2. DEMURRER-MULTIFARIOUSNESS-COPYRIGHT. A demurrer on the ground of multifariousness brought against a bill in which thirty different copyrights are sued upon, each copyright covering a letter or portion of a letter in a system of indexing, is not well taken, since the subjectmatter of litigation is in a sense single. 3. SAME-COPYRIGHT-SUBJECT-MATTER-PATENT. A demurrer brought against a bill for infringing a copyright of different portions of an index which, though a possible subject for a patent, is not a good subject for copyright, will be taken. Messrs. Bond, Adams, Pickard & Jackson for the complainant. STATEMENT OF THE CASE. This was a bill alleging infringement of thirty different copyrights covering Amberg's directory system of indexing. Each copyright was for an index covering a letter, or portion of a letter, of the alphabet, so that in the complete system thirty indexes were employed, which had been severally copyrighted. Each index was provided with leaves arranged loosely, so that they could be separated and letters indexed or temporarily filed in their proper places. The defendant demurred on the ground (1) that the bill was multifarious in declaring on several copyrights in one bill, and (2) on the ground that the indexes were not the proper subject of a copyright under the Federal statute. Demurrer sustained. SHOWALTER, J.: I should say in this case that the point of multifariousness is not well taken. All the parts of the copyrighted matter taken together constitute in use a single implement. The subject-matter of litigation is, in a sense, single. It is rather one controversy than a combination of controversies. But upon the main point it seems to me that in getting up the contrivance here copyrighted Mr. Amberg was not an "author," as that word is used in the Federal Constitution, nor is what he produced a "book," as that word is used in the Federal statute. This contrivance, as made and sold by the complainant, does not have the purpose or function of conveying information. It is a mechanism or device for the storage of letters, so that they can be preserved and conveniently found afterward. Until the purchaser of a set of these "indexes" commences to use the same by putting written documents between the leaves such indexes signify nothing. Until then-that is to say, as copyrighted-they are not a medium of information or intelligence, and hence, in my judgment, not a book within the meaning of the copyright laws. A monopoly might, perhaps, have been secured under the patent laws, but I think not under the copyright laws. The bill is therefore dismissed for want of equity. [U. S. Circuit Court-Northern District of New York.] FAIRBANKS WOOD RIM COMPANY r. MOORE. Decided February 12, 1897. 79 O. G., 514. 1. FAIRBANKS and Berlo-RIM FOR BICYCLE-WHEELS-VALID-INVENTION. Letters Patent No. 496,971, granted May 9, 1893, to A. C. Fairbanks and P. J. Berlo, for an improvement in rims for bicycle-wheels, examined and Held valid and a product of inventive faculties. 2. INVENTION. The substitution for a rim made of a single piece of metal of a laminated rim made of a series of sections so constructed as to form a compact, durable, symmetrical, and highly efficient structure involved invention. 3. SAME-PIONEERS IN AN ART-POPULARITY OF DEVICE. The fact that the patentees are the first in an art in which there are many inventors and the fact that their device is the only one now used are significant of invention. Mr. Edward S. Beach, Mr. Nathaniel L. Frothingham, and Mr. Emmett J. Ball for the complainant. Mr. William O. Campbell for the defendant. STATEMENT OF THE CASE. The patent in controversy, No. 496,971, was granted to Fairbanks and Berlo May 9, 1893, for improvements in rims for bicycle-wheels. The invention consists in providing a wood rim for bicycle-wheels in place of the metal rims theretofore used. The rim of the patent is composed of a series of plies of wood of varying course or direction of grain, bent into circular form and cemented together, each section breaking joint with each of the other sections. A bicycle-wheel constructed with this laminated rim is said to be lighter, stiffer, more durable, and more buoyant than the rims of the prior art. The claim is as follows: A rim for bicycle-wheels comprising in its construction a series of sections or plies of wood of varying course or direction of grain, cemented together, the ends of each section breaking joints with the ends of adjacent sections, and the inner surface ƒ being of convex form, and the outer surface y of coucave form, as set forth. COXE, J.: There is but one question to decide-the question of invention. The court is convinced that the introduction into the art of the marked and at the present day universally-recognized improvement of the patent required an exercise of the inventive faculties. It was not the mere substitution of wood for iron. It was the substitution for rim made of a single piece of metal of a laminated rim made of a series of sections so constructed as to form a compact, durable, symmetrical, and bighly efficient structure. After the idea that wood could be used instead of metal was conceived, the real work of invention began. How could wood be utilized? How could a rim be made that would not crack and warp without being so cumbersome as to be useless? Even after a practical rim had been constructed the bicycle community was still incredulous as to the use of wood. It was only after its superiority to metallic rims had been fully demonstrated that it was accepted by the trade. Fairbanks and Berlo were the first to make a wooden bicycle-rim. There was nothing in the prior art to show them how to do this and very little in analogous arts to assist them. Carriage-wheels with the ordinary compression-spokes and reinforced with iron tires had been made with laminated fellies; but there is no pretense that the breakjoint and varying-grain features of the patent are to be found in any of these structures, which are not adapted for use in a wheel provided with suspension-spokes and pneumatic tires. Two significant facts stand unchallenged-first, that the patentees were the first in an art which has attracted a multitude of ingenious inventors to employ a wooden rim, and, second, that to-day this rim is the only one used, all others in the construction of first-class machines having been driven from the market. They certainly have done much to make the modern bicycle a perfect machine. It follows that the complainant is entitled to the usual decree. [U. S. Circuit Court-Southern District of New York.] MATHESON v. CAMPBELL. Decided May 18, 1896. 79 O. G., 684. 1. HOFFMANN AND WEINBErg-Color CoMPOUND-VALID AND INFRInged. Letters Patent No. 345,901, granted July 20, 1886, to Meinhard Hoffmann and Arthur Weinberg, for naphthol-black color compound, examined and Held valid and infringed. 2. PROCESS ANd Product PaTENTS-ANTICIPATION-CHEMICAL IDENTITY. The fact that a coal-tar dye similar to a dye covered by a process and product patent and answering to the chemical tests of the patent was on sale in this country prior to the application is not sufficient to show anticipation where it appears that such prior patent was not identical therewith, as shown by the fact that it was made from a different starting material, was much inferior in quality, and was sold at a much higher price. 3. SAME-VALIDITY OF Product Patent. Where a patent first describes a new and patentable process producing an article chemically or technically identical with an article formerly known, but superior thereto, and the invention is a meritorious one, a valid claim may be made for the product as well as for the process. 15377- -25 4. SAME-INFRINGEMENT-BURDEN OF Proof. In a suit for infringement of a process and product patent covering a composition or chemical product, the complainant has sustained the burden of proof resting on him as to infringement when he shows that defendant's product corresponds to the tests of identity, and the burden is then upon defendant to show that it was not made by the patented process. Mr. Henry P. Wells for the complainant. STATEMENT OF THE CASE. This was a suit in equity by William J. Matheson against John Campbell for alleged infringement of Patent No. 345,901, issued July 20, 1886, to Meinhard Hoffmann and Arthur Weinberg and assigned to complainant. The Circuit Court construed and sustained the patent and found that the defendant's product infringed the same, but left the case open for further proofs as to the date of the sale complained of. (69 Fed. Rep., 597.) Further proofs were accordingly made, and thereafter an order was made for a decree for injunction and accounting. Subsequently, on motion of defendant, a rehearing was granted, and the cause has again been argued to the court. TOWNSEND, J.: Counsel for defendant insists that the court in its original opinion (69 Fed. Rep., 597) has confused a patent for a product with an invention of a process, and has therefore sustained a claim for a product merely because the process by which the product was obtained bas patentable novelty and invention. On a careful reëxamination of said opinion I fail to find any such confusion. It may well be that the patentee should have claimed the process separately, as well as the product of such process. The invention was found to have been meritorious and beneficial to the public. The language of the opinion in which the scope of the patent is stated is as follows: I conclude, therefore, that the multifariousness of the general formula does not invalidate the whole patent, but that said patent may be valid, at least where so limited as to embrace only the product of the special process, definitely stated and applied to naphthylamindisulfonate of sodium, as specifically claimed. Defendant further argues that if the product of the patent is identical with or equivalent to an article in use or on sale in this country prior to the date of the alleged invention it is anticipated, and that the evidence both of complainant's and defendant's experts shows that, although the azo black formerly sold was made from a different starting material-namely, a monosulfo-acid instead of a disulfo-acid-it answers all the tests of the patent and other well-known tests not therein named, and that the azo black is therefore the equivalent of naphthol black, and so anticipates it. The contention on the part of the defendant may be most strongly put as follows: The court has found that a certain black, known as "azo black," was imported into the United States prior to the date of the patent in suit, which is now known to be in fact a naphthol-black and which corresponds with the tests of the patent and certain other tests. The products, therefore, are chemically identical. The defendant's color also corresponds to the tests of the patent and certain other tests and is found to be chemically identical with it. Therefore the defendant forcibly claims, if the defendant's color is an infringement, the azo black is an anticipation, and cites Reed v. Cutter (1 Story, 598; Fed. Cas., No. 11,645) and Coffin v. Ogden (5 O. G., 270; 18 Wall., 124.) He argues that the patentee herein is not the original inventor of the patented product, because such product was known and used prior to his invention, although such knowledge and use were secret. Whatever may be the similarity or equivalency chemically, I do not understand that the azo black was commercially or practically the same thing as the black of the patent in suit. It is true, as the chemical experts state, azo black is now known to be naphthol-black; but it nowhere appears that said color and the patent color are practically identical. In addition to the statements as to non-identity in the orig inal opinion it appears from uncontroverted testimony that the original azo black is not a product embraced within the special process of the patent in suit, but is only covered by the general formula which was rejected by the court. Assuming that this alleged anticipating azo black was publicly sold in this country prior to the application for the patent in suit, it further appears from the testimony of Dr. Schweitzer that in 1887, two years after said application, the Badische manufactory had just stopped the manufacture of this secret coloring-matter and that that coloring-matter rubbed off very badly and was very inferior to naphthol-black, which at that time appeared in the market. It was so inferior to the naphthol-black that the Badische took out a license for manufacturing and selling naphthol-black, which license they used until now. It further appears that this prior azo black was only imported to this country for about eighteen months. It was, therefore, manifestly inferior to the patented naphthol-black, and the latter appears to have entirely superseded the other in actual use. If, as I have concluded, the patented product is superior to said azo black, it is not identical therewith and a patent therefor may be sustained. Furthermore, counsel for complainant shows that the azo black tested by defendant's expert was a sample produced by Dr. Limpach in 1892, and that his tests differ substantially from the tests of the earlier azo black as stated in Schults and Julius' Tables, a recognized authority on coal-tar colors. The further question arises, where a patent first describes a new and patentable process producing a superior article, and where said product is chemically or technically identical with an article formerly known, and a claim is made for the product of the described process, and the invention is meritorious, will the rules of liberal construction |