WHITE
v.
E. P. GLEASON MANUF'a CO.
159
WHITE V.
E. P.
GLEASON MANUF'(l
CO.
(Oircuit Oourt, S. D. Ncw York. June 21, 1883.) 1. PATENTS "FOn INVENTIONS-REISSUED PATENT INVALID.
Reissllcrl letters patent No. 7,286, granted to J. 'Yhite, August 29, 187(;, for a are invalid. Gleasun lJanuj'o Co. v. White, 8 FED. REP. 917, affirmed.
2.
SAME-OFFICE OF DrSCLABfER.
A disclaimer can add nothing to a patent. It can take away from tllnt which Lns been descriLed as the invention and claimed as such, so as to Le covercl1 bV the grant of the patent, but it has no office to make the patent cover anything. however clearly shown in the patent, not descrilJed and claimed as a part of the invention.
In Equity. M. Daniel Connolly, for orator. Joseph C. Clayton, for defendant. WHEELER, J. This suit is brought upon reissued letters patent No. 7,286, granted to the orator upon the surrender of original letters No. 162,731, dated April 27,1875, for an improvement in globe. holders. It has been before heard, and upon that hearing it was de· cided that the patent was invalid for want of novelty. White v. son Manuf'g Co. 8 FED. REP. 917; 19 O. G.1494. Since then the orator has filed a disclaimer, the cause has beeu opeued, and the disclaimer, with some other proof, received in evidence, and a rehearing has been had upon the case so made up. The disclaimer could add nothing to the patent. It could take away from what was described as the invention and claimed as such, so as to be coyered by the grant of the patent, but it had no office to make the patent cover anything, however clearly shown in the patent, not so described and claimed as a part of the invention. The patent was for an improvement in globe-holders, not for a globe-holder as a new tbing. The improvement consisted in elastic arms, with hooks or catches at the ends for receiving and holding the lower edge of the globe. The patentee, in bis specification, said: in,ention consists broadly of a glohe or gas shado-holder or support.
formed with spring or elastic arms, terminating in hooks or catches, for embracing the lower edge or t1ange around the neck or lower opening of the globe or gas shade. These arms are to be fastened to a burner in any suitable manner, as by riveting throu::rh a disk having a central aperture, throu:;rh u'hich said burner passes."
There were two claims; the first was for a globe-holder having such arms, and the second was for a globe-holder having a disk or center, with an aperture for the burner and such arms. It is obvious that he did not think he had invented anything but these armH, and did lJ'Ot intend to, and did not, in fact, describe and claim anything but globe-holders "ith snch arms as bis. He did not intend to, and diq
160
FEDERAL REPORTER
not, in fact, patent any center. The disclaimer strikes out the words "broadly," and "in any suitable manner as," in the description, and the word "or" in the second claim. These changes make both the description and claim cover the disk as a center, with the arms riveted to it, as a part of the invention. Such spring-arms in globe-holders were not new, if disk centers were, but were shown in letters patent No. 90,287, dated May 18, 18l.i9, and granted to Charles M. Mitchell for an improvement in lamp shade-holders, and in globe-holders made according to that patent, and were founu to have been shown in the defendant's Exhibit C, C, in the former decision, although that find. ing is now somewhat open again, upon a further examination of some of the witnesses. The effed of the disolaimer is to change the invention covered by the patent from the arms to the cellter. If the arms Lad Leen new he conld have a patent for globe-holders with such arms, and if the centers were ne IV he could for such centers; but having taken a patent for globe-holders \lith such arms, he could not, by disclaimer, change it to a patent for a globe-holder with such centers, although the centers were well shown. Snch changes appertain to reissues and not to disclaimers. This view renders it unnecessary to re-examine the C}nestion as to Exhibit C, C, or to decide whether the disk center of l\litcllell'" patent and globe-holder is a full anticipation of tl;9 one now r.laimed in this patent. Let there again be a dl.:cr"e dislllissing the bill of complaint, with co::>ts.
r-:AT. BANK OF NEW YOI:I{ t1. BROWN,
161
MERCHANTS' NAT. DANK OF NEW YORK V. BnOWN.1
(Oircuit Oo-urt, E. D. LOllisiana.
June, 1883.)·
1.
OF CARF:S. The petition for removal mnot aver tllut tl,e parties nrc citi7ens of anoUler state; un averment that tIwy are residents of another staLe is not sutlicient. JUI:ISDICTION.
As the jurisrliction of the state court has never heen lawfully divesterl, it, follows that tllis court has never acquired jurisdiction. The case has never lH'cn removed from the slate eourt to tid" eourt. It cannot, tlwrdore, Le reLlunded, Lut all procecdJllgs in Lllis court wil1Le dislllis.:;eu,
On Hotion to Rrmand. E. J{owm·d McCaleb, for plaintiff. John flay, for defendant. PARDEE, J. In this case the court notires from tl1e recorrl and supplemental record the following proceeJings in the state court:
(1) That a jl1rlgment by defalllt was entered against defendant on the tenth day of Febrllary, Itlea; (:!) that the petitioll for removal was presellted and flied on the thirteenth day of Fehrllary, and the application refllsed on the same day; (:3) it final jlldgillent was rendered confirming the dpfalllt, Feb'lIary 14, 18e3; (4) an answer, plpading the gPlleral denial, was filed Febrllary 15, HiSS, but without asille tile defalllt or the (illal jlldgillent of confirmation rellderetllhe day previous; (5) 011 the fiftpellthof Fehruarya motion for a new trial was mal!e; (li) on the twentieth of Fehruary, loea, the petition for certiorari was preseuted to this court, the order iSSilell, and 011 tlte twentyser'OIH! of February. 1883, this petition was filel!' In this petition for certiorari, presented aud filed after tIle trial of the cause allll rendition of judglllellt in the state court, is the first averlllent of the defendant's citizenship.
It is admitted that neither in the record nor in the petition for removal is there any averment whatever of defendant's citizenship, showing that either (1) at tile time of the commencement of the action, or (2) at the time of the application for removal, she was a citiZen of a different state from the plaintiff. Beede v. Cheeney, 5 FED. REP. 388; Kaeiser v. Ill. Cent. 1l. Co. 6 FED. REP. 1; Smith v. Horton, 7 FED. REP. 270; Sherman v. 1tIanllf'g Co. 11 FED. REP. 852. The petition for removal must a vel' that the parties are citizens of another state; an averment that they are residents of another state is not sufficient. Parker v. Overman, 18 How. 137; Bill.Qlwm v. CaLot, 3 Dull. 382; Abercrombie v. Dupuis, 1 Cranch, 343; Wood v. IV"gllon, 2 Cranch, D. It being conceoed that the requisite showing not having been made either in the petition for removal or in the record, it is clear that state court properly refused to surrender its jurisdiction on thtl fact:> und pleadings appearing before it. Ineported by Joseph P. llornor, Esq., of the New Orleans bar.
v.17,no.3-11