[United States Circuit Court-Northern District of New York.] CRANDAL ET AL. v. THE PARKER CARRIAGE GOODS COMPANY. Decided July 7, 1884. 28 O. G., 369. 1. A device which could not be used as a substitute for the patentee's invention without the exercise of invention is not an anticipation of it. 2. Where it can be seen that the patentee seeks by apt words of description to secure what he has honestly invented and nothing more, the court should hesitate to regard with favor the accusation now so freely made against reissued patents. Mr. Neri Pine and Mr. Charles M. Stone for the complainants. COXE, J.: The complainants are owners of reissued letters patent granted to Charles H. Davis, for an improvement in box-loops for carriage-tops. The validity of the patent was adjudicated in the case of Crandal v. Watters (Blatchf. C. C. R., 97). Although the issues presented are not in all respects identical, the reasoning of that case must determine the present controversy. It is argued that the patent is void for want of novelty, and several patents, which the defendant asserts were not before the court in Crandal v. Watters, are introduced in support of this defense. The patent issued to E. M. Blodgett, July 25, 1865, for an improvement in gaiter-fastenings, and now for the first time adduced, describes an apparatus bearing some similitude to the complainants' invention. The devices of the other patents referred to are dissimilar in many important particulars. The object of the Blodgett invention is to apply the staple-fastenings of cloth gaiters to the flap of the same in such a manner that the cloth about these fastenings will not fray out and present an unsightly ap pearance. To one of the gaiter-flaps. is stitched a thin strip of spring metal with pointed ends slightly projecting. To the other flap a strip of thin metal is attached, having flat staples riveted to it or fastened with tangs. These staples receive the pointed ends of the strip on the opposite flap. In size, shape, object, position, and in the mode of its operation the Blodgett apparatus is unlike the one described in the pat ent of the complainants. The former would not, it is thought, suggest the latter to a skillful mechanic. To apply the words of Judge Blatchford: This could not be used as a substitute for the plaintiff's loop without invention. It 18 easy after the desired thing is obtained to see how an old thing could have been adapted or altered. Again, it is urged that the patent is void because improperly reissued. The court in the Watters case passed upon this question also; but it is insisted that as the decision was rendered before the new doc trine of Miller v. The Brass Company (104 U. S., 350) was promulgated, a different view should now be taken. I cannot think so. The opinion of Judge Blatchford is very clear and positive upon this question. He says, page 100: The claim of the original patent was so framed as to seem to require that the loop should be actually applied to a carriage-top in order to infringe. It also required that the metal plate C should be used in such application. Makers of loops were not makers of carriages, and it was obvious that the invention was really of the loop ready to be affixed, and that the inventor was entitled to have a claim which would reach the maker of the loop. Besides, even if the claim of the original would have extended to the maker of the loop, it might have been questioned whether it would reach him when he made a loop without the plate C; and it was plain that that was only a stiffening or strengthening plate, an adjunct, making the article better perhaps, but yet not of the essence of the invention. The case was therefore one for a reissue. It was no departure and no new matter to make the use of the * plate C optional. With the patent thus construed the doctrine of Miller v. The Brass Company has little application. Where it can be seen that the patentee seeks by apt words of description to secure what he has honestly invented and nothing more, the court should hesitate to regard with favor the accusations now so freely made against reissued patents. The evidence of infringement might have been more definite and certain; but I am of the opinion that it is sufficient. The complainants are entitled to the usual decree. (United States Circuit Court-Southern District of New York.] PENTLARGE v. NEW YORK BUNG AND BUSHING COMPANY ET AL. Decided May 16, 1884. 28 O. G., 370. Where two patents cover distinct things they do not interfere within the contemplation of section 4918 Revised Statutes, even though one inventor takes the ivention of the other to improve upon, and thereby infringes the patent of the latte Messrs. Broadhead, King & Voorhies for the complainant. Mr. Wyllys Hodges for the defendant. WHEELER, J.: The orator owns Reissue Patent No. 10,175, dated August 1, 1882, the original of which was No. 192,386, dated June 26, 1877, granted to himself and Philipp Hirsch for a vent-bung. The defendants own Patent No. 203,316, dated May 7, 1878, and granted to George Borst for an improvement in bungs. This bill is brought under section 4918 United States Revised Statutes to have the latter patent declared void. There were bungs having a hole nearly through them, leaving a thin web of the wood on the inside, to be driven through in venting the cask, as described in the patent of Rafael Pentlarge, No. 148,747, dated February 18, 1874. The orator's patent is for a bung with a hole on each surface and a web between the holes in the interior of the bung. The defendant's patent is for a bung like Rafael Pentlarge's, with a core left on the web by a groove cut around it, leaving it ready for removal, or for a bung like the orator's with a like core on one or both sides of the web. The orator is not, aud is not claimed to be, entitled to any relief here, unless his patent and the defendant's interfere. Mowry v. Whitney, 14 Wall., 434. The patents are each good for the difference only between the bungs described in them and those in existence before. Railway Company v. Sayles, 97 U. S., 554. The difference between the orator's bung and Rafael Pentlarge's was the having the web in the interior instead of at the inner surface, and his patent covers that. The differ. ence between the defendant's bung and the others is the having the core to strengthen or protect the web, and their patent covers that. These differences are not the same, but distinct, and neither covers the same thing as the other, and therefore they do not, as now viewed, interfere. The practice of the invention of the latter may infringe upon the former, and may not, but if it does, it will not do so because the patents interfere, but because the latter takes the invention of the former to improve upon. Let the bill be dismissed, with costs. [United States Circuit Court-Southern District of New York. J REAY . BERLIN & JONES ENVELOPE COMPANY. Decided June 10, 1884. 28 O. G., 370. Where a claim in a patent is for a certain arrangement of elements which perform a distinct and independent result in a machine, a change of these parts changes the patented arrangement, and the machine becomes pro tanto a new machine, and is out of the reach of the patent. Mr. Arthur v. Briesen for the orator. WHEELER, J.: The second claim of the orator's patent for improvements on envel ope-machines is for the arrangement of the table over the conveyer, so that the blanks are held even and in place by the table while being carried by the conveyer to the creasing-box. The defendant was enjoined not to use several machines having this arrangement, made in violation of that claim of the patent. 19 Fed. Rep., 310. The table and con veyer were changed and the use continued. These proceedings are in9373 PAT-20 stituted against that use as a contempt of the injunction. The question is whether that claim covers any more of the machine than the table and conveyer. The defendant was in good faith advised that it did not, and continued the use in the assertion of supposed rights without intending to violate any order of the court. The orator claims that the claim covers the parts which operate in connection with the conveyer and table. The creasing-box was old. The blank is made ready to be taken by the conveyer in the defendant's machines by contrivances different from the orator's. The blanks, when ready, were to be taken to the creasing-box. This claim was for the arrangement of mechanism to accomplish that object. When the blank reaches the creasing-box another operation upon it begins. The table and conveyer finish with each blank when it arrives there, and have nothing to do with the next operation upon it, which is to crease it. The arrangement of the table over the conveyer to steady the blank while on the conveyer affects nothing but the working of those two parts. So when those parts were changed the patented arrangement was changed, and the machines became pro tanto new machines made out of the reach of the patent. The motion is denied. [United States Circuit Court-Southern District of New York.] BRUSH ET AL v. CONDIT ET AL. Decided July 12, 1884. 27 O. G., 451. 1. When suit is brought on two patents, but after testimony is taken in respect to one of them the plaintiffs make a motion for leave to discontinue so much of the bill as relates thereto, Held that the decree should be for dismissal, with the condition that the evidence taken by the defendants in relation to the patent may be stipulated into any future suit between the same parties. 2. A device which was used for about two and one-half months only, and was then laid aside, Held to be an anticipation of a patent when the use was not for the purpose of testing the device, but was a public and practical one, with as much success as was reasonable to expect at that early stage of a particular art. 3. It is proper to disclaim one figure of aʼdrawing and retain another figure which illustrates a distinct device all of whose features are clearly described, although the distinctive principle of the invention is neither known nor stated. Mr. George H. Christy, Mr. Causten Brown, and Mr. E. N. Dickerson for the plaintiff's. Mr. Edmund Wetmore and Mr. Chauncey Smith for the defendants. SHIPMAN, J.: This is a bill in equity brought by the owner and the exclusive licensee of two letters patent to Charles F. Brush, one, granted October 23, 1877, for an improvement in illuminating-points for electric lights, and known as the "carbon patent," and the others reissued May 20, 1879, having been originally granted May 7, 1878, for an improvement in electric lamps, and known as the "clamp patent," charging the defendants with the infringement of each patent. The bill was filed December 3, 1880. The defendants were charged with infringing the second claim of the carbon patent and the eight claims of the clamp patent, except the fourth and the eighth. Testimony was taken and closed on both sides in respect to the carbon patents, but the plaintiffs, after the cause was set down for hearing, gave notice to the defendants that they would move for leave to discontinue so much of the bill as relates thereto. The decree should be for dismissal, upon the plaintiffs' motion, of so much of the bill as relates to said patent, with costs. As this does not amount under the practice in the Federal courts to a dismissal upon the merits (Badger v. Badger, 1 Cliff., 237), the decree should contain the condition that the evidence taken by the defendants in relation to the patent may be stipulated into any future suit upon the same patent by the plaintiffs against the defendants, or the company which has defended this suit. The preparation of the case relating to the clamp patent was made on both sides with great and exhaustive care and learning and at large expense, and as a result the issues were much simplified by the disclaimers which the plaintiffs filed during the process of the testimony, and which will be hereafter recited. An automatic electric-arc lamp first establishes an electric arc, and then, as the electrodes are consumed, regulates the arc by automatically controlling the distance between the carbons, or rather by enabling the strength of the current and the length of the arc to mutually control each other. The automatic lamps which contain this principle of the mutual control of the length of the arc and the strength of the current are divided, says Mr. Pope, one of the defendants' experts, into two classes: In the first class a positive motion of one or both of the electrodes, causing them to approach or recede from each other, as the case may be, is derived from clock-work mechanism impelled by a spring or its equivalent, the direction of the motion to be communicated to the electrodes being determined by the greater or less attractive force of an electro-magnetic apparatus, included in the electric circuit, of which the luminous arc forms a part. In the second class the clock-work, or other extraneous power, is dispensed with, and the necessary movements are effected solely by the action of the electric current itself. The electrodes tend to move toward each other at all times under the influence of a constant force, usually that of gravity, although a spring is employed in some cases. This tendency is opposed by the electro-maguetic action, which tends to resist the movement of the electrodes toward each other and to separate them. These opposing forces are designed to be in equilibrium when the electrodes are at a proper distance from each other to produce the maximum development of light with a given electric current. In this general state of the art Mr. Brush was an original inventor of mechanism belonging to the second of these two classes, and thought that his invention was exhibited in two forms, which are described in |