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per, yet, on the other hand, the public is interested in securing due limitations upon the claim of an exclusive monopoly on the ground of patentable novelty, and is entitled to the benefit of admissions imposed upon the applicant as a condition precedent to the allowance of the patent. Reece Button-Hole Ma. Co. v. Globe Button-Hole Ma. Co., 61 Fed. 958, 10 Ç. C. A. 194; McBride v. Kingman (C. C.) 72 Fed. 908; Boyer v. Keller Tool Co., 127 Fed. 130, 62 C. c. A. 244; Haughey v. Lee 151 U. S. 282, 14 Sup. Ct. 331, 38 L. Ed. 162. “Undoubtedly a patent, like any other written instrument, is to be interpreted by its own terms. But when a patent bears upon its face a particular construction, inasmuch as the specification and claim are in the words of the patentee, it is reasonable to hold that such a construction may be confirmed by what the patentee said when he was making his application. The understanding of a party to a contract has always been regarded as of some importance in its interpretation.” Goodyear Dental Vulcanite Co., v. Davis, 102 U. S. 222, 227, 26 L Ed. 149. In the above case, the attorney for applicant, in response to a communication from the Patent Office, had limited his claim to the use of “hard rubber," and the court construed the language of the patent and limited the scope of the claims in the light of said resulting limitation.

While, therefore, an applicant for a patent may stake out the boundaries of his territory, yet if, upon notice from the Patent Office that some portion of said territory is the property of another or is held in common by the public, he acquiesces in such statement and alters his boundaries accordingly, he is concluded by such abandonment, and cannot afterward undertake to define his territory by rolling stones, which he may move about across the lines of his original boundaries so as to appropriate property previously conceded to belong to others.

In the case of this defendant against the Universal Talking Machine Company and the American Record Company (decided at this session of court) 151 Fed. 595, we have held that it involved invention to apply the process of producing sound records upon cylindrical disk records of the graphophone type to the flat disk records of the gramophone type for reasons therein stated, which differentiate said invention from the one at bar. In the discussion of the case at bar, we may assume likewise that it involved invention to apply the processes of the prior art to the process of duplicating gramophone sound records in impressibie material, and that, if this patent had issued with a broad claim for an article produced by such process in materials other than hard rubber, said patent would have involved invention and would have been infringed by defendant. And in affirming the court below in dismissing this bill, in view of the declarations, admissions, amendments, and cancellations made by Berliner's attorney, showing a deliberate assent to and acquiescence in the action of the Patent Office, we are merely applying the rule of law, stated above, in holding that the patentee abandoned or waived his right to insist upon such a broad construction of the claims for a product as would embrace the defendant's disk.

We conclude, furthermore, that the article used by the defendant is not the equivalent of hard rubber. Defendant's material, which is a manufacture of earth and shellac, is similar to the hard rubber of the claims in the fact that it is impressible when soft and hardens when cold. But this characteristic would apply also to glass and metal, and a construction which would cover defendant's material might be held to cover also such constructions. The fact that they look alike is immaterial. But defendant's material is not the equivalent of hard rubber, and does not infringe the patented invention, for a method of protecting a matrix against the fumes of sulphur and for the product resulting only from such method, for the fundamental reason that it does not contain sulphur, which is the essential ingredient of hard rubber. As already shown, the patent was originally and primarily for a process, and the patent issued upon the specific representation that the patented process necessarily involved a certain patented product, and that said product could only be produced by said process. In these circumstances it may well be argued that, in order to establish infringement, there must be proof of the use of the specified process of the patent, and that the words relied on by complainant, “or like material,” following after “hard rubber" in the specification, were allowed to remain in the specification because they might properly include the use of other materials which, like hard rubber, would necessitate the protection of the matrix by the specified process, and exclude materials totally different therefrom, such as defendant's earth mixed with shellac, which does not involve the use of such process, and therefore is not in fact a like material.

The decree is affirmed, with costs.

(Circolt Court, E. D. Pennsylvania. February 21, 1907.)

No. 17.

A complainant in a suit in equity against a railroad company held entitled to require a witness to disclose the extent of bis interest in another corporation which owned a majority of the stock of the railroad company. In Equity. On certificate of examiner and exception to crossinterrogatories. Wm. Y. C. Anderson, for complainant. J. W. Bayard and J. G. Johnson, for respondent. HOLLAND, District Judge. The witness, Oscar A. Turner, is a director of the Tonopah Nining Company, which is the owner of twothirds of the stock of the defendant railroad company. This is a controlling interest in the defendant company, and the plaintiff has a right to know the extent of the witness interest in the corporation which controls the defendant company. He should therefore answer the question.

As to the cross-interrogatories, the motion of the plaintiff to strike out is refused. Any questions that may be asked which are not relevant to the issue can be objected to, and they will not be considered on final hearing.

(Circuit Court, E. D. Pennsylvania. February 21, 1907.)

No. 10.

A court will not direct its receiver to dismiss an ejectment suit brought by bim to recover property alleged to have been purcbased with money of the estate, on petition of the defendant therein who holds the legal title, except on clear proof that the property was not so purchased On Rule to Show Cause. V. Gilpin Robinson, for the rule. I J. Williams, opposed.

HOLLAND, District Judge. The properties referred to in this rule were purchased, one August 11th, and the other August 27, 1900, and the Storey Cotton Company was not incorporated until December 7th of the same year. An ejectment suit had been instituted for these properties in the court of common pleas No. 4 of Philadelphia county by the ancillary receiver. It is urged that neither of these properties could have been purchased by proceeds belonging to the Storey Cotton Company. However, the receiver swears in his statement in this suit that Annie F. Stone had no money or property of her own, and that no part of the consideration money was paid by

her, and “that she has no right or interest therein save as holder of the legal title for the benefit of the ancillary receiver."

At the argument counsel for the receiver offered to withdraw in case the petitioner satisfied the receiver that these properties were not purchased out of the moneys of the Storey Cotton Company, and, as the court is asked to direct the receiver to exclude these properties in the ejectment suit, we think the petitioner should establish this fact, as she claims such to be the case in her petition asking the court to make the order. It is a very easy matter for her to do so, and, upon the court being satisfied as to this fact, an order will be made directing the receiver to release these properties from the claim in the ejectment suit in the Philadelphia courts. For the present, the prayer of the petitioner is refused.


(Circuit Court, Ş. D. Georgia, E. D. March 25, 1907.)


Whenever the rights of a party may be affected by a particular govern. mental act, whether it be an act of Congress or of the state Legislature, or of an executive or judicial functionary, either of the state or of the United States, if it be capable of submission at a court having jurisdiction, the final and common arbiter of the constitutional question is the supreme judicial authority of the courts of the United States.

[Ed. Note-For cases in point, see Cent. Dig. vol. 10, Constitutional Law,


There is a settled presumption in favor of the validity of every legislative act. Every reasonable judicial doubt must be resolved in favor of the law. The courts will decide that Congress has transcended its powers, only when that is so plain that they cannot avoid the duty.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Constitutional

Law, $ 46.) 3. SAME-DUTY OF COURTS.

No higher duty rests upon the courts of the United States than to en. force the will of the legislative department of the government, as expressed in a statute, unless such statute be plainly and unmistakably in violation of the Constitution.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Constitutional Law,

8 46.) 4. COMMERCE.

Definitions given.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Commerce, $ 3.) 5. SAME-INSTRUMENTALITIES.

Employés of persons or corporations, engaged therein, are instrumentalities of commerce. Restrictive or benevolent regulation of those employés is within the power of Congress, which may be exercised to its utmost ex. tent, and acknowledges no limitations other than those prescribed in the

Constitution. 6. SAME_POWER OF CONGRESS.

Congress alone by legislation may occupy the whole field of interstate commerce.

[Ed. Notę.--For cases in point, see Cent. Dig. vol. 10, Commerce, $ 5.] 7. SAME.

Illustrations of the exercise of this power by Congress enumerated, making clear that the words “to regulate" import the right and power to

enact laws, and not merely to make rules and regulations. 8. SAME.

When a corporation or other person engages in interstate or foreign commerce, eo instanti, the men who control it, and the corps of its employés, become subject to all those legitimate means which Congress may


Reason for rule, denying to an employé the right to recover for injuries sustained by the negligence of a fellow-servant, in view of modern condi

tions, pronounced archaic. 10. COMMERCE–INTRASTATE COMMERCE.

The purpose of Congress being legitimate, and expressly relating to employés engaged in interstate or foreign commerce, it is immaterial to the validity of the act that somewhere in its operation it may have a casual or contingent effect upon the domain of state legislation.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, States, $ 2.) 11. SAME.

Trade Mark Cases, 100 U. S. 82, 25 L. Ed. 550, and Illinois Central Railroad Company v. McKendree (decided March 17, 1906) 27 Sup. Ct. 153, 203

U. S. 514, distinguished from the act in question. 12. STATES-NATIONAL AND STATE AUTHORITY.

The government of the United States, within the scope of its powers, operates upon every foot of territory in its jurisdiction. It legislates for the whole nation, and is not embarrassed by state lines. Here, however, no right proper to the state, or any of its instrumentalities of govern


The act considered held to be no deprivation of due process of law. Missouri Pacific Railroad Company v. Mackey, 8 Sup. Ct. 1161, 32 L. Ed.



The act of Congress, approved June 11, 1906 (34 Stat, 232, c. 3073), eptitled "An act relating to liability of common carriers in the District of Columbia and territories and common carriers engaged in commerce between the states and between the states and foreign nations to their em

ployés," held to be constitutional. (Syllabus by the Court.)

Action for damages under Act of Congress, approved June 11, 1996. Alexander Akerman and John Randolph Cooper, for plaintiff. Lawton & Cunningham, for defendant.

SPEER, District Judge. The plaintiff is the widow and administratrix of Walter Snead, lately an employé of the Central of Georgia Railway Company. She is a citizen of Georgia, and has brought an action against the Central of Georgia Railway Company, a Georgia corporation. Her claim is for damages occasioned by the death of her husband. He was a bridgeman employed by the defendant company, and at the time of his death was engaged in repairing a bridge upon a line of its railroad in the state of Alabama. It is alleged that through the negligence of other employés of the company he was knocked from the bridge to the ground below and sustained injuries which resulted in his death. No diversity of citizenship is alleged, and the jurisdiction

151 F.-39

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