But it is not material to the argument whether the statement is strictly accurate or not. It remains true that upon dynamos of uniform field each device prevents spark and maintains constant current, while upon dynamos of irregular field neither device can be succesfully employed unless provision is made for a variable spread of the commutator-brushes. With that provision it is agreed that the device of the second patent is effective for both purposes, and, though questioned by counsel, (hesitatingly,) we are convinced that the same is true of the device of the first patent.

The statement that

if, instead of being in the accessory current, the (controller) magnet be transferred to the main current, or a shunted portion thereof, exactly the same kinds of operation, effected in the same way and by like adjustments, must go on

is criticized and disputed, but not upon grounds which are new and unconsidered or which seem to us to affect the essential truth of the proposition. Identity of operation and of adjustments, it is to be observed, is not alleged, and of the differences insisted upon our views are sufficiently developed in the original opinion.

It is said that the course of the case and the opinion of the court have developed an importance not apprehended in the beginning to the question whether it was known

prior to the discovery of the fact by Thomson and Houston that the current of a dynamo could be maintained at a constant value under variations of load by movement of the brushes;

and, assuming that the court was misled in that respect, counsel have restated and elaborated at great length their discussion of the difference between shifting the brushes to change the current and shifting them to maintain constancy of current in the outer circuit. The question is confessedly a collateral one only, and without attempting to restate or summarize what has been said about it we are content to say simply that when the opinion in the case was written the court had the same understanding as now of the respective views of counsel in regard to it. The objections made to the last sentence of our opinion are answered already. If the current-regulator was not covered and protected by the first patent, it is because the claims are too narrow to cover the entire invention shown; but on the proofs in the record we think it clear that some of the claims are entitled to a construction broad enough to cover the supposed invention of the second patent. It would certainly be unreasonable to say that infringement of the first patent could have been avoided by proportioning the parts of the device whether done intentionally or accidentally, so as to admit of the pas sage of an effective part of the main current through the accessory circuit, and yet, as counsel for the appellant have been constrained to contend, when so adjusted the device is covered by the second patent. In other words, at least one form of construction of the first device

exemplifies the second. It is therefore beyond dispute, as originally stated, that to uphold the second patent would be

an unwarrantable prolongation of the just monopoly conferred by the first patent. The petition is denied.

[U. S. Circuit Court-Southern District of New York.]

COVERT v. TRAVERS BROTHERS COMPANY.

Decided December 9, 1895.

75 O. G., 349.

1. EFFECT OF PRIOR DECISION-EX PARTE INJUNCTION.

A decision granting a preliminary injunction, where no counsel appeared for defendant, though some affidavits were submitted in his behalf, does not preclude the court in a subsequent suit against a different defendant from considering anew the question of the validity of the patent.

2. SAME-PLEading-Demurrer to Bill.

A patent manifestly invalid upon its face may be so declared on demurrer to the bill; but this power should be exercised with the utmost caution and only in the plainest cases. All doubts should be resolved in favor of the patent. (Button-Fastener Co. v. Schlochtmeyer, 69 Fed. Rep., 592, followed.)

3. SAME-INVENTION-ROPE-CLAMPS.

There is no invention in simply clamping an open ring of metal around a braided or twisted rope to prevent unbraiding or untwisting.

4. COVERT-ROPE CLAMP-Valid.

The Covert patent, No. 208, 157, for an improvement in rope-clamps, is void on its face as to the second claim for want of invention. The first claim, which is for a described method of connecting two parts of a rope, or two ropes, by clamping the same with one or more open metallic rings under pressure, discloses sufficient evidence of novelty and invention to prevent the same from being declared invalid upon demurrer to the bill.

DEMURRER to bill.

Mr. Charles G. Coe for the complainant. Mr. Arthur er. Briesen for the defendant. COXE, J.:

The patent in suit, No. 208,157, was, in 1885, before the court on a motion for a preliminary injunction. (25 Fed. Rep., 43.) As the facts are now recalled the proceedings on that motion were ex parte in character. No one represented the defendant at the argument, although some affidavits on his behalf were submitted. That decision does not preclude the court from considering the arguments which are now presented. That a patent manifestly invalid upon its face may be so declared on demurrer is now settled beyond dispute. The authorities. bearing upon this proposition will be found collated in the recent case of Button Fastener Co. v. Schlochtmeyer, (69 Fed. Rep., 592.)

H. Doc. 354-21

It is also true that this power should be exercised with the utmost caution and only in the plainest cases. If there is doubt, it should be resolved in favor of the patent. (New York Belting and Packing Co. v. New Jersey Car Spring and Rubber Co., C. D., 1891, 253; 54 O. G., 135; 137 U. S., 445; 11 Sup. Ct. Rep., 193; Blessing v. Copper Works, 34 Fed. Rep., 753; Eclipse Co. v. Adkins, C. D., 1890, 546; 53 O. G., 1407; 36 Fed. Rep., 544; Lalance & Grosjean Co. v. Mosheim, 48 Fed. Rep., 452; Standard Oil Co. v. Southern Pacific Co., C. D., 1890, 544; 53 O. G., 1259; 42 Fed. Rep., 295; Hanlon v. Primrose, C. D., 1893, 544 ; 65 O. G., 134; 56 Fed. Rep., 600; Drainage Co. v. Englewood, 67 Fed. Rep., 141; Goebel v. Supply Co. 55 Fed. Rep., 925; Failey v. Talbee, 55 Fed. Rep., 892.)

The patent, granted in 1878, contains two claims, as follows:

1. The herein described method of connecting one part of a rope adjacent to another part, or the ends of two ropes, by clamping the same with one or more open rings of metal under extreme pressure, as set forth.

2. One or more open rings clamped around a braided or twisted rope under pressure, to prevent unbraiding or untwisting, as set forth.

The second claim is for a metallic open ring clamped around a rope to prevent untwisting-in short, for a ring clamped around a rope. It is difficult to perceive how invention can reside in this claim.

The patent itself recognizes the "well-known idea of twisting a wire around a rope," and many devices-such as corset-lacings, shoestrings, and whip stocks-naturally occur to the court where similar means have been used to produce similar results. The only object sought to be obtained by the use of the ring of this claim is to prevent untwisting or unbraiding. The split tube of the old corset-lace does that. There is nothing in the patent limiting the claim to ropes of large diameter. In fact, the untwisting or unraveling feature is made to apply to "the ends of single cords."

One who should cut. off a section of the old split. tube, so that it would be a ring rather than a tube, and clamp it around a corset-lace to perform precisely the same office as the tube, though less effectually, would have every element of the second claim.

Untwisting was prevented in the old devices by clamping a split tube around the end of the cord or by winding it with wire or twine. The patentee accomplished the same result-untwisting-by substituting an open ring for the old devices. It was a mere workshop expedient that might have occurred to any one. It did not involve invention. An entirely different proposition is, however, presented by the first claim. It is for the described method of connecting two parts of a rope, or two ropes, by clamping the same with one or more open metallic rings under extreme pressure. There is nothing suggested in the prior art that anticipates this claim. Certainly the court cannot say that it was not new in 1878. The court may take judicial notice of the old methods of looping and splicing ropes by winding and interweaving the strands, and if the statement of the patent be true that the parts when clamped as described "cannot separate or have any endwise

draw" it is manifest that the patented method is an improvement upon the old methods.

It is argued that the claim is void as covering merely the function of a clamping-machine; but this proposition is not so obvious as to induce the court to hold the claim bad on demurrer. The court cannot say that anything existed prior to July, 1878, which would anticipate or defeat this claim. The proof may show that ropes looped or spliced by the rings of the patent possess elements of strength and durability unknown before. It is enough that the trial may result in a decree for the complainant.

As the bill states a cause of action, it follows that the demurrer must be overruled, with leave to the defendant to answer within twenty days.

[U. S. Circuit Court-Eastern District of Pennsylvania.]

HARDWICK v. MASLAND et al.

Decided December 26, 1895.

75 O. G., 350.

1. HARDWICK-Carpet FABRIC-INFRINGED.

Claim 1 of Letters Patent No. 382,157, granted May 1, 1888, to Harry Hardwick, for carpet fabric, Held to be infringed.

2. INFRINGEMENT-PRIMA FACIE PROOF OF-PATENTED IMPROVEMENT.

A contention that defendants' device being patented is prima facie proof that it does not infringe complainant's patent, and that therefore it is not competent for the court upon inspection of the patent alone to adjudge infringement, might be sustained in some cases; but it cannot be in this one, where the patent set up by defendants is manifestly for an alleged improvement upon complainant's invention, the use of which it necessarily involves.

Mr. George J. Harding for the complainant.

Mr. Henry E. Everding for the defendants. DALLAS, J.:

This is a suit upon Letters Patent No. 382,157, dated May 1, 1888, to Harry Hardwick, for "carpet fabric." The only claim involved is as follows:

1. A two-ply ingrain carpet fabric having the weft-threads divided into sets of five, of which three are in one ply and two in the other, all substantially as set forth.

The controversy as to infringement, which is the only one, is presented in an unusual but not unprecedented manner. The answer denies, in general terms, that the defendants have infringed, but specifically admits

that they have manufactured a fabric according to the invention as set forth and described or contained and patented in and by the Letters Patents No. 497,294, granted and issued to one Samuel J. Acheson, of Plainfield, N. J., under date of May 16, 1893, for an improvement in ingrain carpet fabrics.

If this specific admission conflicts with the general denial, the former controls and nullifies the latter. Hence two questions arise: First. As

matter of fact, does manufacture under the Acheson patent involve use of the invention covered by the first claim of the Hardwick patent? Second. As matter of law, may the court determine the preceding inquiry by its own unaided comparison of the two patents?

First. Comparative examination of the Acheson and the Hardwick patents makes it quite evident that the fabric described in the former embodies the invention covered by the first claim of the latter. In the specification of the Hardwick patent it is stated:

One object of my invention is to provide for greater variety than usual in the coloring of a two-ply ingrain carpet fabric, and another object is to attain this result without unduly increasing the expense of the fabric. I attain the first of these objects by increasing the number of weft or filling threads in the set from four to five, two threads of the set appearing in one ply and three in the other ply.

In the diagram, Fig. 1, W, R, O, D, and B represent five weft or filling threads, colored, say, white, red, olive, drab, and black, respectively.

One of the advantages of my invention is shown in Fig. 2, the pattern there illustrated having a groundwork of solid color with figure containing a spot of ordinary ground of two colors, the effect of solid color being obtained by using an extra weft of the same color as one of the regular ground-wefts of the fabric.

Solid colors in the figure may, as will be evident, be obtained by using an extra weft-thread of the same color as one of the regular figuring-wefts.

In Fig. 1 the sets of threads are separated by dotted lines; and it should be understood that the arrangement of threads in any set may be repeated any desired number of times in a pattern, the diagramu simply showing different ways in which the threads can be combined without any attempt being made to show the actual succession of threads in a definite pattern.

These extracts relate to and make perfectly clear that object of the Hardwick patent which is the subject of the first claim, and to its "second object," which is the subject of a claim not sued upon, no reference need be made. Neither is it necessary to recapitulate all that is contained in the Acheson patent, from which it appears that it also proposes

a two-ply ingrain carpet fabric having the weft-threads divided into sets of five, of which three are in one ply and two in the other, all substantially as set forthin the Hardwick patent. It will suffice to mention that in the Acheson specification it is said, in describing one of the figures representative of his alleged invention, that

each set comprises

five wefts, whereof two are in the face ply or weft

plane and three whereof are in the back ply or weft plane.

This language is substantially the same as that of the claim in suit. That it describes the same thing cannot be doubted.

Second. The point more strenuously urged on behalf of the defendant is that

the fact that defendants' fabric is patented is prima facie proof that it does not infringe complainant's patent;

and that therefore it is not competent for the court upon inspection of the patents alone to adjudge infringement. This contention might be sustained in some cases, but it cannot be in this one. In this case each