support nor mechanism for adjusting and securing it in any desired position. The other of these chains, however, is connected at one end with the lever mounted on the hinge-bar, and at the other end to the straight spring, and it possesses both a yielding support and provision for adjusting and securing it in the desired position.

The differences in the devices above alluded to, in my judgment, are formal merely, and my conclusion is that substantially and for one practical purpose the giant mower embodies Smith's invention as shown and claimed in the second and third claims of his patent of 1880. That the finger bar in the defendant's machine has the downward middle curvature described in Smith's patent of 1884 and embraced in the first three claims thereof is not seriously controverted. As we have already seen, this invention is both new and useful. Therefore the want of public acquiescence cannot avoid infringing parties, and, indeed, in such a case as this, it is a matter of no moment whatever.

A preliminary injunction as moved for must issue, and it is so ordered.

[United States Circuit Court-Southern District of New York.]

ROEMER v. SIMON ET AL.

Decided May 10, 1884.

28 O. G., 194.

A structure embracing all the elements of the patented invention, and also an additional feature not found in the latter, constitutes an infringement of the patent.

Mr. A. v. Briesen for the orator.

Mr. Frederic H. Betts for the defendants.

WHEELER, J.:

This suit is brought upon Letters Patent No. 195,233, dated September 18, 1877, and granted to the orator for an improvement in combined lock and handle for traveling-bags. The improvement consists in having the case for the lock long enough to fasten the handle to at each end by rings through the upright walls of the case. The handle is thus attached to the lock, and by that to the bag, and the extended perpendicular walls of the case stiffen and strengthen the whole. If the invention had been of an attachment of the lock directly to the handles only, or of the extension of the top plate of the lock-case along the frame to receive the handle rings, it would have been anticipated; but the substance of it is understood to be the single attachment of the lock and handle to the frame, and taking advantage of the walls of the case to strengthen the frame at the handles. None of the devices relied upon by the defense meet these qualities. The patent therefore seems to be valid. The structure shown for an infringement appears to have

all the elements of the patented invention, with the addition of a bottom plate to the lock extending beyond and fitting over the handlerings. This adds to, but does not take the place of, the orator's ar rangement. The attachment of the handles to the lock-case and the support of the whole by the walls of the case are retained. This taking of the invention for the purpose of adding to it is as much an infringement as if taken and used without the addition. The orator therefore seems to be entitled to a decree.

Let a decree be entered for the orator for an injunction and an account, with costs.

[United States Circuit Court-District of Massachusetts.]

THE SHAW RELIEF VALVE COMPANY v. THE CITY OF NEW BEDFord.

Decided March 12, 1884.
28 O. G., 283.

1. From a comparison of the section of the statutés relating to patents it is made clear that a patent-right, like any other personal property, is understood by Congress to vest in the executors and administrators of the patentee, if he has died without having assigned it.

2. "Legal representatives" in the patent act means executors or administrators. 3. A question of title raised by demurrer cannot be disposed of by amendment.

LOWELL, J.:

This bill is brought upon two patents, and the demurrer of the City of New Bedford raises several objections, all but one of which, it is agreed, can be, and may be, removed by amendment. A question which cannot be thus disposed of, and which has been argued with earnestness, and is pending in at least one other circuit, is whether the complainant's title to an undivided part of one of the patents is sufficient. It seems that this title comes through an administrator of the patentee; and the defendant contends that the grant of a patent, by Revised Statutes, section 4884, is to the patentee, "his heirs and assigns," and that by force of these words a patent descends directly to the heirs, without the intervention of the administrator.

This is a new and somewhat surprising proposition. It has never been doubted before that a patent is personal property, which follows the ordinary course, and goes to the executor or administrator in trust for the next of kin. The cases take this for granted, and when any question has been mooted it has had reference to the due qualification of the executor or administrator, or something of that sort, as in Rubber Company v. Goodyear (9 Wall., 788).

The text-writers treat of patent-rights as personal property which goes to the executor. (Norman on Patents, 145; Schouler, Executors, sec. 200.) The defendant argues that the statute of 1870 changed the 9373 PAT-19

rule by omitting the words "executors and administrators" from what is now section 4884, intending to make a sort of real estate of this incorporeal right. He has not argued that the widow can be endowed of it, but I suppose that will follow.

A grant of personal property to a man and his heirs, without further qualification, means to him and his next of kin, according to the statute of distributions. (4 Kent Com., 537, 5th ed., note d and cases; Vaux v. Henderson, 1 Jac. & W., 388 n; Gittings v. Mc Dermott, 2 Myl. & K., 69; Re Newton's Trusts, L. R., 4 Eq., 171; Re Gryll's Trusts, L. R., 6 Eq., 589; Re Stevens' Trusts, L. R., 15 Eq., 110; Re Thompson's Trusts, 9 Ch. D., 607; Houghton v. Kendall, 7 Allen, 72; Sweet v. Dulton, 100 Mass., 589.) Such a grant is simply a limitation of an estate of inheritance, having no reference one way or the other to the administrator. He takes in trust for the next of kin, because the estate is inheritable. The acts of Congress have not been drawn with technical accuracy in this particular. Down to 1836 the word "executors" was omitted, and patents were issued to the patentee, "his heirs, administrators, or assigns" (Stat. April 10, 1790, sec. 1; 1 Stats., 110; Stat. Feb. 21, 1793, sec. 1; 1 Stats., sec. 321); but no one ever doubted that executors would take the title. In 1836 "executors" were added, and the grant was to the patentee, his "heirs, administrators, executors, or assigns." (Stat. July 4, 1836, sec. 5; 5 Stats., 119.) In 1870 "administrators" and "executors" were left out. This omission is not significant. The law was not changed by it, the proof of which is that executors and administrators are mentioned as taking title in five of the sections of the Revised Statutes which re-enact the law of 1870. Thus, by section 4896, if an inventor dies before a patent is granted the right to obtain it devolves on his executor or administrator, in trust for his heirs at law-that is, his next of kin-as we have seen, or to his devisees, as the case may be, which, technically, should be legatees. By section 4898 every patent shall be assignable, and the patentee and his assigns, "or legal representatives," may, in like manner, grant, &c. Now, legal representatives usually means executors or administrators (Price v. Strange, 6 Mad., 159; Re Gryll's Trusts, L. R., 6 Eq., 589), and it has that meaning in this statute, for by section 4896, above mentioned, by which the executors or administrators are authorized to apply for a patent, it is provided that when the application is made "by such legal representatives" the oath shall be varied to meet their situation. By section 4900 it is made the duty of all patentees and their assigns and "legal representatives" to do certain acts by way of informing the public that the article they make or sell is patented. By section 4922, when a patente has innocently claimed more than his invention, he and his executors, administrators, and assigns may maintain a suit on the patent, notwithstanding the mistake. By section 4916, if a patentee is dead, and there is occasion for a reissue, it shall be made to his executors or administrators.

From a comparison of these sections it is made clear that a patentright, like any other personal property, is understood by Congress to vest in the executors and administrators of the patentee, if he has died without having assigned it. It was argued that Congress may have intended that a patent should not be assets for the payment of debts, and have expressed this intent by the use of the word "heirs"; but they have not only not exempted patent-rights from being taken for the debts of the owners, but have expressly required that they should be so taken by assignees in bankruptcy. (Rev. Stats., sec. 5046.) And the Supreme Court have failed to discover such an intent, for they hold that by due process in chancery a patent-right may be applied to such payment. (Ager v. Murray, 105 U. S., 126.) Indeed, section 4898 is

decisive of this question, for it expressly provides that the legal representatives of the patentee may assign. Even if this were a mere statutory power, the authority would be sufficient; but it is, of course, a recognition of a fact, and not a new grant of power. Demurrer overruled.

[United States Circuit Court-Eastern District of New York.]

KIMBALL v. CUNNINGHAM.

Decided April 24, 1884.

28 O. G., 284

Letters Patent No. 149,896, issued to Halmeagh Van Geasen, on April 24, 1874, construed and held not to be infringed.

Mr. Townsend Dyett and Mr. Einstein for the complainant.

Mr. W. C. Witter for the defendant.

BENEDICT, J.:

This case comes before the court upon a motion for a preliminary injunction to restrain the defendant from making and selling a certain form of tag or ticket used for ticketing cloths and other similar fabrics, and alleged to be an infringement upon a patent, No. 149,896, issued to Halmeagh Van Geasen, April 21, 1874, and owned by the plaintiff.

The plaintiff's patent is for an invention, the object of which, as stated in the patent, is to provide a ticket capable of being more readily attached than those heretofore in use. The invention is stated to consist in constructing tickets with metallic points at the back, which, upon being pressed against the fabric, will pass through the same, and by being bent. back of the cloth will effectually secure the ticket to the cloth in a neat and strong manner. The claim reads thus:

As an article of manufacture, a size or quality mark or ticket, composed of two layers of paper, between which is secured the head or bridge of the fastening-springs c, which extend through the bottom layer, and are adapted to fasten the ticket to a fabric.

The invention here sought to be secured does not, as insisted by the plaintiff (Kimball) consist in the employment of a tag having soft metallic prongs securely fastened to the tag so as to attach it readily to the goods. If that were the invention, the patent (Kimball's Van Geasen patent) would be void for want of novelty. What the patent purports to secure is the method of attaching the fastening-springs or staple to the tag. No more is asserted in the claim, and the patent is limited to the method there described. The novelty of the invention thus sought to be secured consists in the method adopted for securing the staple to the tag. The distinctive feature of this method is constructing the tag of two layers of paper or other similar material and placing the bridge or the head of the staple between the layers, which are then pasted or otherwise fastened together. The patent is by its terms confined to a ticket having a tag which is composed of two layers fastened together, and a staple which is secured to the tag by placing its bridge or head between the layers of the tag.

The defendant makes a ticket having a staple similar to the staple of the Van Geasen ticket, secured to a tag by an eyelet, the lips of which clamp the bridge or head of the staple to the under side of the tag. Such a ticket does not, in my opinion, infringe the plaintiff's patent, for the reason that a tag composed of two layers is not necessary in the defendant's tag, and the staple is not secured to the tag by placing the staple between any layers of the tag. Clamping the head of the staple to the under side of the tag is not, in my opinion, equivalent to securing the head of the staple by placing it between the layers of the tag and pasting the layers together.

Motion for injunction denied.

[United States Circuit Court-Northern District of New York.]

FIELD v. IRELAND ET AL.

Decided April 5, 1884.

28 O. G., 284.

1. A decision in a prior case, construing the patent, held to be controlling. 2. Where the form of the defendant's device is different from the complainant's its mode of operation is different, and the result of its operation is somewhat different, it cannot be said to be the same or substantially like the complainant's invention, and there is no infringement.

Mr. Eugene N. Elliot for the complainant.

Mr. James M. Dudley for the defendants.

COXE, J.:

The complainant has a patent for an improvement in glove-fastenings. The claim is in the following words: