the combination of that claim. It is not disputed that defendants' device contains a check-valve, and if it be held to infringe the fourth claim it infringes the fifth as well. The third claim contains as an element a second admission of air from the auxiliary reservoir to the brake-cylinder. Manifestly this is a narrower claim than those discussed when the case was here before, and, since the patentee has chosen to make a "second admission of air" material, infringement is not found in a device which substitutes a "single admission of air," although such single admission be continuous. PATENT NO. 376,837. In reversing the former finding of this court as to the first claim of this patent the Court of Appeals did not pass upon the merits. It held only that the question was too doubtful to be resolved upon motion for a preliminary injunction, but should be reserved for final hearing, upon a complete record, where abundant opportunity has been given to reply to testimony, expert or other, and to cross-examine all witnesses. An examination of the record as it now stands has not changed the conclusions of this court as heretofore expressed, and it is therefore unnecessary to do more than refer to the former opinion as stating the reasons for holding the first claim to be infringed. The third and fourth claims have not been passed upon by this court and were not presented to the Court of Appeals. Both of them contain as an element of the combination "a passage establishing communication between said supplemental piston and an auxiliary reservoir." The complainants contend that this passage is to be found in defendant's port p. Inasmuch as this court finds "an auxiliary reservoir" in the space which is contained in the chamber P above the piston and in the port or passage p below the cut-off 14 in the sliding valve, it is manifest that there is no "passage establishing communication" between the supplemental piston and such "reservoir." If this court is right in holding that the space referred to is "an auxiliary reservoir" then it abuts directly on the supplemental piston and any "passage" between the two is dispensed with. For this reason it is thought that the third and fourth claims of No. 376,837 are not infringed. PATENT No. 393,784. The Court of Appeals in this circuit has held that this is a subordinate patent and must receive a narrow construction. The feature which Park introduced into the quick-action operation was the working of the emergency-valve piston by train-pipe pressure. This specification states that the object of the invention is to enable a better, quicker, and more certain action to be had of the pneumatic controlling devices for air-brakes, and at the same time have the valve con * trolling the direct passage of the pressure from the train-pipe to the brake-cylinder under the direct action of the train-pipe pressure. In describing the operation of his device the patentee says: The train-pipe pressure through the pipe Z will act on the under side of the valve S, opening the valve, etc.; and also: It will thus be seen that the valve S is controlled in both opening and closing by and with this construction the train-pipe pressure the train-pipe pressure, # # performs the office of both opening and closing the valve. Many of the claims contain words describing the valve or the valve and passages as "actuated by train-pipe pressure?" or controlling the pressure to the brake-cylinder direct by train-pipe pressure or some equivalent phrase. Other claims there are which contain no such phrase; but, since Park's invention was a device for working the emergency-valve piston by train-pipe pressure, the complainant's expert is entirely correct in the statement that # all (the claims) refer to combinations of parts which relate to the various structural features of a triple valve, in which the extra traverse of the pistons so adjusts the parts that the valve between the train-pipe and the brake-cylinder can be opened by the compressed air in the said train-pipe. The improvement that Park introduced in the art, and has described in his patent, only threw upon the main piston the extra labor of compressing the spring H; the valve S, being a puppetvalve, did not have to be slidden over its seat, while under pressure, by the movement of the piston, but was raised by the air-pressure in the train-pipe. This is thought to be an improvement minor improvement of the Westinghouse Thus it will be seen that all the claims of the Park patent relate patent. * * to that improvement. * The conclusions expressed in the former opinion of this court when granting the preliminary injunction, and which are still adhered to, as to the relations between the defendants' valve and the first claim of Patent No. 376,837, dispose of the contention that such valve infringes the Park patent. All compressed air in any part of the entire brake system behind the engine is or has been train-pipe air. It is compresssed in the main reservoir on the locomotive, and thence passes into the train-pipe proper, and from that train-pipe into its several branches and such chambers connected therewith as may admit of its entry. All agree that while it is still in the train-pipe the force it exerts is "train-pipe pressure." All agree that when train-pipe air has passed through the charging-port into the auxiliary reservoir of the original triple-valve device or its subsequent modifications the force it exerts is "auxiliary-reservoir pressure." This court has found, further, on complainant's contention and against defendants' opposition, that when train-pipe air has passed through some other port or passage into another chamber and has been confined therein and cut off from further connection with the source of supply the force which it exerts is "pressure from an auxiliary reservoir," and because of such finding has held defendants' valve to be an infringement of Patent No. 376,837. If this finding be correct, defendants' valve does not infringe the Park patent, because in that patent the compressed air, whose expansive force lifts the piston, is within a chamber in free communication with the train-pipe. It has not yet passed beyond any barrier which segre gates it from the whole body of train pipe air, and its force may fairly be called "train-pipe pressure," while in the defendants' valve the compressed air, by the dissipation of whose expansive force the piston is induced to move, is within a chamber which has been absolutely cut off (by the slide 14) from the train-pipe. It has been segregated from the general body of train-pipe air into an independent reservoir, and its force may fairly be called "pressure from an auxiliary reservoir." For these reasons it is thought that defendants' "quick-action triple valve B," the device complained of, does not infringe the Park patent. A decree will be entered in accordance with the views above expressed. [Court of Appeals of the District of Columbia.] SOUTHALL et al. v. SEYMOUR, COMMISSIONER OF PATENTS. Decided May 10, 1897. 79 O. G., 1684. APPEAL-DISMISSAL-FAIlure to FilE AND DOCKET CAUSE. The appellant having failed to have his cause filed and docketed, on motion of the appellee the cause was docketed and the appeal dismissed. APPEAL from the Commissioner of Patents. Messrs. Foster & Freeman for the appellants. Mr. W. A. Megrath for the Commissioner of Patents. ALVEY, J.: On motion of Mr. W. A. Megrath, of counsel for the Commissioner of Patents in the above-entitled cause, and he having produced a certificate from the Commissioner of Patents showing that an appeal to this court had been taken, and it appearing to the court that the said appellants have failed to have their cause filed and docketed— Therefore it is now here ordered and adjudged by this court that this appeal be, and the same is hereby, docketed and dismissed, pursuant to the fourteenth rule of this court. [Court of Appeals of the District of Columbia.] MCCREERY v. SEYMOUR, COMMISSIONER OF PATENTS. Decided May 10, 1897. 79 O. G., 1684. APPEAL DISMISSAL-FAILURE TO FILE AND DOCKET CAUSE. The appellant having failed to have his cause filed and docketed, on motion of the appellee the cause was docketed and the appeal dismissed. APPEAL from the Commissioner of Patents. Mr. N. S. Wright and Mr. W. H. Singleton for the appellant. ALVEY, J.: On motion of Mr. W. A. Megrath, of counsel for the Commissioner of Patents in the above-entitled cause, and he having produced a certificate from the Commissioner of Patents showing that an appeal to this court had been taken, and it appearing to the court that the said appellant has failed to have his cause filed and docketed Therefore it is now here ordered and adjudged by this court that this appeal be, and the same is hereby, docketed and dismissed, pursuant to the fourteenth rule of this court. [Court of Appeals of the District of Columbia.] MORRISSEY V. SEYMOUR, COMMISSIONER OF PATENTS. Decided May 10, 1897. 79 O. G., 1684. APPEAL-DISMISSAL-FAILURE TO FILE AND DOCKET Cause. The appellant having failed to have his cause filed and docketed, on motion of the appellee the cause was docketed and the appeal dismissed. APPEAL from the Commissioner of Patents. Messrs. Mason, Fenwick & Lawrence for the appellant. ALVEY, J.: On motion of Mr. W. A. Megrath, of counsel for the Commissioner of Patents in the above-entitled cause, and he having produced a certificate from the Commissioner of Patents showing that an appeal to this court had been taken, and it appearing to the court that the said appellant has failed to have his cause filed and docketed Therefore it is now here ordered and adjudged by this court that this appeal be, and the same is hereby, docketed and dismissed, pursuant to the fourteenth rule of this court. 15377-31 [U. S. Circuit Court of Appeals-Second Circuit.] NATIONAL MACHINE COMPANY v. WHEELER & WILSON MANUFACTURING COMPANY. Decided February 23, 1897. 79 O. G., 1863. 1. OSTERHOUT-MACHINE FOR CUTTING AND STITCHING BUTTONHOLES-NONINFRINGEMENT. Letters Patent No. 447,791, granted March 10, 1891, to James B. Osterhout, for a machine for cutting and stitching buttonholes, are not infringed by a machine made in accordance with the patent to Tebbetts and Doggett, No. 438,655 of October 21, 1890. (72 Fed. Rep., 185, reversed.) 2. ESTOPPEL-INTERFERENCE PROCEEDINGS IN THE PATENT OFFICE-ACQUIES CENCE. Failure of a party to move for dissolution of an interference in the Patent Office is not an acquiescence in the ruling that the inventions, as limited by the prior art there shown, were identical and patentable. While the decision on interference may be res judicata as to priority, it does not preclude either party from raising other questions. APPEALS from the Circuit Court of the United States for the Southern District of New York. Mr. Edwin H. Brown for the complainant. STATEMENT OF THE CASE. These are cross-appeals from a decree of the Circuit Court for the Southern District of New York, which sustained the validity of United States Patent No. 447,791, granted March 10, 1891, to James B. Osterhout, and found infringement of two claims and non-infringement of seven others. The patent is for a machine for cutting and stitching buttonholes. The specification states that one general object of this invention is to provide buttonhole-sewing machines with practically successful cutting mechanisms which shall automatically cut a buttonhole only when the machine is stitching at a predetermined portion, part, or point in the periphery of the buttonhole. The claims in question are as follows: 1. In a buttonhole-sewing machine, the combination, with its stitch-forming and work-moving mechanisms, of a work-cutter and its carrier normally elevated, a depressor which ordinarily does not depress the cutter-carrier and cutter, a cuttercontroller connected to and moving with the said work-moving mechanism, and connections between the said cutter-controller, cutter-carrier, and depressor, whereby the latter is temporarily caused to depress the cutter-carrier and cutter, substantially as set forth. 2. In a buttonhole-sewing machine, the combination, with its stitch-forming aud work moving mechanisms, of a work-cutter and its carrier normally elevated, a depressor which is operated by the needle-actuating mechanism of the sewing-machine, and which ordinarily does not depress the cutter-carrier and cutter, a cuttercontroller connected to and moving with the said work-moving mechanism, and connections between the said cutter-controller, cutter-carrier, and depressor, whereby the latter is temporarily caused to depress the cutter-carrier and cutter, substantially as set forth. |