WALLACE, J.: The proofs show that in 1861 the firm of Alex. H. Smith & Co., then the proprietors of the Atlantic Mills, at St. Louis, Missouri, adopted the word "Champion," and employed it to distinguish a particular quality of flour made and sold by them. From that time until the present it has been used as a trade-mark, either by that firm or the several firms and corporations that became the proprietors of the property and business of the Atlantic Mills. The flour to which it was applied was particularly adapted for the Southern export trade, and became generally known and recognized as the production of the Atlantic Mills by the word which was thus used to designate it. The complainant has not made proof of any formal transfer by Alex. H. Smith & Co. to any of the succeeding proprietors of the Atlantic Mills of the right to use the trade-mark, and if complainant has acquired that right it is because it passed upon the purchase of the mill property and business as an accessory thereof to each purchaser who became the proprietor of the premises, including the complainant, without any agreement respecting the trade-mark. The right to the exclusive use of a word or symbol as a trade-mark is inseparable from the right to make and sell the commodity which it has been appropriated to designate as the production or article of the proprietor. It may be abandoned if the business of the proprietor is abandoned. It may become identified with the place or establishment where the article is manufactured or sold to which it has been applied, so as to designate and characterize the article as the production of that place or establishment rather than of the proprietor. A trade-mark of this description is of no value to the original proprietor, because he could not use it without deception, and therefore would not be protected in its exclusive enjoyment. Such a trade-mark would seem to be an incident to the business of the place or establishment to which it owes its origin, and without which it can have no independent existence. It should be deemed to pass with a transfer of the business, because such an implication is consistent with the character of the transaction and the presumable intention of the parties. Dixon Crucible Co. v. Guggenheim, 3 Am. Law Times, 228; Hudson v. Osborne, 39 L. J. N. S. Ch., 79; Shipwright v. Clements, 19 W. R., 599. The defendant controverts the right of the complainant to the exclusive use of the word "Champion" as a trade-mark by the testimony of two witnesses to the effect that they use it or saw it used as a brand upon flour before it was adopted by Alex. H. Smith & Co. The testimony of the witness Potter fails to show the use of the word in the instances to which he refers prior to 1867, and is therefore valueless. The witness Reamey testifies that he used it for branding the flour of nine different firms as long ago as 1857. None of the persons for whom it was so used have been produced, although many of them were accessible. If Reamey's statement is correct, it could have been readily cor roborated. The failure to do so is significant. His statement is not supported by any extrinsic evidence, and is not deemed sufficiently reliable to defeat the complainant's right. Upon the accounting to ascertain damages the fact is not overlooked that in the instances in which the trade-mark has been used by the defendant in connection with the names of other manufacturers than the complainant's, the complainant's damages are measured by the extent to which the unlawful use of the word "Champion" has interfered with the sale of their flour. Their right to an injunction is not affected because the appropriation of their trade-mark has been a limited one, and it is not incumbent on them to show that it has been copied in every particular. It is sufficient if his trade-mark has been copied to an extent calculated to mislead purchasers and cause the article to which it has been applied to pass as their article. The cases Gillott v. Esterbrook (48 N. Y., 374), Newman v. Alvord (51 N. Y., 189), Hier v. Abrahams (82 N. Y., 519), and Walton v. Crowley (3 Blatchf., 440) are instructive upon this point. A decree is ordered for the complainant. United States Circuit Court-Southern District of New York.] NATIONAL WIRE MATTRESS COMPANY v. NEW YORK BRAIDED WIRE MATTRESS COMPANY. Decided April 23, 1884. 28 O. G., 96. 1. Decrees sustaining certain claims of a reissue patent having been made when much less strictness in comparing reissued patents with originals was required, they are disregarded, and the claims held to be too narrow to embrace the defendant's invention or too broad for the original invention and claim. 2. A difference of construction perfectly obvious to any competent mechanic does not constitute a patentable invention. 3. If there is nothing in a reissue besides what is an expansion of the original patent which would cover anything in the defendant's structure, he does not infringe auything that is valid in the patents in suit. Mr. Charles E. Mitchell and Mr. Benj. F. Thurston for the orator. WHEELER, J.: This suit is brought upon the first and third claims of Reissue Letters Patent No. 5,312, granted to the orator, as assignee of Andrew Turnbull and Rodolphus L. Webb, for an improvement in bed-bottoms, dated March 4, 1873, and upon Reissue Letters Patent Nos. 9,919 and 9,920, granted to the orator, as assignee of Edwin S. Field, for improvements in spring bed-bottoms, dated November 1, 1881. The original of the former, which had been previously reissued in No. 5,185, was dated April 9, 1872, and those of the latter were dated May 6, 1873. The de fenses are want of novelty, variance between the originals and the reis sues, and lack of infringement. The first claim of the Turnbull and Webb reissue was sustained by decree in the district of Connecticut in 1875, and in the district of Massachusetts in 1878, but upon a somewhat different case. The patent of Charles Bigeon, dated January 16, 1872, was not introduced. All these bed-bottoms are made of wire. Wire bed-bottoms, bed-bottoms suspended on spiral springs attached to the frame of the bed, and bed-bottoms made of elastic looped wire were known before. To have that part of the bed about an occupant yield and shape itself to the person of the occupant without disturbing other parts of the bed was desirable, as well as a generally yielding surface. Wire bottoms attached to the frame of the bed or bottoms attached to frames suspended on spring would not give this independent conformation to the person. It could be accomplished by having the longitudinal strands sufficiently yielding without any or but loose connection with each other. Bigeon's patent showed these independent strands, made elastic throughout by being looped. Turnbull and Webb formed them of wire links and rings, and made them elastic by coiled springs at each end, and connected them loosely with one another by transverse links between the rings. This part of their invention consisted really in making the strands elastic at their ends only, instead of throughout, and dividing them into rings and links, or in taking out the end pieces between the horizontal strands and springs to which they were suspended, as shown in the patent of F. Stanley Bradley, No. 74,293, of February 11, 1868, and connecting the springs directly with the strands. The first claim of the original patent was for these springs attached to end bars and combined with these links. This claim was surrendered, and a broader claim taken for a bed-bottom composed of jointed links, made elastic longitudinally by the springs. The defendant's bed-bottom has continuous zigzag wires, linked together at the corners of diamond-shaped figures, and connected at each end to the ends of the frame by springs. This claim of this reissue is either too uarrow for the defendant's bed or too broad for the original invention and claim. If the defendant might be said to have the combination of the spring with the strand to connect it with the end piece, the claim which covered that combination has been surrendered to make room for the new claim, which does not cover that by itself so as to protect it. The former decrees were not only made with reference to the Bigeon patent, but when much less strictness in comparing reissued patents with originals was required. The third claim of tuis reissue is for a corner-iron to connect the end pieces with the side rail, and to support the strain upon the end pieces by a flange on the iron extending nearly to the top of the end pieces, against which they bear directly. This flange, without reference any. where to other parts of the iron, or any mode of attachment of the iron to the rails, is the distinctive feature of this claim. A similar flange for the same purpose is shown in the prior patent of George C. Perkins, No. 113,559, dated April 11, 1871. If there is any difference as to this patented feature of the flange, it consists in making the flange suffi. ciently lower than the top of the end piece to be out of the way of the attachments of the springs. This difference of construction would be so obvious to any competant mechanic as not to amount to a patentable invention. The original of the first Field reissue was for a netting composed of V-shaped links, hooked together in a peculiar manner, and a link for forming the straight edges of the netting. The links made diamondshaped figures. The reissue is for the combination, in a bed-bottom, of rails, end pieces, springs, and netting composed of continuous diamondshaped figures, and for the netting and links of the original. The original patent would not cover anything in the defendant's bed. What would cover anything in it is merely expansion of the original, and, as now understood, void. The original of the second Field reissue was for peculiar links as a component part of a bed-bottom and a bed-bottom composed of such links. The reissue is for connected and continuous zigzag wires connected with end rails by springs in a bed-bottom. There is nothing in this reissue that is not an expansion from the original which would cover anything in the defendant's structure. The result is that the defendant does not infringe anything that is valid in any of the orator's patents in controversy. Let there be a decree dismissing the bill of complaint, with costs. [United States Circuit Court-Eastern District of Pennsylvania.] SEWING-MACHINE COMPANY T. FRAME. Decided May 19, 1884. 28 O. G., 96. 1. A change made in an old device which, though simple, is effective, and produces a new and useful result, held to involve the exercise of invention. 2. The correction of a patent by means of a reissue where invalid or inoperative for want of a full and clear description of the invention is proper. 3. Where there is a doubt as to whether the description in a patent will be misunderstood, the judgment of the Patent Office as to the necessity for a reissue is eutitled to great weight. 4. A structural difference in form and size does not avoid infringement if the same work is done by substantially the same means. 5. The manner of using it does not characterize a machine. This is effected by its structure and capabilities. Mr. Charles Howson and Mr. Wayne Mac Veagh for the complainant. Messrs. Baldwin, Hollingsworth, and Fraley for the defendant. BUTLER, J.: The plaintiff having acquired title to Shorey's patent for cutting and trimming attachment for sewing machines, issued March 28, 1882, charges the defendant with infringement. The claim of the patent is in the following language: "The combination, substantially as herein described, with stitch-forming mechanism, of a rotary cutter having its cutting edge or edges eccentric." The specifications indicate the state of the art and the result sought by the inventor, and describe the invention reached so well that we cannot do better than to adopt and insert the language here: Cutting or trimming attachments have been applied to some extent to sewingmachines for the purpose of cutting off the edge of the work on a line equidistant from the seam, such attachments being particularly useful in machine-stitching leather. For such attachments a vertically-reciprocating cutter has sometimes been used, sometimes a rotary disk-cutter at the end of a horizontal shaft turning in stationary bearings, and sometimes a rotary disk-cutter having intermittent vertical movements, the cutter moving up just before the cloth is fed and remaining up during the feed, it having been found that the cutter was a hindrance to the feed, and not so effective in its cutting operation if in contact with the work during the feed. My invention has reference to the employment of a rotary cutter at the end of a horizontal shaft, and to such an arrangement of the mechanism as shall throw the cutting-edge out of action during feeding of the work. I journal my cutter-shaft in stationary bearings (or bearings that are stationary while the machine is operating), and I form the cutter with intermittent cutting-edges at one or more breaks in the circular periphery, and I so arrange the parts and so time them in their respective movements that when the feed-bar moves laterally to feed the work a break of the cutter-wheel shall be in juxtaposition to but not in contact with the work, so that there shall be no obstacle to the feed and no drag of the work against the rim of the cutter, the cutting or trimming being effected between the feed movements of the feed-bar, or while the work is stationary. My invention consists, primarily, in combining with the stitch-forming mechanism a rotary cutter having the cutting part or parts of its periphery eccentric to its axis of rotation. Aware of the defects in rotary disk-cutters (which, nevertheless, seemed to have advantages over all others then in use), Shorey started out to remove it. His object was to construct a machine that would cut the fabric and not interfere with feeding. Others were laboring in the same direction. Springer had invented a contrivance for raising and depressing the cutter, adding to its rotary motion an intermittent vertical movement. It was not, however, satisfactory. Shorey conceived the idea of accomplishing the desired result without the awkward, disadvantageous vertical movement by changing the form of the cutter and combining it in such relation to the feeding machanism that contact with the fabric would be avoided while the latter was moving. How he accomplished that is described by the language quoted, and illus trated by the drawings and model filed. The change made in the old device was simple but effective. It produced a new and useful result. That invention was involved in accomplishing it is manifest. Other intelligent and skillful mechanics, working toward the same end, failed to discover it. |