other sloping holes, were used under similar conditions the latter radiated two-ninths more heat than the former. The distribution of the flame under low pressure is also more even.

The evidence in the case and the illustrations given during the argument satisfy us the Taylor device accomplished a new and useful result in gas-burners, and its simplicity commends instead of condemns it, in our judgment. It is true Taylor did nothing more than incline the holes of the old asbestos-board construction; but where the subject is so volatile and fleeting a one as gas seemingly simple changes of conditions, surroundings, or appliances often accomplish new and farreaching results. So in this case the simple change of the direction of the jet holes has made Taylor's device the success it is shown to be. Such a method never seemed to have occurred to any of the mechanics who have worked with gas fires for years. While the desirability of keeping the flame close to the radiating face-plate was recognized as highly desirable, no one seems to have thought of inclining the holes in an asbestos plate or to have discovered the subtile and desirable effect such inclined holes would exert on the gas.

The character of the result accomplished and the advances made by it, to our mind, stamp Taylor's device as of a patentable character. Nor was it anticipated by prior devices. While the placing of the holes in the upper side of the ridges of the corrugated metallic plates in use at that time brought the flames in close contact to the face-plate, yet these holes were not the holes of the Taylor device or capable of performing the same functional purpose.

In Taylor's burner a board of material thickness is used, and such thickness (a factor absent in the metallic plate) permits the lower side of the external opening to be higher than the upper side of the internal opening. By this means the higher heated portion of the faceplate opening serves as a positive draft to draw the gas to the surface and generally over the entire face-plate. Nor is Taylor's device in the gas log or the burner of the Hewitt patent. While some of the holes in these constructions are inclined, yet such inclination is merely accidental and was not given for any functional purpose. The holes are made normal to the surface in which they are drilled and are given a relatively upward or downward inclination to the side they happen upon. Such a construction would be fatal to the efficiency of the Taylor device. Such mere accidental use of some of the features of an invention without recognition of its benefits does not constitute anticipation. (Topliff v. Topliff, C. D., 1892, 402; 59 O. G., 1257; 145 U. S., 156.)

Upon the whole case our judgment is with the complainant. The respondent's structure is a substantial reproduction of Taylor's device and is clearly an infringement upon the first claim of his patent.

A decree may be prepared.

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

FENTON METALLIC MANUFACTURING COMPANY v. CHASE et al.

Decided March 31, 1896.

76 O. G., 478.

1. HOFFMAN-STORAGE-CASE For Books-VALIDITY-FINAL HEARING.

Letters Patent No. 450,124, granted to Horace J. Hoffman April 7, 1891, for a storage-case for books, not considered as to validity, which question is left for final hearing.

2. VALIDITY INJUNCTION.

Where the validity of a patent is attacked and there is not a clear preponderance in its favor, injunction pendente lite should not issue.

3. INJUNCTION-DECISION OF SUPREME Court of the District of Columbia. A decision of the Supreme Court of the District of Columbia in which no opinion was expressed may have been intended to express the conclusion that for some reason particular defendants should be enjoined, while at the same time it may have been intended to avoid giving the patentee a supporting adjudication.

4. PATENTABle Novelty.

From defendants in privity with former interferants with a patentee a contention that there is no patentable novelty in the invention comes with ill grace. Mr. Paul Bakewell and Mr. Leonard E. Curtis for the motion. Mr. Edwin H. Brown, opposed.

STATEMENT OF THE CASE.

This was a suit in equity by the Fenton Metallic Manufacturing Company against Samuel W. Chase and others for alleged infringement of a patent relating to bookcases. Defendant moves to vacate a. default order for a preliminary injunction.

LACOMBE, J.:

This is an application by a defendant against whom an injunction pendente lite was obtained by default to open such default and vacate the injunction. Satisfactory excuses are presented for opening such default, and the motion to that effect is granted upon payment to complainant of the disbursements, at the regular rate, for taking deposi tions incurred in procuring all affidavits and copies of documents read by the complainant upon this application, and which were not a part of the papers presented by it on original motion for the injunction. The case may then be disposed of as if motion for injunction pendente lite were now first made. The patent is No. 450,124, to Horace J. Hoffman, dated April 7, 1891, for improvements in storage-cases for books. As stated in the patent, the object of the invention is

to facilitate the handling and prevent the abrasion and injury of heavy books, etc. It consists, essentially, of the peculiar arrangement of the guiding and supporting rollers and of the peculiarities in the construction of the case and shelves hereinafter specifically set forth.

It is unnecessary to discuss the details of the patent or to enter into any elaborate disquisition on the state of the art. That may be more appropriately left for final hearing. Where the validity of a patent is attacked and there is not a clear preponderance in its favor, injunction pendente lite should not issue. Not only has the complainant no clear case, but, on the contrary, it is difficult to see on what ground it can be seriously contended that there is patentable novelty warranting such a construction of the patent as would cover defendants' structure. Roller-shelf bookcases were old. So, too, it was old to provide such shelves with a roller or rollers arranged in front of the edge of the shelf, so as to facilitate the insertion and removal of a heavy book without friction or abrasion. Stripped of all verbiage the sole improvement of the patentee germane to the structures now before the court consisted in so arranging the front edge of the shelf as to provide a reëntrant band or recess therein, so that the hand could be inserted a greater or less distance back from the line of the front edge and the book seized hold of. The evidence shows, and certainly without any proof it is common knowledge, that so-called "hand-holes" in the front of bookshelves have been used for very many years before the patent was applied for. It is true that these "hand-holes" or "reëntrant recesses" had been provided only in the old-fashioned wooden shelves unprovided with rollers; but when skeleton-frame roller-shelves had come into use it seems a rather startling proposition to advance that it required inventive genius to provide them with the same sort of "handhold" to perform the same function. There might be some mechanical ingenuity warranting a patent for the details of the structure, but to hold defendant as an infringer the patent must be construed so broadly as to cover the recess or hand-hole generally, whether it be rounded or square, formed by a bending in of the front bar of the frame or by protruding rollers on brackets to the right and left of the recess beyond the front bar.

Since the patent apparently does not disclose sufficient patentable invention to stand alone, the only question remaining is whether the decision of the Supreme Court of the District of Columbia will support it. The infringing structure in that case, save for some most trivial mechanical details, was manifestly the same as the defendants' here. That Court wrote no opinion. So we are unable to determine what meritorious elements it found in the patent. It is a suggestive circumstance, however, that the defendant in the Washington suit was in privity with Jewell and Yarman, who had been in interference in the Patent Office with Hoffman, the patentee, over this very patent, claiming to be themselves the first inventors, and asking a patent for their "invention." This interference did not prevent defendants in the Washington suit from arguing that there was no patentable novelty in the alleged invention; but such contention came with ill grace from them. In granting a decree and writing no opinion the Supreme Court

of the District may have intended to express the conclusion that for some sufficient reason, not shown here, those particular defendants should be enjoined, while at the same time by not filing an opinion they avoided giving the patentee a supporting adjudication which would enable him to get injunctions as a matter of course against infringers generally.

The injunction pendente lite is therefore vacated, but, inasmuch as defendants' carelessness has made the argument more troublesome for their adversary than it otherwise would be, solely upon condition that defendants file each month until final hearing a sworu statement of all shelves with hand-holes sold by it, giving date of sale, name of purchaser, and, if not manufactured by defendants, name of person from whom purchased.

[U. S. Circuit Court-Eastern Division of the Eastern Judicial District of Missouri.]
CHESTERMAN v. LINDELI, RAILWAY COMPANY.

Decided September 16, 1895.

76 O. G., 479.

1. DEMURRER-PATENTABLE NOVELTY.

Demurrer was sustained where it appears from an inspection of the patent in suit and by the exercise of common knowledge that the device patented is destitute of patentable novelty.

2. INVENTION.

It does not require invention merely to unite two short cars, so as to make a single long car with a transverse platform running across its center.

ON DEMURRER to bill of complaint.

Mr. Paul Bakewell in support of the demurrer.

Mr. A. C. Fowler, contra.

THAYER, J.:

This is a case in which it clearly appears from an inspection of the patent in suit and by the exercise of common knowledge that the device claimed and described by the Letters Patent is destitute of patentable novelty. Given the object which the inventor sought to accomplishnamely, the separation of smokers from non-smokers in the same streetcar by placing them in different compartments, so that the fumes of tobacco would not penetrate from one compartment into the other—and any car-builder or wagon-maker of average skill would know how to accomplish it. A person who had ever seen a short trail-car drawn by an ordinary street car for the accommodation of smokers would perceive at a glance, if it was deemed advisable to unite them, the feasibility of doing so and precisely how the union could be accomplished so as to form a single integral structure moving on four wheels instead of eight. The simple union of two such cars would create a central platform run

ning transversely across the car, having steps on the side of the car at either end of the platform, and would enable passengers to have access from such platform to either compartment of the car. It cannot be said that the union of two cars in the mode suggested would require the exercise of mechanical skill or constructive ability of a very high order. The patent laws were not designed to enable any individual or individuals to monopolize the use of a vehicle which is so simple in struc ture, easy of conception, and that has so many prototypes as the streetcar described in the patent. (Richards v. Chase Elevator Co., C. D., 1895, 392; 71 O. G., 1456; 158 U. S., 299; West v. Rae, 33 Fed. Rep., 45.) See also Union Iron Works v. Henry H. Smith et al., No. 589, and Samp son v. William Donaldson et al., No. 620, decided by the United States Circuit Court of Appeals, Eighth Circuit, at the May term, 1895. The demurrer to the bill of complaint is accordingly sustained.

(U.S. Circuit Court-District of Connecticut.]

THOMSON-HOUSTON ELECTRIC COMPANY v. KELSEY ELECTRIC RAILWAY SPECIALTY COMPANY. SAME v. BILLINGS & SPENCER COM

PANY.

Decided March 2, 1896.

76 O. G., 609.

1. VAN DEPOELE-TRAVELING CONTACT FOR ELECTRIC RAILWAYS-CONTRIBUTORY INFRINGEMENT.

Letters Patent No. 495,443, granted April 11, 1893, to Charles J. Van Depoele, for a traveling contact for electric railways, on a motion for preliminary injunction, Held to be infringed and motion granted.

2. INFRINGEMENT-BURDEN OF PROOF-CONTRIBUTORY INFRINGEMENT.

In a suit for preliminary injunction the burden of proof is on complainant to show an intention on the part of defendants to infringe. Making and putting upon the market an article which of necessity and to their knowledge is to be used to infringe complainant's patent is contributory infringement on the part of defendants.

3. SAME

CONTRIBUTORY INFRINGEMENT-LAWFUL USE.

The fact that the infringing part is capable of a lawful as well as an unlawful use, by way of reparation or restoration of a patented device, does not raise the presumption that the lawful use is the one for which it is alone intended.

Mr. Frederic H. Betts for the complainant.

Mr. Charles R. Ingersoll and Mr. E. H. Rogers for the defendants

STATEMENT OF THE CASE.

These were two bills in equity brought by the Thomson-Houston Electric Company against the Kelsey Electric Railway Specialty Company and the Billings & Spencer Company, respectively, for alleged infringement of a patent. The case was heard upon complainant's motion for a preliminary injunction.