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The comb attached to the back at the upper end extends contiguous therewith, and the prongs of the comb between their upper ends and points have portions curved toward the back. These elements, in my judgment, are identical with those constituting complainant's first claim. The curvature of the prongs is more strongly marked in defendants' device, and the points of the prongs, in relation to the back of the comb, diverge inwardly instead of outwardly. This feature substantially corresponds to the second claim of the patent. The slight difference in form of the curvature of the prongs is immaterial. The defendants have substantially appropriated the combination of the complainant's device, and the identical result is produced by its use.

The usual decree restraining the defendants from future infringements and for an accounting may be entered.

SIMMONS MFG. CO. V. SOUTHERN SPRING BED CO. et al.

(Circuit Court, N. D. Georgia. May 30, 1904.) 1. PATENTS--INFRINGEMENT-SPRING BED.

The Gail patent, No. 639,222, for a spring bed and seat bottom, is not for a pioneer invention, nor does it show such novelty or improvement over the structures of the prior art as to entitle it to a broad construction, or anything beyond the precise structure shown and described. As so construed, held not infringed. In Equity. Suit for infringement of letters patent No. 639,222 for a spring bed and seat bottom, granted to John F. Gail December 19, 1899. On final hearing.

Dyrenforth, Dyrenforth & Lee and Candler & Thompson, for complainant.

H. Smith and H. C. Peeples, for defendant Southern Spring Bed Co.

PARDEE, Circuit Judge. The case shows by proof and admission that all the elements entering into complainant's patented combination were old, and the combination itself appears to consist merely in bringing together the well-known spring and tie-rod of Mellon's patent of 1885, and the key rod and method of tying in McEntire's patent of 1881; and, so far as novelty of the claimed combination is concerned, the Patent Office might well have stood throughout upon the first decision of the examiner. The file wrapper shows that on the original presentation of Gail's application for patent, which presented some 17 different claims of combinations, the examiner decided as follows:

"Claims 1 to 10, inclusive, and 12, are rejected upon the patent to Mellon, No. 331,523, December 1, 1885, in connection with the patent to McEntire, No. 240,743, April 26, 1881, bed-bottoms of springs. The patent to Mellon shows the frame, springs and tie-rods having integral loops extending through two rings. The patent to McEntire shows a tie-rod having loops which connect adjacent springs, which is considered the equivalent of applicant's tie-rod, and a key-rod passing across the springs and through the loops of the tie-rod. There is believed to be no invention either in using the key-rod shown by McEntire with the tie-rods shown by Mellon; or in substituting the tierods shown by Mellon for the tie-rods shown by McEntire. It is considered immaterial whether the bead Ca of applicant's loop passes through the ring of the adjacent spring from below or from above, but the patent to Bone, No. 582,895, May 18, 1897, bed-bottoms of springs, is cited to show a loop of this character passing through the ring of a spring from below, as claimed in certain of the claims.

"Claims 11, 13, 14, 15 and 16 are rejected upon Mellon, cited.

"Clain 17 is rejected upon the patents to Mellon and McEntire, cited, the bends, d, claimed therein, not conferring patentability thereon, being a common expedient and shown, for instance, in the patent to Laycock, No. 60.919, March 22, 1898, bed-bottoms of springs.

C. A. Mason, Examiner. "Underwood."

The amendments made thereafter were in inserting the words "single parallel” before the word “tie-rods” in the first ten and last claims, the word "adjacent" in part of the claims erasing claims 11, 12, 13, 14, 15, and 16, and inserting in lieu thereof and to the same tenor newly worded claims 11, 12, 13, and 14; and on these amen nents and some argument the Patent Office allowed the patent substantially as originally claimed.

In my opinion, the improvement that was made by Gail in complainant's patent was a matter of mechanical skill, within easy reach of any well-instructed mechanic who had before him the McEntire patent, 240,743, of April 26, 1881, wherein the method of tying tierod and spring is fully indicated in the illustration; the patent of Smith, 269,442, December 19, 1882, wherein the single tie-rod is fully indicated; and the patent of Mellon, 331,523, of 1885, wherein the single parallel tie-rod, V-shaped to connect adjacent springs with the upturned loop to grasp the adjacent spring, was fully shown; to say nothing of 25 or 30 other patents in relation to spring bed bottoms issued between 1881 and December 19, 1899, the date of complainant's patent.

The case, as presented, is one for infringement, and does not require that the validity of complainant's patent shall be passed upon, because the alleged infringing bed-bottom does not interfere with defendant's, unless it should be shown that complainant's patent is a pioneer patent, or such a broad patent that it should be construed to cover mechanical equivalents; and, after having gone carefully through the evidence in the case, and examined attentively the numerous prior patents-bed-bottoms, bed springs, and spring beds-wherein all sorts of springs, tie-rods, and key-rods, such as complainant uses, have been well known and used in the art, I conclude that the complainant has neither a pioneer patent, nor a patent showing such novelty or improvement that it is entitled to any broad construction; and, at best, a patent only for exactly what Gail put together, in the way he put it together. The defendants use a less complicated tie-rod and a more complicated spring than the complainant, and there is some evidence tending to show that their result is better, because the inside springs in their bed are more firmly locked in position than are the inside springs of complainant's bed-an advantage claimed as to durability and noise.

The very able and exhaustivé briefs filed with me show no decided conflict between able counsel as to the law applicable when the facts are ascertained, and therefore I have not found it necessary to cite authorities, but I notice that Singer Manufacturing Co. v. Cramer, 192 U. S. 265, 24 Sup. Ct. 291, 48 L. Ed. 437, published since this case was argued, seems to be full authority for the decision herein rendered.

A decree may be entered dismissing complainant's bill, with costs.

WESTON ELECTRICAL INSTRUMENT CO. V. WHITNEY ELECTRICAL

INSTRUMENT CO. et al.

(Circuit Court, S. D. New York. July 20, 1904.) 1. PATENTS--INFRINGEMENT-ELECTRICAL MEASURING INSTRUMENT.

The Weston patent, No. 392,387, for an electrical measuring apparatus, held valid and infringed on a motion for preliminary injunction. In Equity. Suit for infringement of letters patent No. 392,387 for an electrical measuring apparatus, granted to Edward Weston November 6, 1888. On motion for preliminary injunction.

William Houston Kenyon, for plaintiff.
Clifton V. Edwards, for defendants.

WHEELER, District Judge. This suit is brought upon patent No. 392,387, dated November 6, 1888, and granted to Edward Weston, for an electrical measuring apparatus, which was adjudged to be valid in Weston Electrical Instrument Co. v. Jewell Electrical Instrument Co. et al. (in this court in March, 1904), 128 Fed. 939. It has now been heard upon a notion for a preliminary injunction.

The principal question made now is as to infringement. The parts of the defendant's instrument look quite differently from the corresponding parts of the instrument of the patent, but, notwithstanding these differences in form, they are there in the instrument, and do the same things in substantially the same way. This appears quite well from the description of the two instruments in parallel columns in the affidavit of Frank W. Roller (Defendants' Record on this motion, p. 3). The great thing to be done appears to have been to get the movable coil in its diamagnetic frame into a permanent magnetic field, compactly, and to carry the current to be measured from side to side through the coil, and mor : the coil against steady resistance to measure the current and record the measurement. Weston seems to have accomplished this by mounting the frame by pivots on nonconducting bridge pieces, and carrying the current to be measured to and from the movable coil through springs connected with the frame, furnishing steady resistance, and a pointer connected with the frame, and moving over a scale, to show the movement and the measurement of the current. Any electrical mechanic could provide the permanent magnetic field, and the form of it would not be material, except to permit the movement of the frame carrying the coil. The mounting of the frame on the bridge pieces by pivots, with its arrangement and connections, was the important part of Weston's patented invention. The defendants instruments have the permanent magnetic field provided by a magnet and core of different and perhaps better shapes in some respects, but permitting movement of the frame in an arc of a circle to carry a pointer moving over a scale to indicate the measurement of the current. If these changes of forms are even patentable improvements, the defendants have taken and used the invention of the patent in making and using those improvements. The difference in the form of the parts carrying the frame on pivots supported by the bridge pieces is of the same sort. It does not vary the mechanical operation of the parts. These differences do not, any or all of them, amount to doing the same thing in different ways, but leave the operative parts doing the same things in the same way.

According to these views, the motion should be granted.

LACOMBE, Circuit Judge. Upon re-examination of the record, I concur in the opinion above expressed by Judge WHEELER.

AMERICAN GRAPHOPHONE CO. v. LEEDS & CATLIN CO. et al.

(Circuit Court, S. D. New York. July 9, 1904.)

No. 8,570. 1, PATENTS-SUIT FOR INFRINGEMENT OF Two PATENTS-MULTIFARIOUSNESS.

A bill for the infringement of two patents, although one is for a process and the other for a product, is not multifarious, where both relate to the same article and are capable of being conjointly infringed, as it is alleged in the bill they are by the defendant.

In Equity. Suit for infringement of patents. On demurrer to bill.
Philip Mauro and C. A. L. Massie, for complainant.
Louis Hicks, for defendants.

PLATT, District Judge. The demurrer raises various objections to the bill:

1. That the letters patent are void on their face for lack of invention. In the circumstances of the case, this attack is obviously futile, and my action thereon needs no explanation.

2. That it is multifarious, in that it involves the validity and infringement of two separate patents. The bill avers not only that they are capable of conjoint use, but that they are used conjointly by the complainant, and that the defendants jointly infringe both patents by their product. In a general sense, the demurrer should be taken to admit so important an allegation; but, as the patents themselves have become a part of the bill, it may be that if, upon inspection, there is a manifest inconsistency between the allegation and the meaning of the patents, a dismissal of the bill would be in order. No such situation appears in the case. The Macdonald patent covers, inter alia, a product, and the Jones patent is for a process, and both relate to sound records. If the features of the two inventions can in any way be present and co-operate in a single article, nothing beyond calls for examination. In so far as my views may differ from those expressed in Cons. Flec. Lt. Co. v. Brush-Swan Élec. Lt. Co. (C. C.) 20 Fed. 502, I am unable to follow that case.

1. Pleading in patent infringement suits, see note to Caldwell v. Powell, 19 C. C. A. 595.

See Patents, vol. 38, Cent. Dig. § 518.

3. Certain formal averments relating to the Jones patent are said to be lacking, but the law invoked and the date of the Jones application refute the proposition.

In conclusion, verily the stars in their courses, aided possibly by forces less remote, seem to have fought against the complainant. This matter was heard about the middle of May. Since then a stress of affairs has kept me from the work which accumulated in the New York district. By reason thereof, the defendants have gained nearly two months of time. The demurrer deserved to be overruled in the day and time of the hearing.

Let the demurrer be overruled, and let defendants answer within 10 days.

LOUISVILLE & N. R. CO. v. COULTER, Auditor, et al.

(Circuit Court, E. D. Kentucky. November 9, 1903.)

No. 396.

1. TAXATION-ASSESSMENT-PERCENTAGE OF FAIR CASH V'ALUE.

Evidence considered, and held to sustain the claim of a complainant that property in Kentucky which was subject to equalization by the State Board of Equalization under the statute was assessed for taxation for the year 1902 at not to exceed 80 per cent. of its fair cash value, notwithstanding the requirement of the state Constitution that all property shall

be assessed at its fair cash value. 2. SAME-RAILROADS-METHOD OF VALUATION OF PROPERTY.

Where the railroad commissioners of a state, in fixing the valuation of the property of a railroad company for purposes of taxation by the capitalization plan at a sum upon which the net earnings of the company would pay an annual dividend of 6 per cent., took into consideration the earnings for the four preceding years, which made the assessed value greater than it would have been if based on the earnings for five years instead of four, and greater than it would have been if based on the average market value of the stock and bonds of the company for the preceding five years, they cannot claim that such assessment was less than the fair cash value, on the ground that, if the earnings for the last year alone had been considered, or the highest market value of the stock and bonds at any time during such year taken, the result would have been a higher valuation; the only reasonable rule to pursue in general in such methods of valuation being to take into consideration a series

of years, not less than five. 3. SAME-KENTUCKY STATUTE.

The provision of the Kentucky revenue act of November 11, 1892, p. 302, c. 103, art. 3, § 5, as amended by Act June 9, 1893, p. 991. c. 217, § 4, that in the assessment of the property of a railroad company "that proportion of the value of the capital stock which the length of the lines operated, owned, leased or controlled in this state bears to the lines owned, leased or controlled in this state and elsewhere shall be considered in fixing the value of the corporate franchise of such corporation liable for taxation in this state,” requires the taking into consideration of a line of road owned and operated by a second company, but which is controlled

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