THOMAS et al. v. WILLIAMS.

(Vircuit Court, D. Connecticut. May 4, 1888.)

PATENTS FOR INVENTIONS-INFRINGEMENT-BUSTLES.

The first claim of patent No. 164,340, issued June 8, 1875, to Amos W. Thomas, for an improvement in bustles, is as follows: "In a bustle, a base bow formed or combined with upright extensions or ribs, which rest against the person of the wearer, and provided with spiral curves arranged so as to permit said bow to fold upwardly towards the waistband, and cause it to spring downwardly when impact is released." Held, that defendant's bustle, which has an upper rib as one of a series of ribs which compose the bustle, but which has not the upright extension of the Thomas patent, does not infringe it.

In Equity. Bill for infringement of patent. On motion for injunction. pendente lite.

Sherman H. Hubbard, for plaintiffs.

John P. Bartlett, for defendant.

SHIPMAN, J. This is a motion for an injunction, pendente lite, to restrain the defendant from the alleged infringement of letters patent No. 164,340, dated June 8, 1875, to Amos W. Thomas, for an improvement in bustles or tournures. The patentee says, in his specification, that his invention has particular reference-"First, to forming the lower bow with a circle at the point where it bends upwardly to the waistband; and, secondly, to the combination, with this spring bow, of the upper bows, which are attached to it by tape or equivalent means, in such manner that they will be caused to expand when it springs outwardly." The base bow is bent to form coiled springs at the two corners, whence it proceeds in upright extensions, which rest against the person of the wearer, to their points of attachment at the waistbands. The base bow, with its upright side extensions, thus forms a frame work which supports the other bows, and, by means of the coiled springs at its corners, gives elasticity to the whole device. The bustle has "a series of contour bows," the ends of which are attached to a strip which extends along the upright extensions, and the points of the attachment are in a row parallel to said extensions. A tape or cord proceeds from the waistband to the base bow, being secured intermediately to each one of the contour bows, which, by means of this connection, are drawn out when the base bow expands. The first claim and the only one which is said to be infringed, is as follows:

“(1) In a bustle, a base bow, F, formed or combined with upright extensions or ribs, F, which rest against the person of the wearer, and provided with spiral curves, f, f, arranged so as to permit said bow to fold upwardly towards the waistband, and cause it to spring downwardly when impact is released, substantially as shown and set forth."

The defendant's bustle consists of a series of bows. The ends of the lower and upper bows are fastened to the arms of a pair of coiled springs, and by means of this connection the bustle is expanded. All the bows

are loosely jointed to the coils of these springs and radiate from a common center. The series of bows is secured by the top bow to a waistband, and is connected together at the centers of the bows by a tape which is secured to each of them. The upper and the lower bows are directly and firmly connected to each other by the arms of the coiled springs, but the upper bow is simply a bow, and not an upright extension of the base bow, and in that manner forming part of a frame-work by which the contour bows are supported. I do not regard the fact that the upper and lower bows are not integral as of importance. As this patent has never been judicially construed, I shall not undertake, upon this motion, to construe it definitely, but I shall simply state what now seems to be the proper meaning of the first claim. It is stated in one of the affidavits, and, I have no doubt, with correctness, that the Thomas bustle first used coiled springs to produce the required elasticity, and further that the validity of the patent has been recognized, after careful investigation, by skilled solicitors and lawyers. The important question upon this motion is not whether the patent is valid, but whether it is clear that the Williams bustle is an infringement of it. It is urged that the upper rib of the Williams device necessarily rests against the person of the wearer, and is combined and connected with the base bow by means of the coiled springs, with which the latter is also provided, and which act solely to permit the lower bow to fly upwardly towards the waistband, and to cause it to spring downwardly when impact is released. This is true, and if no additional requisites to an infringement are necessary, the patent covers the Williams device, and would, in effect, cover any bustle wherein the upper and lower ribs are connected together, and made elastic, by coiled springs. My present impression is that the first claim of the patent, reasonably construed, requires that the base bow should be formed on or combined with upright extensions, thus making a framework for the bustle, and that the claim is for a frame-work composed of one or more pieces of wire, one portion to serve as a lower bow, another portion, being an upright extension of the base bow, to extend upward to the waistband, and rest against the person of the wearer, with intermediate portions or coiled springs, acting as elastic joints for the purpose named in the claims, the frame-work furnishing a support for the separate contour bows. The Williams device has no upright extension or rib in the sense in which those words are used in the patent. It has an upper rib, which is one of the series of ribs which compose the bustle; but it has not the upright extension of the Thomas patent, which is a different thing from its upper rib. The motion is denied.

CONSOLIDATED BUNGING APPARATUS Co. v. P. SCHOENHOFEN BREWING CO.

(Circuit Court, N. D. Illinois. May 21, 1888.)

1. PATENTS FOR INVENTIONS-PATENTABILITY-NOVELTY.

Reissued letters patent No. 10,284, granted February 6, 1883, to J. M. Pfaudler and others, for apparatus for regulating the pressure of gas in a series of fermenting vessels, by a pipe leading from each vessel to a common receptacle, whence the gas, on reaching a certain pressure, is allowed to escape, are void for want of novelty, similar devices having been well known in the art long before, as shown in patent granted in July, 1841, to C. O. Walpers, for a "fermenting apparatus," and in patent granted in March, 1867, to George Wallace for a "fermenting vat;" apparatus similar in operation and result having also been used by H. Sturm, in Indianapolis, in 1861, and by Peter Andrews, at Covington, in 1867.

2. SAME.

The contention that the gas-pipes in complainant's patent are designed to extend only into the gas chambers of the vessels, and not into the fermenting liquor as in the prior devices, if borne out by the claims of the patent, would not show the accomplishment of any other purpose than that of said devices, in equalizing the pressure, and in any case such an arrangement is anticipated by the device of F. M. Horning, patented in 1868, for regulating the pressure in a series of steam-boilers by pipes leading from their steam-spaces to a common receptacle.

In Equity. Bill for infringement.

W. W. Leggett, Banning & Banning, and Dyrenfurth & Dyrenfurth, for complainant.

B. F. Thurston and C. P. Jacobs, for defendant.

BLODGETT, J. The bill in this case charges the defendant with the infringement of reissued letters patent No. 10,284, granted February 6, 1883, to J. M. Pfaudler, E. J. Kelsey, J. Sullivan, and J. Sargent, "for apparatus for regulating the pressure in a series of fermenting vessels," the original patent having been granted to Pfaudler on the 2d day of July, 1878, and the application for the reissue having been filed August 26, 1879. The invention is stated in the specifications to have for its object "to provide an effective apparatus for equalizing the pressure in a series of hogsheads or other vessels containing beer, wines, or other liquids in a state of fermentation, and for regulating the pressure of the gas caused by such fermentation, so that it shall not exceed a certain number of pounds to the square inch, previously determined and gauged in said apparatus." The apparatus described in the specification consists of pipes leading from two or more fermenting tubs or vessels into a common gas receptacle or holder, from which the gas will be allowed to escape when the pressure reaches a certain limit, this limit being determined either by the ordinary pressure gauge, or by a water column, or any other device which will regulate the pressure, and allow a discharge when that pressure limit is exceeded; it being claimed that by the operation of this device the fermentation in the connected vessels is equalized, so that the contents of the connected vessels are kept in substantially the same fermenting condition. The patent contains seven claims, but infringement

is insisted upon in this case of only the first, second, sixth, and seventh claims, which are as follows:

"(1) Apparatus for equalizing and limiting the pressure of gas in a series of closed fermenting vessels, and permitting free access of the gas from one vessel to another throughout the series, consisting of separate gas conduits for each vessel, constructed, substantially as described, to tap the gas space of each vessel, a common closed conduit with which all said vessel-conduits communicate, and a pressure regulator governing the escape of gas from such common conduit whenever the pressure shall exceed a previously determined limit.

"(2) Apparatus for equalizing, limiting, and indicating the pressure in a series of closed fermenting vessels, and permitting a free access of the gas from one vessel to another throughout the series, consisting of separate gas conduits for each vessel, constructed, substantially as described, to tap the gas space of each vessel, a common closed conduit into which said vessel-conduits lead, a pressure regulator constructed to permit an escape of gas from said common conduit whenever the pressure shall have reached a previously determined limit, and a pressure indicating gauge."

"(6) A gas receiver, provided with one or more safety-valves and apparatus for gauging the pressure, and in communication with said receiver a series of vessel-conduits for permitting a free access of gas from one vessel to another, throughout a series of closed fermenting vessels, each conduit constructed to connect with the gas space of its vessel.

"(7) An apparatus for equalizing the pressure of gas in a series of closed fermenting vessels, and permitting a free access of the gas from one vessel to another, throughout the series; separate conduits for each vessel; a common gas receiver, with which said vessel-conduits communicate; a pressure regulator, governing an escape orifice, whereby gas in excess of a fixed limit of pressure is permitted to escape; and, in connection with said escape orifice, a conduit for carrying away the said escaping gas, substantially as described."

The defense mainly relied upon is that the patent is void for want of novelty. The proof in the case shows that devices for equalizing the pressure in a series of vessels containing liquids in a state of fermentation were well known in the art long before this inventor entered the field. Such devices are shown in the patent granted in July, 1841, to C. O. Walpers, for a "fermenting apparatus;" and in a patent granted in March, 1867, to George Wallace, for a "fermenting vat;" and it is further insisted by the defendant that the apparatus shown and described in this patent has long been in use for the purpose of equalizing the pressure of steam in a battery of steam-boilers; and also, further, that apparatus similar in its operation and result was put in public use by H. Sturm, at Indianapolis, Ind., as early as 1861, and also by Peter Andrews in the distillery of Boyle, Miller & Co., at Covington, Ky., as early as 1867. Defendant's proof also tends to show several other anticipating uses, but I do not deem it necessary to consider or discuss them for the purposes of this case. It is objected on the part of the complainant that the Walpers and Wallace devices show that the gas-pipes leading from the several fermenting vessels into the common gas receptacle or equalizing pipe extended down into the fermenting liquid, and that, therefore, they do not anticipate the complainant's device. It may be said, I think, that it is only inferentially and argumentatively by means

of the disclaimer in the complainant's patent that any conclusion can be drawn that it was intended that the pipes should only tap the gas chamber, and should not extend into the fermenting liquor; there being no express statement in the specifications that the connecting pipes shall only tap the gas spaces of their respective fermenting vessels. But, waiving the question as to whether the complainant's patent confines the construction to pipes which shall merely tap the gas chamber of the fermenting vessel, it is sufficient to say that it is obvious that, where two closed vessels or tubs containing liquids in the process of fermentation are connected by pipes,-whether such pipes only tap their respective gas chambers or whether they extend into the liquid,-the effect of such action will be to equalize the pressure in the vessels so connected. And it is equally obvious that, whether the pipes only extend into the gas space, or whether they shall be extended into the liquid, depends upon the results or purposes for which the equalization of pressure is desired. If, for instance, it is desired to use this apparatus in connection with the ripening of beer, in the "kreusen stage," where a slight fermentation is to be kept up while the beer is undergoing the process of clarification in the shavings casks, the connecting pipes should only extend into the gas space, so as to quietly draw off the gas as it is evolved by fermentation into the common gas chamber or receiver, where it is allowed to escape into the open air when the pressure reaches a predetermined point; while it is equally clear that, if it were desired to stimulate fermentation in the respective casks, such results would be more readily obtained by causing the gas from the tub or vessel in the condition of most active fermentation to be discharged into the liquid of the other vessel. But this would, of course, prevent the clarification or settling of the contents of the vessels so connected. I think, however, no one can even casually inspect the drawings of the Wallace and Walpers apparatus, as shown in their respective patents, without seeing that beyond doubt the apparatus described in both their patents would equalize the pressure in the connected fermenting vessels. A sketch of the Sturm ap

paratus is shown upon page 19 of the defendant's record, and is only intended as an illustration from memory of the device which Gen. Sturm testified he constructed and put in operation in breweries in the city of Indianapolis during the spring of 1861, or possibly a little earlier; and it appears from the testimony of Gen. Sturm and his illustrative drawing that this apparatus was only intended to allow the escape of the gas from the gas spaces above the liquids in the connected vessels or casks. The Andrews apparatus was put in use in a distillery, and was intended to equalize the pressure in the mash tubs while in the fermenting process; and, as testified to by Mr. Andrews, the pipes in his apparatus did not extend into the liquid, but only reached into the gas space, so as to carry off the gas as it was evolved in the respective vessels, and equalize the pressure between them. I do not understand, either from the oral argument or briefs of complainant's counsel, that the fact is seriously contested that Sturm and Andrews each constructed apparatus and put them in use at the times and places to which they testify, which were