SOUTHERN RY. CO. v. CAROLINA COAL & ICE CO. (Circuit Court of Appeals, Fourth Circuit. February 15, 1907.) No. 711. COURTS-FEDERAL COURTS CIRCUIT COURT OF APPEALS-APPEALABLE ORDERS -ORDER DENYING PRELIMINARY INJUNCTION. Under Act April 14, 1906, 34 Stat. 116, c. 1627, regulating appeals to the Circuit Court of Appeals from interlocutory orders, such an order refusing a preliminary injunction is not appealable. Appeal from the Circuit Court of the United States for the Western District of North Carolina. Charles A. Moore (William B. Rodman, on the brief), for appellant. James H. Merrimon, for appellee. Before GOFF, Circuit Judge, and MORRIS and DAYTON, District Judges. PER CURIAM. This was a bill filed by the Southern Railway Company, of Virginia, against the Carolina Coal & Ice Company, of North Carolina, praying a decree establishing the alleged paramount right of the railway company to certain rights of way, and for a preliminary injunction, meantime restraining the coal and ice company from interfering with the possession and use of the railway company, and with the construction of its tracks until the final order of the court. Upon a hearing the Circuit Court refused the preliminary injunction, and the railway company has appealed from that refusal. Appeals from interlocutory injunctions are regulated by act of Congress approved April 14, 1906 (34 U. S. Stat. 116, c. 1627), which provides only for appeals from interlocutory orders or decrees granting or continuing an injunction or appointing a receiver, but does not provide for an appeal from an interlocutory order or decree refusing an injunction. The motion of the appellee to dismiss the appeal must therefore prevail. Appeal dismissed. SOUTHERN RY. CO. v. CAROLINA COAL & ICE CO. No. 712. INJUNCTION-PRELIMINARY INJUNCTION-DISCRETION OF COURT. A preliminary injunction directed in part against each of the parties to a suit to determine rights in certain land and right of way adjacent to a railroad station, designed to preserve the status of the property until final hearing, held properly granted in the exercise of the court's discretion. Appeal from the Circuit Court of the United States for the Western District of North Carolina. Charles A. Moore (William B. Rodman, on the brief), for appellant. James H. Merrimon, for appellee. 151 FEDERAL REPORTER. Before GOFF, Circuit Judge, and MORRIS and DAYTON, District Judges. PER CURIAM. The Carolina Coal & Ice Company, of North Carolina, filed its complaint in the state court against the Southern Railway Company, of Virginia, asserting title to and possession of certain lands and buildings and a spur track located on land adjacent to the station of the Southern Railway Company at Asheville, N. Č., and praying an adjudication of its rights, and meantime for an injunction to prevent the railway company from entering said land and constructing its buildings, tracks, and sidings thereon and destroying the buildings and track of the coal and ice company, as the railway company was about to do, to the irreparable injury of the coal and ice company. The case was removed into the Circuit Court of the United States, and the circuit judge, after a hearing, entered an order permitting the railway company to prosecute the construction of its tracks on any land or right of way not actually occupied by the spur track or buildings of the coal and ice company, but awarding a preliminary injunction against the railway company restraining it from interfering with that part of the lands and right of way actually occupied by the coal and ice company, and restraining the coal and ice company from further constructing any building on the land claimed by the railway company as its right of way. From the granting of this injunction, the Southern Railway Company has appealed. The purpose and effect of the interlocutory injunction was not to determine any right, but merely to continue the existing conditions. and prevent a resort to force by either of the contesting parties until their respective rights could be defined and determined by judicial investigation and decision. We think the preliminary injunction was called for by the situation, and that under all the facts made to appear by the affidavits the circuit judge properly exercised his judicial discretion in granting it. Decree affirmed. BUSER et al. v. NOVELTY TUFTING MACHINE CO. No. 1,523. 1. PATENTS-ANTICIPATION-ABANDONED EXPERIMENT. Where the idea of a machine has been conceived, and the conception carried into effect by the construction of the machine, which is used, or is capable of being used, for the purpose for which it was designed, it is no longer an experiment, but an invention; and the subsequent abandonment of the use of the machine does not render it an abandoned experi ment, nor lessen its effect as an anticipation which will invalidate a subsequent patent to another for substantially the same machine. [Ed. Note.-For cases in point, see Ceut. Dig. vol. 38, Patents, 8 7173. Abandonment of invention, see note to Hayes-Young Tie Plate Co. v. St. Louis Transit Co., 70 C. C. A. 6.] 2 SAME FORGOTTEN INVENTION. An invention which has been perfected by the construction of a machine, which was used in practical work for a number of years by the inventor and is still in his possession, and of which he had photographs taken, which he still preserves, does not lose its effect as an anticipation. of a subsequent patent to another for substantially the same machine as one which has been finally abandoned and forgotten, although the inventor failed to realize the full value of the invention and after a time discontinued the use of the machine. [Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Patents, §§ 70–74.] 3. SAME-TUFTING MACHINES. The Pitner patent, No. 577,809, and the Fresch reissued patent, No. 11,778 (original No. 620.070), for tufting machines for making tufted work in upholstering, held void, for anticipation and prior use, on evidence which established beyond a reasonable doubt that defendants made and used in their business, many years prior to the patents, a machine embodying all the essential features of those of the patents. Appeal from the Circuit Court of the United States for the Southern District of Ohio. Alfred M. Allen, for appellants. Walter F. Murray, for appellee. Before LURTON and SEVERENS, Circuit Judges, and COCHRAN, District Judge. COCHRAN, District Judge. This appeal is from an interlocutory decree granting an injunction, with a reference for an accounting, in a suit for the infringement of certain patents, brought July 12, 1902. The appellee, also hereafter referred to at times as "plaintiff," owns said patents by assignment. They all relate to tufting machines; i. e., machines for making tufted work in upholstering in the furniture, carriage, and casket trades. They are six in number, to wit: No. 511,649, to H. B. Pitner, December 26, 1893; No. 577,809, to H. B. Pitner, February 23, 1897; No. 592,508, to A. Freschl, October 26, 1897; reissue No. 11,778, to A. Freschl, October 24, 1899; reissue No. 11,779, to A. Freschl, October 24, 1899; and No. 682,139, to A. Freschl, September 3, 1901. The suit as to the first Pitner patent was abandoned before the hearing. It was held that the first Freschl patent was not infringed, that the last two Freschl patents were invalid, and that the second Pitner patent, as to claims 5 and 6, and the second Freschl patent, as to all its claims, four in number, were valid and infringed. The machine described in the second Pitner patent, No. 577,809, and to which it related, consists of four separate articles-a mold board, plaiters, a follow board, and a pin board. The mold board is an open. box partitioned by strips into separate compartments, or pockets, of the shape desired for the rounded portions or "biscuits" of the tufted work, with hollow posts at the corners of the pockets, except at the outer edge, of the height to make the depression of the tufted work the desired depth, and longitudinally fluted on their outer side, and with openings in its base answering to the holes in the corner posts. The plaiters are hollow tubes recessed into downwardly projecting points. at one end and adapted to straddle the corner posts and partition slips and enter the flutes of the corner posts. The follow board is a board with openings in it answering to the corner posts of the mold board. The pin board is a board with pins or posts rigidly attached thereto answering to the openings of the base of the mold board, and adapted to enter same and the holes of the corner posts. The mode of using the machine is this: The outer or upper cover of the cushion, with its finished face downwards, is placed in the mold board and depressed into the pockets; the plaiters are passed down over the cover and corner posts and into the flutes, so as to plait the cover and hold it in place; moss, or other suitable material, is filled in the depressions of the cover; the plaiters are iemoved; burlap, or other suitable material, is laid on the moss to form the inner or lower cover; the follow board is placed on top of the burlap, and the whole is removed to a press where the filling material is compressed into place; the mold board and follow board are clamped together and removed from the press; the tufting buttons, prongs upwards, are forced by means of the pin board through the openings in the base of the mold board and the holes in the corner posts, and through the lower and upper covers and there clinched, the holes in the follow board being large enough to permit this being done; and the finished work is then removed from the machine. Claims 5 and 6 of the patent are for the combination of a base provided with corner posts, referred to therein as "upwardly projecting tucking devices," and plaiters. The claims contain no limitations on the tucking devices, but do on the plaiters. The fifth calls for "detachable recessed plaiters which are adapted to straddle said tucking devices," and the sixth for "detachable plaiters provided at their lower ends with downwardly projecting points which straddle said tucking devices." This is the only difference between the two claims. The machine described in the second Freschl patent, reissue No. 11,778, and to which it related, consists of a mold board, and all the claims thereof, four in number, relate thereto. They call for an imperforated base plate, as distinguished from the perforated base plate of the Pitner patent, with a plurality of upwardly projecting tufting posts attached rigidly to said plate; each post being provided at its outer end either with an upwardly projecting pointed pin held against lateral displacement and adapted to pierce both coverings, or with a seat for the head of a tufting button adapted to retain it against lateral displacement during the process of forming the cushion, and releasing it when removed from the mold board, and either with or without strips partitioning the mold board into separate compartments. The fixed pin is used when it is intended to sew the outer and inner covers together. In effect the construction is simply the pin board of the second Pitner patent, No. 577,809, with the addition of the upwardly projecting pointed pins or seats for the tufting buttons at the outer ends of the posts thereof and of the partitioning strips when used. The appellants (Mattie H. Buser being the wife of W. E. Buser, and the Champion Bed Lounge Company being the name under which they did business), also hereafter referred to at times as "defendants," ht.d filed in September, 1902, their answer, in which they denied infringement and alleged as follows: “And for a second defense to plaintiff's bill of complaint, defendants say: That they have been continuously engaged at the city of Chillicothe, Ross county, Ohio, in the upholstering business in the manufacture of chairs and lounges for a period of 25 years last past; and that all the machinery and apparatus that has been and is used by them in their said business, and also the methods of using same, are of their own discovery and invention, and have been so used by them in their said business in said city of Chillicothe, Ross county, Ohio, continuously for a period of 22 years last past." Some time shortly after October 14, 1902, defendants had filed a supplemental answer, in which they set up that the defendant W. E. Buser obtained a patent for new and useful improvements in tufted machines, numbered 711,382, and alleged: "That said patent letters include and embody in all the various appliances and apparatus used by defendants in their upholstering business, and also comprise and contain all the upholstering apparatus and methods used by defendant, of which plaintiff in its bill herein complains." This pleading, of course, presented no defense to the suit. Its sole. effect was to annul the denial of infringement contained in the answer and to relieve plaintiff of the necessity of proving it. It had this effect because it is apparent from an inspection of said patent that the apparatus described in it and to which it related is an infringement of plaintiff's two patents sustained and held to be infringed, and it is alleged that the apparatus in use by defendant is of that character. This left the second defense of the original answer as the only defense to the suit. The defense which this portion of the answer set up was prior invention, and that by defendants. It is not, however, thus directly alleged therein. That portion of the answer contains three affirmative statements, to wit: That the defendants had been continuously engaged in the upholstering business in Chillicothe, Ohio, for 25 years last past; that all the machinery and apparatus that had been and were then used by them in their said business, and the methods of using same, were of their own invention; and that they had been used by them continuously for a period of 22 years last past, Counsel differ as to the meaning of the last two statements, the material part thereof. Appellants' counsel contend that their meaning is merely that all the machinery and apparatus which the defendants had been for 22 years last past, and were then using, were of their own invention. So construed, they did not present the defense of prior invention, or any defense at all. According to this construction, it is neither alleged that the machinery and apparatus which the defendants were then using had been invented by defendants prior to plaintiff's invention, nor that the machinery and apparatus which the defendants had been using during said 22 years prior to plaintiff's invention anticipated plaintiff's patents. Appellee's counsel contends that their meaning is, not only that all the machinery and apparatus which the defendants had been and were then using were of their own invention, but also that the machinery and apparatus which they were then using had been used by them continuously for 22 years last past. So construed, they presented a defense, and that of prior invention. This they did, not by direct allegation, but indirectly only. As counsel for appellee says, this defense "is an inference from the answer." Rather it should be said that it is an inference from the answer in con151 F.-31 |