CURRENT COURT DECISIONS.

ENGLANDER SPRING BED CO. v. FROUNSTILE et al. (District Court E. D. New York, Mar. 6, 1924. Reported in 296 Fed. 248).

Suit for infringement of patent 1,368,510 to Kreuzkamp, assigner to Englander Spring Bed Co.

Infringement. The patent in suit was for a knock down bed structure comprising a head and a foot and a pair of spring mattress sections, in which the main mattress section would not have permanent feet, but would be detachably supported by the head and foot, the novelty residing in the absence of the permanent feet. The defendant's structure consisted of an old bed with detachable head and foot, but the head and foot did not perform the function of supporting the mattress section, as that was supported by its own permanent feet, and it supported the head and foot.

The court held that trying to see how near one can come to a patent without infringing it is not looked upon with favor, but is not necessarily an infringement, if the near infringer avoids the clear import of the claims. In this case the patent was held valid but not infringed.

H.

INDIVIDUAL DRINKING CUP CO. v. ERRETT. C. C. A.-2, Mar. 3, 1924. 297 F. R. 733.

Defendant must knowingly commit act without which infringement would not have occurred, to be guilty of contributory infringement. The fundamental facts are that defendant's Lilly cup is an article in commerce of ordinary use, being a paper cup for drinking purposes which can be used without any relation to any apparatus, or which can be used in an unpatented apparatus such as the so-called "free dispensers."

Where, as here, any paper cup of proper size is avail

able for the purposes of the infringing device, just as any gum or chocolate package of proper size is available for a slot machine, the mere sale of the gum or chocolate package with the knowledge that the same was to be used in a patented machine, cannot charge the vendor of the cup or the vendor or the gum or chocolate with contributory infringement, and, finally, it would, indeed, place a heavy burden upon trade, and go far beyond the beneficial purposes of the patent monopoly, to hold that it was the duty of the vendor of an unpatented article of commerce to ascertain whether the article. was, as held by the decree below, "adapted for use" in the infringing apparatus. Such a duty would require vendors of the almost limitless ordinary articles of trade, whether in raw or manufactured form, to determine first whether the device was an infringement, and, secondly, to what use the lumber, steel, or what not was to be put by the purchaser. Held, the decree should be modified.

Inducing another to use infringing machine rendered defendant guilty of contributory infringement. It is apparent from the facts that Errett induced the Hudson River Day Line to use the infringing machine. This course was due in part to advice of counsel who was of the opinion that the patent was invalid and not infringed. It is clear that the inducement was due to the desire of Errett to obtain a customer for his Lilly cups, and it is therefore Held, that Errett was guilty of contributory infringement. R. L. G.

KELLER ET AL DOING BUSINESS AS HARTFORD WINDSHIELD CO. v. ADAMS-CAMPBELL CO., INC. ET AL., U. S. Supreme Court. April 7, 1924. Chief Justice Taft.

Intervening Rights-Reissued Patent. A writ of certiorari was granted in this case by the Supreme Court of the United States from a decree by the Circuit Court of Appeals of the Ninth Circuit upon the allegation of the petition, not denied by opposing counsel, that the

sole question was whether one who makes and sells articles not covered by the claims of an original patent, but embraced in the enlarged claims of a subsequent valid reissue, applied for within seven months after the original was granted, has intervening rights such that he is not only immune from liability for what he has made and sold, but enjoys an irrevocable and permanent license to continue to make and sell without restriction.

The view of the various Circuit Courts of Appeals of the general subject of the scope of intervening rights are not entirely easy to reconcile, said the Court in this case, citing numerous variant decisions, and adding that the question, if really presented, would be one sufficiently important to justify consideration of it on certiorari.

Certiorari-Reasons for Granting. The Court, however, held this case to be merely an ordinary patent case, with the usual issues of invention, infringement etc., and not properly before it on a writ of certiorari since there. was no conflicting decisions of circuit courts of appeals. The writ was therefore dismissed without settling the important issue supposedly involved.

M. F. P.

CHADELOID CHEMICAL CO. v. CHARLES McADAM CO. C. C. A.-Second Circuit. Mayer, Cir. J. 298 Fed., 713.

Appeal from the District Court of the United States for the Second District of New York.

Suit by the Chadeloid Chemical Company against the Charles McAdam Company. From an interlocutory decree, restraining defendant from infringing defendant's patent, defendant appeals. Reversed.

Appeal from an interlocutory decree of the District Court for the Southern District of New York, dated November 2, 1923, holding, inter alia, that plaintiff is the owner of United States patent, 1,014,211, dated January 9, 1912, to Dosselman & Newman (hereinafter calied Dosselman), and that claims 7 and 8 of the patent

are infringed by defendant, and restraining defendant from infringing these claims, and "in particular from selling at prices less than or upon terms different from the schedule of minimum prices and terms established by the provisions" of a certain license agreement.

The application for the Dosselman patent was filed on June 24, 1903. The application for the patent to Ellis, infra, was filed on February 10, 1902, and the patent issued on December 2, 1902. Thus it appears that the Dosselman application was filed a little less than seven months after the issuance of the Ellis patent. Both patents were for removing paint and varnish or surface. finishes.

Claims 7 and 8 of the Dosselman patent read:

"7. A composition of matter for removing finish from surfaces, comprising about equal portions of benzol and acetone and about 32 per cent of waxy material.

"8. A composition of matter for removing finish from surfaces, comprising about equal parts of acetone and other neutral volatile solvent material combined with not more than about 3 per cent of waxy material."

Plaintiff introduced as evidence a license agreement between plaintiff, as licensor, and defendant as licensee, dated June 28, 1915. Under this agreement, the Dosselman patent was not specifically mentioned, but there was an all-gathering clause as to letters patent "now or hereinafter owned by the licensor covering paint or varnish or other finish removers," under which the Dosselman patent could be included. The Dosselman rights had been duly assigned by mesne assignments to plaintiff, so that the patent was issued to plaintiff, which thus had been its owner since January 9, 1912. The license set up a minimum price list, and the license was granted, inter alia, on condition that the licensee would not sell

under this price list. Defendant's answer alleged noninfringement and invalidity.

Much of this case revolved around the question as to whether defendant had violated the license agreement by selling its product under the minimum prices set forth in the license. The lower court found this issue in favor of plaintiff, and, on the authority of Bement v. National Harrow Co., 186 U. S. 70, 22 Sup. Ct. 747, 46 L. Ed. 1058, held that the price fixing feature of the license was valid, and further held, under Indiana Mfg. Co. v. J. I. Case Threshing Mach. Co., 154 Fed. 365, 83 C. C. A. 343, that suit for infringement is properly brought, where the terms of the license regulating prices to be made by the licensee on the first sales are disregarded. The upper court remarked in passing that the latter decision mentioned has now become debatable, but they said that it was not necessary to consider whether a suit for infringement was maintainable on the ground discussed in the decision, it being sufficient, on the facts, to determine whether defendant has infringed claims 7 and 8 of the Dosselman patent by the sale of defendant's product known as "X-Cell-All".

This leads to an outline of the history of the Ellis patent. Ellis, in his specification stated:

"My new process consists in the dissolution of a wax or waxy body in a hydrocarbon oil or other suitable solvent and the subsequent precipitation of this wax in a gelatinous state by the addition of an alcoholic body miscible with the solvent employed.

A suitable composition for general purposes can be obtained by the solution by heat of four parts each of paraffin and currier's hard grease in eight parts of benzol-i. e., one third a waxy substance.

Nine claims were allowed all of which were specific to the use of alcohol. Acetone was not mentioned. The Ellis patent was extensively litigated and the courts recognized Ellis as a pioneer and accorded to his claims most liberal treatment. In Chadeloid Chemical Co. v.