434
FEDER.\L REPORTER.
language is "such and denounces the making of a false ,fqr the purpose of obtaining the payment or approval of such a claim. Is the word "claim" used in the same sense in this part of ,the section, or is it narrowed and limited so as to refer only to such daimsas have been already,presented, and are pending for action? and ordinarily the same meaning would he understood. The.Cfl'Be cited, U. S. v. Mi8kell,8Wpra, does not decide anything to the contra,ry. It simply holds that the claim must be false, as well as the or deposition, and that a false affidavit to sustain a just and true ,claim is not within the denunciation of the section. , Nor is there any reason, in morals or law for ,thus narrowing the meaning. He who makes a false deposition to-day {<;Ir the purpose of obtaining the approval or Payment of a false, claim fo be, presented" to-morrow deserves punishment, aa,justly as he who makes a like deposition in aupport of such a ,, , . claim,presented yesterday. Finally,.it may be remark6d that it is clearly charged t that the claim was falsB,;, t,hat the depositioDwas false. ,qf the falsity is averred, as well as the purpose to use the false deposition in obtaining the false claim. ,While a defendant ,should be formed, in the, in,dictment of the exact and full chlll'gemade against him, or imperfection in z.natter of form onlY,---and thisi,J:lcludes yet the not teqdto,hisprejudice, will St.V.,S.; U. S. v.Notdks,l U. S.v.J.aclrson" Fed,. 502. " to quash will over,ruled. ," , .; I,.'
FrUEYt1. LITTLEFrELD SfOVE Co. and another.
:,. ,<awcuit, Gourt, No D· , . .: i.
"
, -
York. . .
2,: i887:) i ' ,
The first claim of letters patent No. 236,425, granted to Giles E. Filley, for an in cooking-stoves, by having one or both 0 the,stove-doors provided 'With or'linely"perforated metal, the second claIm of the same patent having the so aE!tocreate a draught, gauze pxte!lding up 8!l"d, down the upper ,part,andll-Iso up and down the!owerpart, of the door, for the purpose described, valid. 8. SAME__ ' . The seC'Onil'claim of letters patent No. 246,606. granted to Giles E. Filley, :September, g; 1881, for an improY,emerlt in doors of stove-ovens, having a register andga1Jze, the arranged and extended so as to create a drllught of ,ail' through the stOve, IS valid; but the :tl.rst claim of the same plitedt; proViding for 8, register Irtranged and ext,ended through the main portion of thedo'or. is void for want of invimtion. It cannot be construed,to embrace tAe register in COIll,binatioll with the gauze. ¥ it would then be a mere of the second claim;' and it being admitted that, prior to the invention; a small register had been used in oven-doors, there could be no illventidnJn siIllply placing a large register in place of smaller one, '
INFRl1q'GEME:NT , ,
IMPRo-JEn' COOKING-STOVES-
ana
FILLEY" V. LITTLEFIELD STOVE CO.
430
3.
SAME-!;NFRINGED BY tTT'rt.EFIELD PATENT
No. 313.874. " The dbject bf the first of the above patents being to introduce thfl outer a.ir,into the oven by means of a.wire-gauze inserted in the door. so that the air will enter the lower portion and pass out through the upper portion of the perforatIOns, and in the second patent the object being to regulate the passage of the air through the gauze by means of a large register inserted in the oven-door, an oven-door constructedlursuant to the specification of patent No. 313.874; granted to D. C. Littlefiel ,March 17, 1885, is an infringe· ment,although defendant, in manufacturing under the last-named 'patent, introduced an auxiliary fiue to produce a stimulated draught, and used a gauze with a finer mesh t)lat employed by complainant.
Paul 13akeweU, for complainant. D. G. Littlefield, for defendants.
In
CoXE, J. This an equity action for infringement founded upon letWrspatent No. 236,425, granted to January 11, fOJ;an iplprovement in cooking-stoves, and upon letters patent No. 246,606, granted to complainant, September 6, 1881, for an improvement in doors for stove-ovens. Prior to the invention described in the patent of January 11, 1881, the aim of manufacturers of cooking-stoves was to exclude the outer air from the oven by means of doors with air-tight joints. The complainant discovered the error of this theory, and his invention isbased upon tbeproposition that the.cirQulation of the outer air through the oven is highly beneficial in preventing shrinkage and drying, and in improying the flavor of the articles being cooked. AccordiJ]glyhl'l, provides the oven-doors of his stoves and ranges with wiregauze, or finely-perforated metal, so that the air. .enters through the lower portion, and passes out through the upper'portiop, thus causing a circulation of air through :t»e oven. ·.The claims of this patent are both involved, f,tnq are.as follows: "(1) A cooking-stove or range oven having one or both of Its doors provided with wire-gauze, or finely-perforated metal, A, as and for the purpose described. . ".(2) A COOking-stove or range oven baving one or both of its doors provided'with Wire-gauze, or finely-perforated metal, such gauze or metal extending up and down the upper part, and also up and down the lower part, of the door, for the purposes described." The patent of September 6th is for an improvement upon the mechanism described in the prior patent. The invention consists in providinga gauze oven-door with a register as large as'the door will permit, and Boarranged that the outer air will pass in at the lower openings, and out at the upper openings. In place of a rotating register, a slide register may be used. The two claims alone are involved. They are: "(1) A. co6king"stove or range oven door or doors having a register arranged, and extended through the main portion of, the door, as and for the purpose set forth. . "(2) A CQQking-stove or range oven door or dOOrS having register, B, and gauze,C; said register being arranged and extended as and the purpoSe set forth." .
486
FEDERAJ',. REPORTER.
The defenses are lack of and non-infringement. It is thought· that the claims 'of the patent of January 11th and the 8econ4 claim of the of 6th are valid. There is nothing in the Roberts or which anticipates or materially limits the scope ofthese claims. The complainant has made an invention which is clearly meritorious. The ·defense of lack of novelty is not established. The first claim of the September patent must, however, be held void for want of invention if the claim covers only the large register therein described. It is contended thatit should be construed to cover the register in combination with the gauze, but this contention leaves out of sight the fact that it will then be simply a repetition of the second claim, and thus the patent will have two claims for the same combination. It was dearly the intention of the patentee to securethe extended register by the firstclaim, and the combination bythe second. In bothIlatents he states that, prior to his invention, a :Small register had been iIismed in the center, of oven-doors. In view of this admission, there can be no invention in placing a large register had previously been a small one. Slaw80n v. Grand St. R. 00., 107 U. S. 649, 2 Sup. Ct. Rep. 663; Phil7Jips v. Page, 24 How. 164. . . d, Do the defendants infringe? IiI 1884 the complainant obtained a de<lree upon the patents in suit ngainst the defendant Littlefield in the Eastern district of Missouri. The 'validity of the patents was not assailed, and the case turned: solely 'upon the question of infringement. Filley v.Littlefield, 25 Fed. Rep.'282. The which was then held to infringe was the same as the device now before the court, except that the defendants insist that the wire-gauze was bent out so that it came ill contact with tpe perforated metill-guard, thus destroying the air-circulating chamber between the two.' 'A motion for a preliminary injunction was made in the case at bar, and was gtanted by the circuit judge in November, 1885.. Theqtlestionbfinfringement has therefore been answered twice in favor of the· cOlllplainant. The defendants' doors are constructed according to the principle described in ktters patent 4, granted to D. C. Littlefield, March 17, 1885. It should be remembered that the purpol;!e of the complainant in the first patent is to introduce the outer air into the oven ofa cooking-stove by means of wire-gauze. or iis equivalent, inserted in the cloor, so that the air will enter through the lower portion, and pass out through the upper portion, ofthe perforations; and in the second patent his object was to regulate the passage of the air through the gauze by means of a large register inserted in the oven-door. With these facts in mind, it win be seen that the defendants have adopted all the valuable features of the invention. The same result is produced insubstantially the same way. The advantages attributed to the use of the defendants' cloor are identical with those described in the specifications of the patIt is true that the defendants have addedwbatis called an iliary flue, which produces a stimulated draught, but the addition of this element does not give them the right to use the invention. As well might it be urged that a party who has constructed a flume which pro-
CELLULOID MANUF'GCO. V. AMERICAN ZYLONITE CO.
437
duces an increased has thuB acquired the right to use a patented The law upon this question is well settled. Blake v. Robertson, 94 U. S. 728, 733; Cochrarne v. Deener, Id. 780, 786. It is said, also, that theair,before it is introduced into the oven through the gauze, .is heated by its passage through the perforations of the door, and by its contact with the. heated air in the lower chamber of the door, between the outer perforated plate and the inner-gauze screen. But this is vigorously combated by the complainant; and, even if it were true that the outer air is slightly heated in passing through the inch or so of space between the metal and the gauze, it would not negative infringement. The defendants introduce the outer air into their oven through a gauzc:.panel, but before it reaches .the gauze it passes through perforations in a metal-guard placed about an inch from the gaute. 'fheaddition of thi1:l plate does not enable the defendants to escape the charge of infringePlent. Morey v. Lockwpod, 8 Wall. 230; Eliz,. abeth,v. P(lvIMent 97 U.S. 126,137. It is equally unimportant that, the gauze .used by the ,defendants has .a fililer mesh than that used by the'complainant. The, complainant does not confine himself to the use.of gauze or metal containing perforations of/tny'tixed size. It follows that, as to the patent of January 11th, the complainant is entitled to a decree for an injunctio!l and an account, and a similar decree as to thl;'. secon,d claiQl of the patent of Se,ptewber 6th, upon filing a disclaimer as to the first claim. Walk. Patents, § 208. The question of costs can be determined upon'the settlement of the decree.
CELLtJl.OI.D MANUF'G
Co. and others v. others.
AMERICAN ZYLONITE
Co. and
(OVrcuit OWJri, 8. D. New York. March 80, 1887.) 1. PATENTS FOR INvENTIONS-CELLULOID COLLAIl8 ANDCUFFS-lNFRINGEMENT.
Letters patent No. 200,9,37; of March O. 1878, to R. H. Sanborn, C. O. Kanouse,. ,and A. A. Sanborn, for an improved fabric for collars and cuffs, or other similar articles. having outer sheets or layers of celluloid, and an interlining of textile orftbrolls material, substantially as and for the purposes specified. A fabric consisting of two sheets of Cloth. with a paper interlining. was made by one of the defendants, and delivered to the defendant the zy10nite company. who placed a thin sheet of zy10nite upon one side, and returned it to him, and he turned thezylonite face back on-itself, so as to make a surface of zylonite upon both sides. The zylonite company claims that tb,is is!;lo infringement,because the fabric, as delivered by the company, is not a patented fabric, for the reasontha,ll it contains the celluloid on one side only, and the collar maij:er simply t1,lrns over one edge, and thereby makes a collar, ·and there can be no infringement in. simply turning the hem of an unpatented material. Held, the patent was not for a new collar, but for a new material from which to make' a collar, and consisted of double and outer sheets of celluloid and an interlining of textile or fibrous JiIlateria1; and, while a fabric which contains celluloid upon one side only is not the patented article, yet, if,byan intended change of form, it becomeS a fabric for collars and"cuffs llaviuga double outer sheet of celluloid interliued with textile material. it is