and useful, yet the defendants insist, upon
this evidence, that the plaintiff was not the first inventor,
but that somebody else was. They refer to the timber, the
wood and the trussel cars, and much evidence has been given
in respect to these cars. The plaintiff, on the contrary, insists that neither of them embodied his improvement, or that
if any of them did, it was constructed after his invention,
which it is claimed is carried back upon the evidence to the
fall or beginning of the winter of 1830. Now, gentlemen, I
am not going over this evidence on either side. It has been
so amply and ably discussed by the learned counsel upon
both sides, that I cannot doubt that you are familiar with
every mnaterial portion of it. It will be for you to say,
upon the evidence, whether or not the defendants have furnished evidence to satisfy you that the plaintiff was not the
first and original inventor, but that somebody else was.
They have that burden upon them. It will be for you to
determine, upon the whole of the evidence, whether they
have overcome the patent, and the evidence furnished in
support of it.
Then another ground is taken, viz., that there is nothing
new in the arrangement or construction of the car, as described in the patent, but that it was old, and before in public use; and they say that it is to be found in Chapman's
patent and drawings, and also in Tredgold and Fairlambalthough, as to the two latter, they are not much relied uponin the Quincy car, in the Allen locomotive, and in the Jervis
locomotive. All these have been brought out in the -progress of the trial, and amply examined and discussed, and I
am persuaded that you are entirely familiar with all the
evidence bearing upon this branch of the case. The question upon it will be, whether or not you find the improvement
of the plaintiff-the improvement existing in the arrangement and construction of his eight-wheel car upon the four



44              JUDGE NELSON'S CHARGE.
wheel car-whether you find that improvement in any one
or all of these patents or machines-not whether they have
eight wheels and two trucks, free to swivel or rockl-but the
question is, whether the peculiar arrangement, adjustment
and construction of the car-the wheels and trucks in relation to the road-claimed in the patent, and which I have
endeavored to explain to you, on the principles which the
patentee has developed-whether that embodiment thus
fbund in the eight-wheel car is to be found in either of these
structures to which you have been referred. That is the
question.
Another ground of defence set up on the part of the defendants is, that Mr. Imlay is the inventor. You recollect
his testimony, I have no doubt. It is claimed that he
carries back the construction, or the idea, if not the construction, of the eight-wheel car, to 1829. It is, however,
proper to say, in respect to this witness, that he spoke
doubtingly as to time. He would not speak positively. It
was a matter of memory with him. I noted his evidence
particularly. Hie was uncertain as to time. But, whatever
that time was, (and I refer to his interview with the Coinmittee of the French Town Rail-Road,) he says he made a
rough sketch of his idea of an eight-wheel car at this time,
whatever time that may be, and that he made a contract
with the road to build a car as he thinks, but which fell
through in consequence of his partners' not concurring with
him; and then we hear no more of his connection with an
eight-wheel car until he removes from Baltimore to Philadelphia, in 1833, and brings out, I think, the "Victory," in
1834 or 1835, I am not certain which. I refer more particularly to the evidence of this witness, for the purpose of
stating to you a principle of law. Now, the circumstance
that a person has had an idea of an improvement in his head,
or has sketched it upon paper-has drawn it, and then gives
it up-neglects it-does not, in judgment of law, constitute
or have the effect to constitute him a first and original inventor. It is not the person who has only produced the idea,
that is entitled to protection as an inventor, but the person
who has embodied the idea into a practical machine, and
reduced it to practical use. He who has first done that, is
the inventor who is entitled to protection.
A kindred principle, also, it may be proper to state here,
which is, that where a person engaged in producing some
new and useful instrument or contrivance, and who has embodied it into a machine, and endeavored to reduce it to




JUDGE NELSON'S CHARGE.               45
practice by experiments-if those trials fail-if he fail in
success and abandon it, or give it up, that consideration
affords no impediment to another person, who has taken up
the same idea or class of ideas, and who has gone on perseveringly in his studies, trials and experiments, until he has
perfected the new idea, and brought it into practical and
useful operation. He is the person-the meritorious inventor
-who is entitled to the protection of the law.
Another ground of defence set up-is, that the patentee
allowed the public use of his improvement, of his eight-wheel
car, upon the Baltimore and Ohio Rail-Road, before he made
his application for a patent. Now, it is undoubtedly true,
as the law stood at the time of this patent, in October, 1834,
that the public use of the invention, with the consent of the
patentee, or sale of it, prior to the time of his application
for a patent, operated as a forfeiture-as a dedication to the
public. This, however, means the use of the perfected invention-the invention complete. If the use be experimental, to ascertain the value, or the utility, or the success of the
thing invented, by putting it into practice by trial, such use
will not deprive the patentee of his right to the product of
his genius. The plaintiff, therefore, in this case, had a right
to use his cars on the Baltimore and Ohio Rail-Road, by
way of trial and experiment, and to enter into stipulations
with the directors of the-road for this purpose, without any
forfeiture of his rights. lie could not probably obtain the
opportunity of trial which was essential to the perfection of
his improvement without obtaining their consent, and, as I
have already said, it is the use of the improvement after it
has been completed and reduced to practical success, which
operates as a forfeiture-as a dedication to the public-as a
giving it up to the public.
Now, gentlemen, if upon consideration of these questions
which I have submitted to you, you should come to the conclusion that this improvement is a useful one, and that the
plaintiff is the first and original inventor of it, the next
question for your consideration is, the question of infiringement. If you are against the plaintiff upon either of the
two first questions-of utility and originality —then, of course,
this other question will not be reached.
Then, as to the infringement by the defendants' cars, the
question is-do they embody the arrangement and construction of the plaintiff's car-in other words, the improvement
in the plaintiff's specification? Improvements, asyou have
seen during the progress of this trial, have been made upon




46               JUDGE NELSON'S CHARGE.
the eight-wheel car, since it was brought out and put in operation. The swinging bolster is an instance, and there are also
others that have been mentioned in the course of the trial.
Now, the improvements thus made upon the eight-wheel car
do not give any right to the thing improved. The plaintiff
in this case would have had no right to use a four-wheel car
if there had been a patent for it, because he had improved it
by the eight-wheel car. So an improvemlent upon the eightwheel car does not absorb, or give a right to the inventor of
that improvement to use the thing improved. Therefore, the
question still is, whether or not you find in the defendants'
organization and arrangement the organization and arrangement of the plaintiff's improved car. If you do, the additional improvements since made upon it do not disprove the
infringement. It is a question of fact for you to determine.
Having ascertained and comprehended what the improvement of the plaintiff is, as claimed in his patent, and which
I have endeavored to explain to you in the beginning of this
charge, you will apply that to the defendants' cars, and see
whether it is embodied there. If it is not, then there is no
infringement. If it is, there is an infringement.
Then, as to the question of damages. It is admitted by the
counsel for the plaintiff that the amount stated in the declaration is $10,000. This suit was brought on the 16th of January, 1849, as stated.  They claim  damages for the years
1847 and 1848. It is in evidence that 24 eight-wheel passenger cars, 32 freight cars and 8 baggage cars were used in
1847 by the defendants upon'their road; and in 1848, 25
eight-wheel passenger cars, 35 freight cars, and 11 baggage
cars. It is also in evidence, and it does not seem to be contradicted, that the patent fee for the right to use an eightwheel passenger car, is worth $200 a car per annum for
license, and that the freight cars and baggage cars would be
worth $20 per annum. Taking this evidence, and there
seems to be no contradiction about it, the damages claimed,
upon the principle which I have stated, would exceed considerably $10,000 There is no doubt about that. But you
are limited, and you cannot go beyond that sum. These,
gentlemen, are all the observations I think it is necessary to
make to you.
I have prayers for instructions here, by the defendants'
counsel, numbering, I believe, eighty, but the counsel must
excuse me from going over them. I have given all the instructions, and all the principles of law that I deem necessary
or useful in the submission of this case to you, and whatever




JUDGE NELSON'S CHARGE.            47
may be found in these numerous prayers is beyond what I
deem proper to trouble you with, for I regard them as not
pertinent, not relevant, and not material to comment upon.
The jury not being able to agree upon a verdict, were
discharged.