demurrer and dismissed the bill, "but without prejudice to the complainant's right to proceed at law for damages and profits." From this decree an appeal was taken to this court.

It appears in the bill that the complainant became the owner of the patent on May 25, 1886. On April 26, 1895, it filed a bill in the United States Circuit Court for the Eastern District of Pennsylvania against the Carnegie Steel Company, Limited, alleging infringement. On July 11, 1898, that court awarded a decree in its favor, adjudging the patent valid, and sustaining the charge of infringement. 89 Fed. 343. From this decree an appeal was taken to the Circuit Court of Appeals, and on October 21, 1898, the decree below was affirmed by stipulation. 90 Fed. 829, 33 C. C. A. 387. In this case not only was the validity of the patent upheld, but the nature and limits of the patented improvement defined. Within less than six months after the determination of the litigation with the Carnegie Steel Company, Limited, this suit was instituted.

1. The court below apparently took the view that its jurisdiction in equity was dependent upon the right of the complainant to a preliminary injunction upon the bill as filed, and therefore held the verification upon information and belief insufficient. But there was no attempt to use the bill as evidence to secure an injunction pendente lite. Nor was there any need to do so, in order to sustain the jurisdiction of the court. The bill was filed April 10th. The patent did not expire until July 8th. Under the rules the answer of the defendant was due June 5th, more than a month before the patent expired. The bill, after describing the patent, averring its ownership by the complainant, and setting forth the adjudication sustaining it, charged the defendant with infringement, and called for answers to certain interrogatories calculated to clear up any doubt upon the point of infringement. If the defendant had answered upon the rule day, June 5th, admitting the use of the patented process, or if it had failed to plead, and allowed the bill to be taken pro confesso, in either event the complainant would have been entitled to a permanent injunction a month before the expiration of the patent. The fact that the defendant failed to comply with the rules cannot prejudice the complainant. The complainant had reason to expect the answer on the rule day, and on each day thereafter until the defendant filed its pleading. For these reasons, it was not necessary to verify the bill in positive terms. Hughes v. Northern Pacific Railway Co. (C. C.) 18 Fed. 106, 110; Black v. H. G. Allen Co. (C. C.) 42 Fed. 618, 622, 9 L. R. A. 433; Burns v. Lynde, 6 Allen, 305; Moore v. Cheeseman, 23 Mich. 332; Robinson v. Baugh, 31 Mich. 290, 293; Hawkins v. Hunt, 14 Ill. 42, 44, 56 Am. Dec. 487. Sand Creek Turnpike Co. v. Robbins, 41 Ind. 79, 81.

2. What has thus far been said indicates the view we entertain-that the bill was filed long enough before the expiration of the patent to give a court of equity jurisdiction of the case. The bill was filed nearly three months before the expiration of the patent, and contained prayers for a preliminary and a perpetual injunction. The patent had yet a month to run after the defendant was required to answer under the rules. It was therefore clearly within the power of the court,

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when the suit was begun, not only, upon proper proof, to grant a preliminary injunction, but, either by a decree pro confesso, in case of default, or upon the bill and answer, if an answer should be filed within rules, to dispose of the case finally, by awarding a permanent injunction, before the expiration of the patent. The conditions at the time the bill was filed thus availing to give the court jurisdiction, both for the purpose of a preliminary injunction and of a permanent decree, during the life of the patent, such jurisdiction could not be defeated by subsequent happenings, whether due to the delay of the defendant or the contingencies of litigation. New York Grape Sugar Co. v. Peoria Grape Sugar Co. (C. Č.) 21 Fed. 878; Brooks v. Miller (C. C.) 28 Fed. 615; Singer Mfg. Co. v. Wilson Sewing Machine Co. (C. C.) 38 Fed. 586; American Cable Railway Co. v. Chicago City Railway Co. (C. C.) 41 Fed. 522; Keyes v. Mfg. Co. (C. C.) 45 Fed. 199; Ross v. City of Ft. Wayne, 63 Fed. 466, 11 C. C. A. 288; Chinnock v. Paterson Tel. Co. (C. C.) 110 Fed. 199; Clark v. Wooster, 119 U. S. 322, 7 Sup. Ct. 217, 30 L. Ed. 392; Beedle v. Bennett, 122 U. S. 71, 7 Sup. Ct. 1090, 30 L. Ed. 1074; Busch v. Jones, 184 U. S. 598, 22 Sup. Ct. 511, 46 L. Ed. 707.

3. There is nothing in the record to sustain the charge of laches on the part of the complainant. The infringement by the Carnegie Company is charged to have occurred "in or about the year 1895." The suit against the company was instituted "on or about the 26th day of April, 1895." That suit was finally determined in favor of the complainant on October 21, 1898. Such pending litigation involving the validity and construction of the patent was sufficient reason for not bringing other suits for infringement until the patent should be finally adjudicated. Edison Electric Light Co. v. Sawyer, 53 Fed. 592, 3 C. C. A. 605; Taylor v. Sawyer Spindle Co., 75 Fed. 301, 22 C. C. A. 203; New York Filter Mfg. Co. v. Loomis-Manning Filter Co. (C. C.) 91 Fed. 421. Less than six months after the patent was thus adjudicated, this suit was instituted. In this there was obviously no unreasonable delay. Stearns-Roger Mfg. Co. v. Brown, 114 Fed. 939, 944, 52 C. C. A. 559.

The averment in the bill that the defendant, "within the said Eastern District of Michigan, and since the 1st day of January, 1893," unlawfully used a process substantially the same as that protected by the patent of the complainant, is not fairly open to the construction that the infringement charged began on the 1st day of January, 1893, and has continued ever since. The natural and reasonable construction is that the infringement charged occurred after or subsequent to January 1, 1893, without specifying precisely when. Kaolatype Engraving Co. v. Hoke (C. C.) 30 Fed. 444, 445; Wyckoff v. Wagner Typewriter Co. (C. C.) 88 Fed. 515.

The decree must be reversed and the case remanded, with directions to overrule the demurrer and require the defendant to answer.

BRADLEY v. ECCLES.

(Circuit Court, N. D. New York. May 23, 1903.)

No. 6,928.

1. PATENTS-VALIDITY AND INFRINGEMENT-THILL COUPLING.

The Bradley patent, No. 609,928, for a thill coupling, consisting of a divided draft-eye, having spherical recesses in its jaws, and a spherical wrist or knuckle on the thill or pole iron, adapted to fit in such recesses in combination with a packing between the two to prevent rattling, was not anticipated, and discloses invention; the device, as a whole, being a distinct and notable improvement over those of the prior art. Also held infringed.

In Equity.

The bill in equity in this cause was filed for the purpose of procuring an accounting and an injunction because of the alleged infringement of complainant's letters patent No. 609,928, dated August 30, 1898, for thill coupling. On the trial the defendant offered no evidence of consequence, except by way of cross-examination of complainant's witnesses-seeming to rely upon the alleged invalidity of the complainant's patent by reason of alleged anticipation-and the defendant put in evidence several patents alleged to show anticipation. Howard P. Denison, for complainant.

William A. Megrath, for defendant.

RAY, District Judge. The object of the complainant's invention, as stated in the letters patent itself, is "to provide the coupling with a packing which effectually prevents rattling, and which is very durable." The complainant also states that he has invented a new and useful improvement in thill couplings, of which the following is a specification. He says:

This invention relates to that class of thill couplings which comprise a divided draft-eye on the vehicle, and a spherical wrist or knuckle on the thill or pole iron, which is adapted to be seated in the draft-eye.

The thill coupling is secured to the axle by means of a clip which securely and effectually fastens it. It consists of a lower fixed jaw secured to the under side of the axle, and projects forwardly therefrom; a movable upper jaw, which is hinged to the front end of the fixed or lower jaw; a clamping lever arranged underneath the fixed jaw, and pivoted to the end of a bent tension-spring; and a bail or loop which connects the lever with the movable jaw. The fixed and movable jaws constitute the draft-eye. The wrist or knuckle of the thill or pole iron is spherical in form, and is generally arranged, and should be arranged, between two side bars of the thill-iron. There is a cavity between the upper and lower jaws, into which the spherical knuckle of the thill or pole iron fits. The spherical packing is intended to surround the wrist or knuckle of the thill or pole, and when in place is seated in the cavities of the jaws of the draft-eye. This packing is made usually of a flat piece of hard oak leather, so bent and molded by pressure as to have the required spherical form, but with the open joint extending along one side so that this split packing will

retain its shape when not in use or place, but can be sprung over the wrist or knuckle. This packing is constructed with truncated ends, so arranged at right angles to the open joint at the ends thereof that the packing straddles the wrist of the thill-iron, while it entirely envelops the spherical knuckle, and separates the same from the metallic surface of the surrounding spherical socket, which consists of the cavity within and between the upper and lower jaws spoken of. As this packing is seated in the spherical recesses of the jaws of the draft-eye, it is, when the thill coupling is ready for use, firmly clamped therein; and as the pressure of the jaws falls with greatest force upon the outer side of the packing, which outer side is larger in area and diameter than the inner side, the packing is rigidly held in the drafteye, and prevented from turning in the same when the wrist itself turns, and hence the wrist or knuckle turns in the packing. The friction between the outer side of the spherical packing and the drafteye is greater than that between the inner side of the packing and the wrist; and the consequence is that the wrist turns in the packing, while the packing is held stationary in the draft-eye. The inner surface of the packing wears smooth, and forms a very perfect bearing for the wrist or knuckle to work in. By contriving and adjusting the packing in this manner, the rattling of the thill coupling in the sockets between the upper and lower jaws is not only prevented; but the twisting or wringing of the packing in the draft-eye, which had heretofore been common and destructive in cylindrical packing, is entirely avoided, and the life of the packing greatly lengthened. The specifications also speak of tying the edges of the packing together with fine wire so as to prevent its detachment from the wrist when removed from the draft-eye. The specifications also state that, while the packing is preferably of leather, any other suitable material may be used, and it is also stated that this packing may be composed of separate halves.

The complainant claims as his invention:

The combination with a draft-eye having spherical recesses in its jaws, and a draft-iron having a spherical knuckle, of an interposed spherical packing, provided with an open longitudinal joint along its side, and with truncated ends at the ends of said joint, said packing enveloping the knuckle entirely, and separating the same from the spherical bearing-surfaces of the surrounding draft-eye, substantially as set forth.

It cannot be successfully contended that this is not a most useful invention. It has come into common use, and is regarded as indispensable by all who use vehicles attached to and drawn by animals by means of a pole or thills. It is quite true that pieces of rawhide, cloth, or leather of any description, placed in the spherical recesses beneath the wrist or knuckle of the thill or pole, and also above before the draft-eye is closed and fastened, will form a sort of substitute for the packing described. So pieces of flat leather so placed, the one piece above and the other piece below, if cut of the right size and thickness, will constitute a very inferior substitute for this packing; but such substitutes are not the equivalent of the packing described, either in appearance, design, or usefulness, and all substitutes of that description used prior to the complainant's invention were of an inferi

or character, and did not serve the purpose for which designed, except to a very slight extent. A thill coupling with a metal draft-eye, into which is fitted a metal wrist or knuckle, is sure to prove unsatisfactory and unsalable, unless fitted with a proper packing, made of proper or durable material, so constructed and shaped as to be easily handled and fitted in place, and so constructed and adjusted as to prevent rattling or movement of the wrist or knuckle up or down, sidewise or backward and forward, while it allows the knuckle to turn freely. within the packing without undue wear. The complainant has invented such a coupling in combination with such a packing, and they go together and are inseparable. The thill coupling without this packing is as incomplete and undesirable, almost, as a sawmill without a saw. There is no want of novelty in this invention, and the fact that all the parts, if cut up fine enough, are composed of well-known materials in well-known shapes, is immaterial, even if true, so long as they are put together in a new way, and in such a manner as to form a new combination and produce new and useful results, not before attained. This the complainant has done. He has accomplished this result after years of hard work and study and experiment. He has expended thousands of dollars, and sold hundreds of thousands of these couplings. The defendant has copied the complainant exactly in all material respects, for the purpose of attaining precisely the same end, and so has infringed the complainant's patent. He did not, could not, produce this coupling, with this packing, until he had sent men to study and copy the work of the complainant.

This court has carefully examined and studied the construction and uses of the patents claimed by the defendant to show anticipation, viz.: Letters patent No. 279,043, granted to H. Temple June 5, 1883; No. 357,221, granted to D. Murray February 8, 1887; No. 377,861, granted to D. Murray February 14, 1888; No. 485,856, granted to C. C. Bradley November 8, 1892; No. 341,235, granted to W. H. Hannan May 4, 1886; No. 463,616, granted to G. L. and F. S. Blackman November 24, 1891; also Canadian letters patent No. 29,891, granted to D. Murray September 18, 1888-and is of the opinion and holds that the defense of anticipation is not made out.

The Bradley patent of November 8, 1892, does show a drafteye having spherical recesses in its jaws, and also a draft-iron having a spherical knuckle intended to fit in the recesses, as does the patent in suit. But they are not the same-in fact, are quite different, both in design, operation, and results. The same may be said of the Blackman patent and of the Murray patent and of the others referred to.

The truth is that prior patentees had for a long time struggled with the problem of inventing thill couplings with recesses to receive the knuckle at the end of the thill or pole, with such packing properly fitted, that rattling and undue wear and squeaking might be done away with, and so adjusted and attached as to be easily handled, and the user free from danger. Several had succeeded to an extent, but no one had made a success, and it remained for the complainant in this action to so combine various materials in a new way and form with new designs in many instances as to produce the desired result.