(after stating the facts as above). The question to be deterxnined is whether, in view of the disclosures of the pxior patent to Almond of August 19, 1890, the claims in controversy can be sustained. Both patentees had in mind the accomplishment of the same result. Twenty years before the date of the patent in *227suit for a “flexible shaft” Almond had obtained a patent for a “flexible tube.” The Almond patent expired prior to the date of the commencement of this action, leaving the public free to use the tube described and claimed therein. Although the question arises upon demurrer to the amended complaint, we are permitted to consider the Almond patent because it is specifically referred to in the amended bill. It is manifestly in the interests of both parties that the question of validity should be decided in limine rather than at the end of a long and expensive trial.
The principal argument upon which patentability rests is that the plaintiff's device is lighter and cheaper than that of the defendant. Invention cannot be predicated of cheapness and lightness alone unless these advantages are produced by the exercises of inventive skill. We are unable to find in the patent in suit any change from the Almond construction which is beyond the*capacity of the skilled mechanic. The disclaimer does not aid the plaintiff for it will be seen that, even when the claims are limited to a structure where the abutting surfaces, of the two wires meet and rest against each other and the radius of the curves of the two abutting surfaces are substantially the same, nothing is disclosed which is not substantially shown by Almond. In his specification he says:
“This curved or concaved triangle in contact with the inner coil D is shown in Fig. 3 and has the advantage of giving a still greater contact-face and of producing a tighter joint when the tube is bent; but Fig. 5 shows a still better form in that the inner coil D has contact-faces 6 on the same curve as the contact-faces a of the concave triangles A.
One way of making this improved tube is to first place around a mandrel B the coil D and then to forcé between the convolutions of that coil the triangular coil A, so that the wedge-like convolutions of this coil A will enter between the convolutions of the coil D, tending to spread them apart, and insuring therefore a tight joint, which will be maintained tight even when the tube is bent to a reasonable degree. In using the tube the mandrel is of course removed.”
We fail to find in the patent in suit any patentable novelty, in view of the disclosures of the Almond patent.
The judgment is affirmed with costs.