Opinion of the Court. into the tubs of the rectifier, and the identity of their contents lost. "The portion of the tax-paid stamp detached or cut and forwarded by the gauger, as heretofore described, includes the serial number of the stamp, the date on which the tax was paid, and the number of proof gallons; the number of the cask, the location of the warehouse, and the person or firm to whom delivered, and the signature of the collector; the part so cut out is over the paper back." The employment of the paper backing in the stamp used by the appellant, whereby the part to be cut out is prevented from adhering to the head of the barrel, and the arrangement of a part of the stamp so as to identify the package with that described in the stub, the removal of which destroys the stamp so that it cannot be used again, constitutes the alleged infringement of the first claim of the Locke patent, which covers every stamp within that description. The counsel for the appellee describes "the Locke stamp as a combination of three parts: 1st, a part which is designed to become a stub when the stamp proper is separated therefrom, and displays a serial number; 2d, a constituent part of the stamp proper which is designed for permanent attachment to the barrel; 3d, a constituent part of the stamp proper displaying the same identifying serial number as the stub, which part, after the stamp proper has been affixed to the barrel, bears such relation to the permanent part, that it can be so removed therefrom as to retain its own integrity, but mutilates and thereby cancels the stamp by its removal." In this combination it will not be questioned that the first and second elements were well known, and that the third, so far as its contents are identical with those on the stub, is not new. The question turns on that feature of the third element whereby a removable part of the stamp proper, the contents of which identify the stamp with the stub after the stamp has been attached, can be so removed as to retain its own integrity, but mutilates and thereby cancels the stamp by its renoval. This is what we ascertain to be the precise idea embodied in Opinion of the Court. the invention described and claimed in the patent, and which, although we find to be new in the sense that it had not been anticipated by any previous invention, of which it could therefore be declared to be an infringement, yet is not such an improvement as is entitled to be regarded in the sense of the patent laws as an invention. In reaching this conclusion we have allowed its due weight to the presumption in favor of the validity of the patent arising from the action of the Patent Office in granting it; and we have not been unmindful of the fact, abundantly proven, and indeed not denied, that the adoption of the present taxpaid stamp, in lieu of that previously in use by the Internal Revenue Bureau, has proven its superior utility in the prevention of frauds upon the revenue. The testimony on that point of the Commissioner of Internal Revenue from his official reports is quite conclusive. In his report for 1875 he mentions the adoption of "new regulations in regard to the use of taxpaid stamps, by which a portion of the stamp is cut out at the time of dumping and returned with the gauger's report," and says: "This effectually destroys the stamp and prevents its re-use, while at the same time, a sufficient amount of the engraving is shown upon the slip to determine whether the stamp is genuine;" and, in 1876, that official reported that "the plan of requiring the return of a portion of the tax-paid ş tamps, whenever a package to which it is attached is dump ed for rectification, has been found to be such a valuable preve ntion of fraud that it has been extended to include all stamps for rectified spirits and wholesale liquor dealers' stamps. "These three varieties of stamps for distilled spirits are now prepared at a trifling additional cost, with a paper back affixed to each in such a way that the portion of the stamp containing all the important data can be cut therefrom and filed with the commissioner or collector, thus furnishing conclusive evidence of the destruction of the stamp (rendering its re-use impossible), and furnishing also evidence as to the contents of the package bearing the stamp. "It is believed that this system affords the government a very effectual protection against the perpetration of fraud Opinion of the Court. in connection with the collection of the tax on distilled spirits." Such an increased utility, beyond what had been attained by devices previously in use, in cases of doubt, is usually regarded as determining the question of invention. But in the present case we are not able to give it such effect. No change, it will be observed, was made in the character of the stamp, so far as the relation between the stamp proper and the stub is concerned, nor in the identifying marks which constituted the written and printed matter upon both; and the expedient of using a paper backing which prevented the adhesion to the package of the part intended to be detached and removed, it is manifest would be adopted by any skilled person having that end in view. The idea of detaching that portion of the stamp, with the double effect of destroying the stamp by mutilation and preserving the evidence of the identity of the package on which it had been first placed in use, which is all that remains to constitute the invention, seems to us not to spring from that intuitive faculty of the mind put forth in the search for new results, or new methods, creating what had not before existed, or bringing to light what lay hidden from vision; but, on the other hand, to be the suggestion of that common experience, which arose spontaneously and by a necessity of human reasoning, in the minds of those who had become acquainted with the circumstances with which they had to deal. Cutting out a portion of the stamp, as a means of defacing and mutilating it, so as to prevent a second use, was matter of common knowledge and practice, before the date of this patent; and cutting out a particular portion, on which the identifying marks had been previously written or printed, was simply cutting a stub from the stamp, instead of cutting the stamp from the stub, as before. So that, when the frequency and magnitude of the frauds upon the revenue, committed by the removal of taxpaid stamps from packages, on which they had been originally placed by the officer, to others surreptitiously substituted for them, or by emptying the packages of their original contents, and fraudulently refilling them with spirits on which no tax Syllabus. had been paid, attracted the general attention of the revenue department, the answer to the problem of prevention was found by immediate inference from the existing regulations, in the adoption of the expedient now in question. As soon as the mischief became apparent, and the remedy was seriously and systematically studied by those competent to deal with the subject, the present regulation was promptly suggested and adopted, just as a skilled mechanic, witnessing the performance of a machine, inadequate, by reason of some defect, to accomplish the object for which it had been designed, by the application of his common knowledge and experience, perceives the reason of the failure, and supplies what is obviously wanting. It is but the display of the expected skill of the calling, and involves only the exercise of the ordinary faculties of reasoning upon the materials supplied by a special knowledge, and the facility of manipulation which results from its habitual and intelligent practice; and is in no sense the creative work of that inventive faculty which it is the purpose of the Constitution and the patent laws to encourage and reward. On this ground The decree of the Circuit Court is reversed, and the cause remanded, with directions to enter a decree dismissing the bill. HESS v. REYNOLDS, Administrator. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MICHIGAN. Submitted December 9, 1884.-Decided January 5, 1885. A proceeding in a State court against an administrator, to obtain payment of a debt due by the decedent in his lifetime, is removable into a court of the United States, when the creditor and the administrator are citizens of différent States, notwithstanding the State statute may enact that such claims can only be established in a Probate Court of the State, or by appeal from that court to some other State court. The act of March 3, 1875, to determine the jurisdiction of the Circuit Courts Argument for Defendant in Error. and regulate the removal of causes from State courts, does not repeal or supersede all other statutes on those subjects, but only such as are in conflict with this latter statute. The third clause of section 639 of the Revised Statutes is not, therefore, abrogated or repealed. An application for removal under that clause is in time, if made before the trial or final hearing of the cause in the State court. The report of commissioners to whom a claim has been referred by a Probate Court under the statutes of Michigan, is not such final hearing within the meaning of that section. The removal in all cases is into the Circuit Court of the District, which embraces territorially the State court in which the suit is pending at the time of the removal, without regard to the place where it originated. The record shows that plaintiff in error, who was a citizen of Missouri, prosecuted his claim in the Probate Court of Ionia County, Michigan, against the estate of Warren Sherwood, deceased, of which William Reynolds had been appointed administrator. The claim being resisted, was, in due course of proceeding, referred to commissioners appointed by the probate judge, who reported against its allowance. Thereupon Hess, as the Michigan statute authorized, appealed to the Circuit Court of Ionia County, where he was entitled to a trial by jury. The judge of that court having been counsel for the administrator in the case, it was, by proper order, removed to the Circuit Court of Jackson County after a delay of several years, and from that court into the Circuit Court of the United States, on the affidavit of Hess that he had reason to believe, and did believe, that, from prejudice and local influence, he would not be able to obtain justice in said State court. The Circuit Court remanded the cause to the State court from which it had been removed; and this writ of error was brought to that judgment. Mr. Henry Newbegin, and Mr. B. B. Kingsbury for plaintiff in error. Mr. Edgar M. Marble for defendant in error.-Under the statutes of Michigan, no process can issue from the State court to collect the claim. The determination of the State court is certified to the Probate Court and claims paid upon the basis 1 སྤྱི |