the invention, and began at once to have a number of molds made for the manufacture of glass shade holders to be used without a chimney, in combination with lamp burners and shades. The success of the sales of the new product was remarkable. From October 9, 1876, to January 9, 1877, the complainaut sold 57,228. During the first year, 1877, the sales reached 361,416, and there was a gradual increase from year to year until 1882, when the yearly sales had run up to 602,556. A few months after the original patent was granted it was surrendered and a reissue obtained, numbered 7,511 and dated February 13, 1877. It stated that the invention consisted in a transparent shade holder, or holder of a material allowing the passage of light, and shade or globe so arranged that an ordinary burner could be used without a chimney. The inventor then made three specific claims, as follows:

1. In a lamp having a burner, the combination of a shade-holder made of material that will admit of the passage of light, and a shade or globe arranged and constructed substantially as described, whereby the burner performs the required functions, without the use of a chimney, as set forth.

2. The shade-holder B, constructed of material that will admit of the passage of light, and provided with a downward y-extending socket, c, and dish-shaped flange d, with rim e, in combination with a globe or shade, C, and burner A, of a lamp, as and for the purposes herein set forth.

3. The combination, in a lamp, of the burner A, having perforated flauge a, and cone b, the shade-holder B, with central socket, c, and a shade or globe, C, substantially as and for the purposes herein set forth.

The question of the validity of this reissue was first before Judge Benedict in the case of Schneider v. Thill (5 Ban. & Ard., 565), and afterward before Judge Blatchford in Schneider v. Lovell (10 Fed. Rep., 666). Both of these learned judges held the reissue to be invalid, and for substantially the same reason-to wit, that the specification did not contain the full, clear, and exact description of the invention that the law requires. After these decisions a second reissue was applied for and secured April 11, 1882, and numbered 10,087. The inventor adds to the drawings of the original patent and the first reissue the drawing of a model, which he numbers 3, and which, he says, corresponds in size, as well as in form and proportions, with the model that was filed with his application for his original letters patent, and further states that the form and proportions of said shade-holder are well adapted for use in carrying out the invention. In this reissue he claims as new—

1. In a lamp, the combination of a kerosene-burner with a transparent shade-holder and a shade, the shade-holder being adapted to rest upon the burner in the place adapted for the ordinary chimney, the shade resting on said shade-holder, and being formed so as to converge from its base toward its top, and the shade and shade-holder together constituting the draft-inducing device for the burner, substantially as set forth.

2. The shade-holder B, constructed of a material that will admit of the passage of light, and provided with a downwardly-extending socket, c, and dish-shaped flange d, with rim e, in combination with a shade, C, converging from base to top, and the kerosene-burner A of a lamp, as and for the purpose set forth.

3. The combination, in a latup, of the burner A, having perforated flange a, and

cone b, the shade-holder B, and socket c, and a shade converging from base to top, substantially as and for the purpose herein set forth.

4. The combination of the shade C, shade-holder B, constructed of transparent material and provided with a downwardly extending socket, c, and dish-shaped flang d, with the cone b, having a flange a, provided with apertures for the admission of air to the outside and inside of the cone, the whole arranged to operate without a chimney, substantially as specified.

Each of these claims is for a combination consisting of various elements, all of which are old except the form and construction of the shade holder, which the inventor claims to be new. He further claims that by their combination he has obtaine" a new mode of operation, or a new and useful result-to wit, a lamp without a chimney, with a suf ficient draft to produce a good light. The present suit is brought on this reissue, and the first question arising is whether the alleged defects of the original patent and the first reissue have been cured in the second. The counsel for the complainant claim that they have been, and base their judgment mainly upon two facts: (1) That the testimony in this suit clearly reveals the sufficiency of the specification of the patent to all persons skilled in the art, and (2) that the last reissue has supplied the defects which the learned Judges Benedict and Blatchford found in the first reissue.

The evidence, which was wanting in the cases before these judges, designates the shade exhibited in the drawing as a student-lamp shade or its equivalent-a shade well known in the art as being large at the bottom, thereby admitting of the reflection of the light downward and outward, and contracted at the top, thereby inducing a draft. The form and proportion of such a shade are well known, and its characteristics are thus described in the last reissue:

It will be observed that the shade C, which is to fit on the shade-holder, converges from its base towards its top, so as to be large at the base and considerably contracted at the top, whereby the upward tending rays from the flame may be mostly intercepted by the shade and be reflected downward and outward around the fount of the lamp, while the equilibrium of the shade upon the shade-holder is such that no means of attachment, other than the flange and rim of the shade holder, is needed to prevent its falling off in ordinary use.

In answer to Judge Blatchford's criticisms of the first reissue, that the proper proportions of the shade-bolder were not stated or shown in the drawings, the complainant caused a drawing to be made of the orig inal model on file in the Patent Office since the first patent was applied for and annexed a copy to the last reissue, and then states that the proportious and form there shown are the best for successfully carrying out the invention. I am of the opinion that in the light which he has thrown upon the subject-matter of the patent by the evidence introduced, and in the fuller specification of the last reissue, he has fairly succeeded in bringing out the true character of the invention-to wit, a useful device by which the shade holder becomes the base of the chimney and the shade its top, retaining all their own functions in the lamp, and dis pensing with a separate chimney.

The remaining question is one of more difficulty. Does the testimony

show that the defendant has infringed any of the claims of the reissue? It is the general law in regard to combination claims that all the elements that make up the combination or their equivalents must be used to constitute an infringement.

The defendant is a glass-manufacturer, and the charge against him is that he has manufactured and sold the transparent glass-shade holder which is one of the constituents of the complainant's combination, and the only one that is claimed to be novel and that characterized Votti's invention. As there is nothing in the reissue which claims this shadeholder except in combination with the other elements, it is clear that the making and selling of it standing alone is not an infringement of any of the claims. See Saxe v. Hammond (1 Ban. & Ard., 632). But the complainant insists that where there are several tort-feazors, each contributing elements which are intended to be used in combination, they are all liable as infringers, and that a suit may be maintained against all or each one separately.

The allegations of the bill of complaint as to the infringement of the defendant are:

(1.) That certain shade-holders made and sold by the defendant are only used in Votti's combination, and are not applicable to or useful for any other purpose; and

(2.) That the defendant knew this fact, and made and sold said shade holders with the knowledge that they could be used by the purchaser thereof in constructing said patented combination in infringement of said patent, and that he made and sold them for that purpose.

In regard to the first allegation, the complainant's expert, Brevoort, and his agent in patent matters, Hanford, both explicitly state that they know of no other uses to which the shade-holder made by the defendaut and complained of by the complainant can be applied, except in combination with the other devices of the Votti patent, and that they never heard of their being put to any other use. This testimony stands uncontradicted except by the suggestion of defendant's counsel of possible uses to which such shade-holders might be applied. I recollect nothing from the defendant himself or from any of his witnesses which shows, in fact, any other application. As to the second allegation, referring to the intent of the defendant in his manufacture of the shade-holder, I think it is fairly to be inferred (1) from the conversations of the defend- ́ ant with Hanford, (2) from his attempts to get from the complainant an exclusive right to manufacture the shade-holders, (3) from the tenor of the circulars that he prepared and sent out, and (4) from his absolute silence when upon the witness stand in regard to any other use for which he manufactured them, that his intent in making and selling them was to have them used in combination with the other devices of the complainant's patent. The law in such cases has been quite definitely settled. The first case to which I would allude is the leading one of Wallace v. Holmes (5 Fish, 37). The patent there was also for an improved lamp consisting of the combination of several parts. The alleged infringement was for the manufacturing and selling one of the elements

of the combination-to wit, the burner. It was used in combination with a chimney, and the purchasers of the burners were expected to go into the market and procure the chimneys from other manufacturers. Judge Woodruff held that the defendants could not protect themselves by invoking the well settled rule that where a patent is for a combination merely it is not infringed by one who uses one or more of the parts, but not all, to produce the same results, either by themselves or by the aid of other devices; but that if one party consented to make the burner and another party the chimney, and each was sold to be used with the other, the parties must be deemed to be joint infringers of the patent, and that each was liable for all the damages. The learned judge drew the inference of an actual concert between the parties from the nature of the case and the distinct efforts of the defendants to bring the burner in question into use, which could only be done by adding the chimney. He admitted that he found no proof that the defendants had made an actual prearrangement with any particular person to supply the chimney to be added to the burner, "but," says he, "every sale they make is a proposal to the purchaser to do this, and his purchase is a consent with the defendants that he will do it or cause it to be done. The defendants are therefore active parties to the whole infringement, consenting and acting to that end, manufacturing and selling for that purpose."

The principle of the above case, after careful consideration, was indorsed by this court in Turrell v. Spaeth (8 O. G., 986); by Judge Shepley in Saxe v. Hammond (1 Ban. & Ard., 652); by Judge Lowell in Bowker v. Dows (3 Ban. & Ard., 518), and again by the same learned judge in Richardson v. Noyes (10 O. G., 507).

Let a decree be entered for the complainant, with costs.

[United States Circuit Court-Southern District of Iowa.]

CHERRY v. SWAB ET AL.

Decided June 10, 1884.

29 O. G., 275.

CHERRY-CANS FOR TRANSPORTATION OF CREAM.

Letters Patent No. 222,814, granted to John G. Cherry December 23, 1879, reissued July 19, 1881, No. 9,811, for improvement in cans for the transportation of cream, held to have been anticipated.

[This is a bill in equity to restrain the respondents from the infringement of the complainant's patent for an improvement in cans for the transportation of cream and milk, and for an account of profits and damages.]

Messrs. Munday, Evarts & Adcock and Messrs. Stoneman, Ricket & Eastman for the complainant.

Messrs. Goode, Wishart & Phillips for the respondents.

LOVE, J.:

It is manifest that in the transportation of cream and milk in cans from the farm to the factory for the purpose of being made into butter it is important to prevent the liquid from dashing about the vessel and becoming more or less churned in the course of transit. Long before the complainant's patent various contrivances had been adopted to accomplish that purpose. Among these was the plain float fitting loosely inside the can and resting on the surface of the milk or cream. The pressure of the float prevented to a certain extent the agitation of the liquid below. This float had, usually, a central ventilating hole or tube. It was generally in use prior to the plaintiff's invention, and it is the can provided with this float upon which the complainant's can is claimed to be an improvement. The plain float was quite effective so far as the preventing of the churning was concerned, but it was inconvenient and objectionable from the fact that it had to be removed from the can whenever any quantity of cream, however small, had to be poured into the can. This not only caused delay, but it exposed the cream to contamination from dust, dirt, &c. Besides, in very cold weather it is obvious that the cream adhering to the sides of the float would become frozen so as to prevent the float from performing its office within the

cau.

The plaintiff's alleged invention consists of a can combined with a funnel-shaped float resting on the surface of the liquid, and so fitted to the can as to rise and fall in the vessel with the liquid. The upper surface of the float is concave, resembling closely the shape of an ordinary tin spittoon. There is a hole in the center of the float through which the cream or milk is poured into the can. Thus the complainant claims that the combination unites four elements: (1) the can-body; (2) the float; (3) the concave top or funnel; (4) the opening leading from the funnel through the float. The complainant makes no claim to the invention of any of these parts or elements: They were all known prior to the plaintiff's alleged invention. But the complainant claims that he was the first to bring them into combination to produce the result attained. The complainant insists that by means of his combination-can the gathering and transportation of milk and cream can be accomplished with greater dispatch, less inconvenience, and better results than by means of any can used for that purpose prior to his invention. But the real difficulty in the solution of this controversy grows out of the question of novelty. The respondents give evidence showing that many years before the complainant's invention a can was known and used in the State of New York substantially the same in its elements and purposes as the complainant's can. It appears by the evidence that this New York can was in extensive use, and that it combined all the essential parts or elements of the complainant's alleged invention. The models exhibited, together with the evidence, show that the four elements which the complainant's able and learned counsel claim as essential to