Lucius E. Varney, of New York City, for appellant.

I. M. Obreight, of New York City (Everett E. Kent, of Boston, Mass., of counsel), for appellee.

Before WARD, ROGERS, and HOUGH, Circuit Judges.

PER CURIAM. This is a suit for infringement of United States letters patent No. 868,977 for a strip-serving device granted to the complainant as assignee of Elliott, the inventor. The claims in issue are 12 and 13, but it will be necessary only to state the latter:

"13. A strip-serving apparatus adapted to serve strips of paper or the like for wrapping or binding packages, comprising a strip support, a strip moistener operatively related to said support and adapted to moisten the leading end of the strip as it passes the moistener from the support in the operation of the apparatus, and strip-severing means positioned with relation to the moistener and adapted to sever the strip in the rear of the moistened portion thereof, without necessitating further serving of the strip from the support after the moistening to effect the presentation of an unmoistened portion to such strip-severing means."

Although the device for feeding the dry end of the tape forward so that it can be grasped by the fingers was stated in the specification as one of the objects of the invention, it is entirely omitted in the claim. We will assume, however, that it should be treated as included. Patents for tape-moistening machines are numerous and have been several times before the courts in this circuit. National Binding Machine Co. v. McLaurin (C. C.) 186 Fed. 992; Same v. Eisler (D. C.) 197 Fed. 175; Same v. Larkin, 233 Fed. 998, 148 C. C. A. 8. The District Judge apparently thought that the tape is continuously served in Elliott's device by a mechanism indicated on the figure by a handle 17 and a pawl and ratchet 18 and 21, whereas this mechanism serves the dry end of the tape after it has been severed only far enough forward to pass between the presser and the moistener, where it can be grasped by the fingers, and from that point on the tape is served by hand. The operation of the defendant's device is exactly similar, except that the first step, to wit, the serving of the dry end of the tape forward, so that it may be grasped by the fingers, is done not by a mechanism, but by the application of the fingers to the tape. We hardly think this difference sufficient to avoid infringement.

The real ground, however, of Judge Augustus N. Hand's decision, is that the device involves no invention, and in this we concur. The placing of the cutting knife behind instead of in front of the moistener, as in Piper, was a mere mechanical improvement. If the U-shaped arm were made to swing backward far enough to admit the fingers, the dry end of the tape could be drawn out by them and, if room enough was not left it was not invention to use the handle, pawl, and ratchet to serve the dry end of the tape forward to a point where it could be grasped by the fingers.

Decree affirmed.

ELLIOTT CO. v. ROTO CO. et al.

(Circuit Court of Appeals, Second Circuit. June 11, 1917.)

No. 271.

1. JUDGMENT 675(1)-CONCLUSIVENESS ON PARTY PARTICIPATING IN DEFENSE.

A judgment for complainant, in a suit against a seller of a motor manufactured by defendant for infringement of a patent, was conclusive against defendant, where it conducted the defense of such suit, the nominal defendant taking no part in it whatever, though defendant concealed the fact that it was defending the suit, and did not know that complainant was aware thereof, since, while an estoppel, to be effective, must be mutual, this mutuality exists when the defense conducted by a third party is either open and avowed, or known to the opposite party.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1190, 1194.] 2. JUDGMENT 951(1)—CONCLUSIVENESS ON PARTY PARTICIPATING IN DEFENSE.

A complainant, relying upon the judgment in a prior patent infringement suit as an estoppel against defendant, must show that defendant actually conducted the defense in the prior suit.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 1809.]

3. JUDGMENT 951(1)-CONCLUSIVENESS IN FAVOR OF PARTY PARTICIPATING IN DEFENSE.

A defendant, relying on a judgment in a prior suit for infringement of a patent as an estoppel in its favor, must show, not only that it conducted the defense in such suit, but that plaintiff knew it was conducting the defense.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1809.]

Appeal from the District Court of the United States for the District of Connecticut.

Suit by the Elliott Company against the Roto Company and another. From a decree for complainant, defendants appeal. Affirmed. Gifford & Bull, J. Edgar Bull, and Charles S. Jones, all of New York City, for appellants.

Bakewell & Byrnes, of Pittsburgh, Pa., and George E. Beers, of New Haven, Conn. (George H. Parmelee and Clarence P. Byrnes, both of Pittsburgh, Pa., of counsel), for appellee.

Before COXE, WARD, and HOUGH, Circuit Judges.

WARD, Circuit Judge. This is a suit against the Roto Company and Philip J. Darlington, its president, for infringement of United States letters patent No. 983,032, for turbines, and No. 1,045,134, for rotary motor, duly assigned to the complainant.

The sole question to be determined is whether the defendants are bound by a decree in favor of the complainant in a prior suit instituted by it on the same patents in the District Court of the United States for the Western District of Pennsylvania against one Robertson, a seller of the same motor manufactured by the defendant, the

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Roto Company, as is complained of in this suit. It appears that the Roto Company did conduct and pay for the expenses of the defense in the prior suit; the actual defendant, Robertson, taking no part in it whatever, not even as a witness. The defendant Darlington was present at the taking of some of the depositions and for a part of the time at the trial. The complainant knew that the Roto Company was defending the case for Robertson, having been informed of this by him through one of its salesmen before the trial began. Judge Thomas held that the defendant was estopped, because of this decree in the prior suit, from contesting the validity of the patents in this suit.

[1-3] The defendant objects that its defense of the prior suit was not open and avowed, and that, because it did not know that the complainant was aware it was defending the case, there can be no estoppel for want of mutuality. In other words, it says that a decree in favor of the defendant in that case would not have been res adjudicata in a subsequent suit by the complainant against it. It is quite true that an estoppel, to be effective, must be mutual. The principle has been expressed in various cases by saying that a defense conducted by a third party "must be open and avowed," or "must be known to the opposite party." Either category in our opinion is sufficient. Cramer v. Singer Co., 93 Fed. 636, 35 C. C. A. 508; Hanks v. Dental Association, 122 Fed. 74, 58 C. C. A. 180; Penfield v. Potts, 126 Fed. 475, 61 C. C. A. 371; Jefferson Co. v. Westinghouse Co., 139 Fed. 385, 71 C. C. A. 481.

When the defense is not open or avowed, the estoppel becomes matter of proof. If the plaintiff relies upon it, he must show that the defendant actually did conduct the defense in the prior suit. If the defendant relies on it, he must show not only that he did conduct the defense, but that the plaintiff knew he did. In the present case the Roto Company did not directly avow that it was defending the suit against Robertson, nor authorize him to inform the Elliott Company of that fact. Its intention was to conceal what it was doing. All the same, it was defending the suit. Robertson did inform the Elliott Company of the fact, and the defendant Darlington, president of the Roto Company, did openly participate to some extent. We do not think it was necessary that the defendant should have known that the claimant was aware that it was defending the suit against Robertson to make the estoppel effective. If the decree had been in favor of Robertson, and the Roto Company could have proved that the complainant knew that it had defended that suit, which we have little doubt it could have done, then the decree would have been res adjudicata against the complainant in a subsequent suit.

Decree affirmed.

DOMESTIC VACUUM CLEANER CO. v. BISSELL CARPET SWEEPER CO.

(District Court, S. D. New York. March 20, 1917.)

1. PATENTS 328-VALIDITY AND INFRINGEMENT-VACUUM SWEEPER.

The Quist and Blanch reissue patent, No. 13,508 (original No. 976,494), for a hand-operated vacuum sweeper, one feature of which is the means of attachment of the dust receptacle, so that it is readily removable for employing and readily reattached by an unskilled operator, was not anticipated and discloses patentable invention; also held infringed by a sweeper in which the nozzle head and dust receptacle are in one piece, instead of separable, as in the patented device.

Courts will not permit mere literalism to defeat a meritorious patent. [Ed. Note. For other cases, see Patents, Cent. Dig. § 231.]

In Equity. Suit by the Domestic Vacuum Cleaner Company against the Bissell Carpet Sweeper Company for infringement of claim 4 of reissued letters patent No. 13,508, for a vacuum sweeper, granted to Quist and Blanch January 7, 1913. On final hearing. Decree for complainant.

L. W. Southgate, of Worcester, Mass., and C. L. Sturtevant and L. S. Bacon, both of Washington, D. C., for plaintiff.

Drury W. Cooper, of New York City, and Fred L. Chappell, of Kalamazoo, Mich., for defendant.

MAYER, District Judge. The reissue was applied for only five months after the original patent was issued under circumstances which bring it well within the doctrine of cases in this circuit. Autopiano Co. v. Amercan Player Action Co., 222 Fed. 276, 138 C. C. A. 38; Baldwin v. Abercrombie & Fitch Co. (D. C.) 227 Fed. 455, aff'd 228 Fed. 895, 145 C. C. A. 293; Iowa Washing Machine Co. v. Montgomery Ward & Co. (D. C.) 227 Fed. 1004; aff'd 234 Fed. 88, 148 Č. C. A. 104; Motion Picture Patents Co. v. Laemmle et al. (D. C.) 214 Fed. 787. [1] The invention concerns a hand-operated carpet sweeper, and the patentees state:

"Further objects thereof are to provide a compact arrangement of the motors, wheels, and dust receiver, whereby they can be contained in a small space and covered by a small and neat casing having no projections liable to injure furniture when in operation; to provide an improved location and arrangement of motors whereby the suction will be continuous; and to provide a convenient way of removably holding the dust bag in position."

Utilizing the so-called "1-2-3 arrangement" of the prior art (see opinion in National Sweeper Co. v. Bissell Carpet Sweeper Co., 242 Fed. 947, decided herewith), Quist and Blanch arranged the parts of their pneumatic carpet cleaner, so that the dust receptacle could easily. be removed by the housewife or domestic servant for the purpose of emptying the contents, and then put back and locked in position, so as to obtain the necessarily tight seal.

A mere inspection of the commercial device will demonstrate its admirable simplicity and usefulness. This Quist and Blanch patent

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is the second chapter of note in the story of this art of dust and dirt, of which Kenney's was the first. A young doctor of Worcester, Mass., interested in the pursuit of bacteria, conceived this invention and with the aid of Blanch gave it practical form. These patentees realized the necessity of making simple and easy the handling of the dust bag and the disposal of its contents.

These are compact hand-propelled devices. They must be sold at a price well below that brought by the more elaborate cleaners in which electric power is used, such as were under consideration in the Innovation Electric Co. Case (D. C.) 234 Fed. 942. They necessarily either came into competition with or were adjunctive to the Bissell sweeper, which had become almost a household word. Beginning in 1910, the Quist and Blanch was placed on the market, and, from the outset, sold itself. The business grew by leaps and bounds, until now fully 400,000 of these sweepers have been sold by those who control this patent. The M. S. Wright Company and the National Sweeper Company admittedly copied the Quist and Blanch construction, and, cross-licenses having been given around the circle by the plaintiff company and these other two, in a comparatively few years the three companies have sold over 1,000,000 sweepers containing the Quist and Blanch improvement at an aggregate price of several millions of dollars. Such a result indicates a remarkable commercial achievement, not lessened by the fact that the Bissell sweeper is still in large demand. If, notwithstanding the success which so well-known an article as the Bissell sweeper, backed by a business institution long established and of high repute, continues to retain, a new device so rapidly and extensively impresses the market, it is obvious that it possesses singular merit. Of course, it is not possible accurately to apportion how much of this success is due to Quist and Blanch alone; but it is at least certain that their feature contributed a fair share to the result in a very practical art, where the purchaser who desires to spend only $5 to $10 wants something that will suit the purpose and do the thing. It is manifestly important that, after the dust and dirt are collected, the disposal shall be as easy and as sanitary as practicable, and, undoubtedly, this characteristic has been a convincing selling point.

Defendant determined to undertake the manufacture of its two alleged infringing devices in December, 1913, and thereafter, with full knowledge of the Domestic and National machines, defendant began the development in its factory of these two sweepers, until in November or December, 1914, it placed them on the market. The reason why this step was taken is stated by Mr. Shanahan, defendant's general manager, as follows:

"Well, it is evident that with the development of the vacuum cleaner that a demand was created for it. Our customers, and we have a great many, were urging us to make a vacuum sweeper. We always hesitated about that, because we wanted to remain in the distinct carpet sweeper business. But our customers urged it so strenuously that we finally concluded that it was the business-like thing to do, to get into the vacuum cleaning business. We had been in the carpet cleaning device business for a great many years. The trade generally looked to us, I think, and we can say that, without any sug