machines, &c. But I do not find in any of them anything which seems to anticipate the complainant's machine.

The device of Augustus Adams in form of construction is almost precisely like that of complainants, except that it revolves in a contrary direction. But when at rest, and without the gearing by which the motion is secured, the two devices would strike the eye as substantially alike. Defendant also insists that the first claim of complainant's patent is anticipated by the picker-wheels, as they are called, in Augustus Adams's patent; because complainant's claim is for "a series of wings, wheels, or projections, so arranged on a shaft as to revolve in the same direction the corn is running." * And it is argued that the claim to use "wheels" on the shaft necessarily involves the use of wheels revolving over the throat of the sheller, as the picker-wheels revolve in the throat. It may be admitted that the terms used are somewhat unfortunate and may tend to confuse; but the court should never defeat a patent for a mere technical defect, if it clearly appears what the inventor has described and claimed as his invention. It seems to me the word wheels is used in this claim as a synonym for disks. The idea of the person who drew the claim, it appears to me, was that the wings or beaters might have disks on each side to help in thrusting the corn forward when they were used. I think, also, the court might, if necessary to save the patent, reject this word as surplusage, although I do not think it necessary to do so in this case, as the patentee in his specification evidently intends to suggest that some kind of wheels or disks may be fixed upon the shaft to act with the beaters; but this is more in the nature of a suggestion than a specific device by which he is bound to construct his machine.

The principle that it is the duty of the court to uphold and sustain the patent, instead of seeking for reasons to overthrow it, is fully sustained. (Turrill vs. R. R. Co., 1 Wall., 491; Rubber Company vs. Goodyear, 9 Wall., 788; Klein vs. Russell, 19 Wall., 433; Burden vs. Corning, 2 Fish., 477.)

I do not, therefore, find the complainant's invention anticipated by the picker-wheels of Augustus Adams, nor does it seem to me the first claim of the patent should be held void for the use of the word "wheels." As to the infringement: The proof shows that defendant makes and sells a machine-complainant's Exhibit C-with a beater-bar revolving at the entrance to the throat of the machine so as to strike the ears of corn on the under side instead of the top, and so force them into the sheller. And it is claimed by defendant that the function performed by its beater-bar is different from that performed by complainant's.

Defendant calls its beater-bar a device for forcing the feed, while complainant's is only a regulator or device for disposing of the misplaced or overriding ears.

The models of both complainant's and defendant's shellers show that the ears of corn are brought forward nearly above the throat of the

sheller upon an endless apron, and from that dropped or slid down a sharp, almost perpendicular incline, into the throat of the shelling apparatus.

It may, I think, be therefore said that no device for forcing the feed is required in either machine, but what both need is a regulator to pre. vent the ears from overriding each other and choking up the throat; and it is very plain to me that the defendant's beaters under the stream of ears of corn perform the same office, and no other, that is performed by complainant's.

A change of location of a part, in a combination where there is no new function performed by the changed member in its new location, will not evade a patent.

In the case of Potter vs. Schenck, before his honor Judge Drummond (1 Bissell, 515), an infringement was alleged of the Wilson patent for a sewing machine feed. By the defendant's device in that case the feed was secured by the pressure of teeth operating upon the top instead of the under side of the cloth, and in reference to this change of mode in effecting the result the learned judge said:

The question is whether this is a substantial variation, in all or any of its particulars, from the invention of Wilson, as described in his specifications of 1856. I have already stated that it is not, and, as it seems to me, on this ground, viz: that when a mechanic has the leading idea which is developed in Wilson's patent once thoroughly understood and fixed in his mind, he can carry out that idea in a variety of forms simply by the exercise of mechanical ingenuity. Here was a great leading principle in the feed of the machine devised and invented by Wilson. He, to be sure, describes the particular manner in which he carries out that idea; but once get that in your mind, and it is clear that you can carry it out in a variety of forms. This is, it may be said, an ingenious variation or difference by which the idea of Wilson is carried out.

The shoe or main part of the feeding apparatus is not placed beneath the plate upon which the cloth rests, but is on the top of the plate, or, as was contended, and I think with a good deal of force, by the counsel for complainant, instead of being placed as Wilson describes it, it was merely reversed. It is clear that that does not change the principle of the invention, and it is clear, too, as already stated, that a mechanic, once having the idea in his mind, could apply it by adopting a great variety of forms and devices, and this among others.

Nor will the fact that the beater does its work even better in the location where defendant puts it than where complainant puts it, if it does the same work, but only in degree better, make any difference. The result is still the same. The ears are urged into this sheller by the blows they get from these revolving wings, whether they receive them on the top or bottom. And it can make no difference, it seems to me, that defendant's beaters may strike every ear, while complainant's strike only the overriding ones, because, when the strean is running evenly, no blows are needed on either side, and when one ear comes along with another on top of it, it makes no difference whether the under one or upper one is first driven forward into the sheller, so long as that is the function of the beater; whether it strikes the top or bottom, the result is the same, and secured by substantially the same mechanism. Both

these machines force the feed by driving the corn into the sheller and preventing clogging, and both of them regulate it. It therefore seems to me that neither of the points made in the answer is sufficient to defeat the patent; that, as the proof in this case stands, the patent is for a novel and useful invention, and that the defendant by its machine infringes the patent.

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

HARRINGTON vs. LIBBY.

O. G., vol. xii, p. 188.

Before JOHNSON, J.-Trade-Mark-Form of Package.—February, 1877.

Held: That complainant could not legally enjoy the exclusive right to use a decorated tin pail as a collar-box, notwithstanding that he was the first to so employ it, and had registered it as a trade-mark.

J. A. WHITNEY, esq., for complainant.

E. WETMORE, esq., contra.

JOHNSON, J.:

The plaintiff claims to be entitled to the exclusive use of a tin pail with a bail or handle to it, the tin ornamented with a geometrical pattern, and used to contain paper collars. This claim is made not on the ground that he is the inventor and patentee of pails thus made, or of the material used in making them, or of the art of selling collars by giving away a tin pail with them, but the claim is that the pail is a trade-mark, and entitled to protection as such, either by force of the statute of the United States on the subject or by virtue of the general law of trade-marks.

It appears that the ornamented tin which the plaintiff employs is a common article in commerce, and that pails made of tin, ornamented or unornamented, are, and have long been, in use for all such purposes as any one chose to apply them to.

The question whether any one can seize upon such an article and make title to its exclusive use for a special purpose by calling it a trademark, must be far from clear in favor of the claimant. The forms and materials of packages to contain articles of merchandise, if such claims should be allowed, would be rapidly taken up and appropriated by dealers, until some one, bolder than the others, might go to the very root of things, and claim for his goods the primitive brown paper and tow string as a peculiar property. It will be observed that it is not a mark at all which is claimed, but the whole enveloping package, the whole surface of which is covered by the ornamental pattern. There is no name, no symbol, no assertion of origin or ownership. The case strongly resembles that of Payson's indelible ink (Brown on TradeMarks, 186, 187), where the claim was rejected on the ground that if maintained the effect would be to gradually throttle trade,

The case of Moorman vs. Hoge (2 Sawyer, 78), seems to me quite in point. In favor of maintaining the right to the barrel in question, in that case, all circumstances of fact concurred; but the court held that the law did not recognize an exclusive right to an unpatented package, nor permit its assertion.

I concur in the principles maintained in that case, and think the plaintiff has failed to show such a right in the premises as can entitle him to a preliminary injunction.

The motion must be denied.

[United States Circuit Court-Eastern District of Michigan.]

THE DETROIT STOVE WORKS, COMPLAINANT, vs. THE MICHIGAN STOVE COMPANY, DEFENDANT.

O. G., vol. xii, p. 189.

In Equity.-Before H. B. BROWN, D. J.

DECREE OF THE COURT.

This cause having heretofore been brought on to be heard upon the pleadings filed and the proof taken thereon, and the said pleadings and proofs having been read, and Mr. Thomas S. Sprague, of counsel for complainant, and Mr. John Miner, of counsel for defendant, having been heard, and the court having fully considered the said pleadings, proofs, and arguments, it is hereby ordered, adjudged, and decreed that the reissued letters patent granted unto John V. B. Carter and James Duyer, dated March 7, 1876, No. 6,979, are valid; and that the complainant is the owner of said letters patent; and that the defendant has infringed the said letters patent in making, using, and vending to others the improvement in base-burning stoves for heating and cooking, as charged in said complainants' bill of complaint, and that the said complainants are entitled to have a perpetual injunction to restrain said defendants, its agents, servants, and all holding or claiming under or through them, from making, using, or vending, or in any manner disposing of heating and cooking stoves embracing the invention or improvements described in said letters patent, namely:

In combination with a heating-stove, having revertible and base flues, a culinary at" tachment placed directly against the rear flues of said stove, so that the inner wall or front of said culinary attachment is adapted to be heated by direct radiation from the fire-pot, while the other walls of said attachment are heated by the products of combustion in their passage from the base to the exit, substantially as and for the purposes set forth.

And, also

In a heating-stove, and in combination therewith, a culinary attachment provided with suitable openings to allow the products of combustion to be directed from the flues of a revertible-flue heating-stove into the inclosed flue-space surrounding the oven,

placed between the rings, which forms the base of the combustion-chamber proper and the base of the stove, all being effected substantially in the manner and for the purposes described in said letters patent.

And it is further adjudged and decreed that the cause be referred to D. J. Davison, a master of this court, to ascertain and report the number of base-burning stoves for heating and cooking containing the said improvements, or either of them, made and also the number sold by the said defendant since the 7th day of March, 1876, and the damages complainant has sustained, or the use and profits defendant has received, by reason of such infringement since the time last aforesaid.

And upon the coming in and confirmation of the said report that said complainant have a decree and execution for the amount due thereon, and also for the costs in this suit to be taxed.

[United States Circuit Court-District of New Jersey.]

LORIN INGERSOLL vs. MARY TURNER AND WILLIAM TURNER.

O. G., vol. xii, p. 189.

Letters Patent No. 119,705, granted to E. A. Heath, October 10, 1871, declared to be void in view of letters patent granted to William H. Topham, August 2, 1870, for an improvement in spittoons.

The fact that one patent is granted for a cuspadore and the other for a spittoon is of no importance, as the difference is merely of form, and the form itself is old.

The characteristic and valuable feature of both articles being their self-righting quality, arising from their weighted bottoms, the invention remains the same, notwithstanding metal may be substituted for papier maché in their manufacture.

The substitution of sheet metal for less appropriate material involved no invention, and the construction of the cuspadore in three pieces is but obvious mechanical skill.

NIXON, D. J.:

This is a suit in equity to restrain the infringement of Letters Patent No. 119,705, issued to E. A. Heath, on the 10th day of October, 1871, for a metallic cuspadore.

The bill of complainant prays for an injunction, account, and assessment of damages.

The answer denies that Heath was the original and first inventor of the alleged improvement in cuspadores, described and claimed in his letters patent, but that he was anticipated by one William H. Topham, to whom letters patent were granted on the 2d of August, 1870.

The word cuspadore is derived from the Portuguese verb cuspo, to spit; cuspidor, a spitter. The English cuspadore is a spittoon of a peculiar form.

Not much stress, therefore, can be laid upon the fact that Topham calls his patent "an improvement in spittoons," and Heath calls his "an