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
438
.FEDERAL
ItEPOnTEB.
an infringement; especially asit:appears that the patentee and the infringer the in view,-to. produce a collar which could be kept clean wIthout the aid of a laundress. 2. SAME"":-CONSP!RACY TO
The.'.ZYI.onite company haVing made the compound for the other defendant, .. of the method in w11ich it was to be used in making must be &s ,ngag\!d with the other defendant in a common purpC!se to ,,'void the pe.tent, and fsllable as joint tort·feasorwfth hfm for the infrmgement.
LIAnILITY.
InEquity. , . Frederick H. Betta; for plaintiffs. Wetmore «Jenner, for the Standard Collar Co. Horace M.Ruggle8, for the AmericanZylonite Co. SHIPMAN, J. This is a motion for an injunction pendente lite against the· alleged .jnfringement by the defendants of letters patent No. 200,937, dated March 5, 1878, to R. H. Sanborn,· C. O. Kanouse, and A. A. Sanllorn, for an improved fabric for collars and cuffs. .The validity of the patent was sustained in this citcuit,·in the case of· Celluloid Manuf'g 00. v. Ohrolithiim CJollar & Ouff 00. .The nature of the invention is fully descrilled in the opinion of the court, 23 Fed. Rep. 397. ... The single claim of the patent is as follows: "A:fAbric for collars and cuffs. or(){iller simUararticles. having outer sheets of· celluloid. and an interlining of textile or fibrous material, subor stantially as ,and for the purpose speciJled," The infringing fabric is made as follows: A fabric, consisting of two sheets of cloth or muslin, with a paper interlining, is made by the Taylor & Tapley Manufacturing Company, named in the bill as a defendant, but not served with process. The American Zylonite Company places a of zylonite upon on,.e, side of this fabric, and returns the compound sheet to the Taylor & Tapl,eyCompany. After the cloth edge of this sheet has been shaven off, the zylonite face is turned back upon itself, so that there is a surfaceo! zylonite upon both sides at all the edges of the collar except at the neck-band. These edges are fastened and. made secure with paste. The' parts of the collar which demand strength, neatness, and a finish. aIld which are most liable to become soiled, have a double sheet of zylOllite, which incloses an interlining of textile material. The body of the back of the collaI'! has no zylonite surface. The collar cannot be immera'edin water; it can be cleaned by the application of a wet sponge and water; and, it is said, can be used for months. The collars are sold by the, third the Standard Collar Compuny. TJ1e important question in the case is that of infringement. It is insisted· by the plaintiffs that the difference between the facts in this case and those in the C'k'f'olithion Case is ODe of details., anll not of substance. The counseland the expert for the defendants. insist with great confidence, stiq with a conviction of validity and completeness. of their defense, that there is. no infringement. It is s;l.id that the fabrh:, as it leaves. the zylonite·companyand comes to the collar maker, is not the patented
CELLULOID MANUF'G CO. 'V. AMERICAM ZYWNlTE CO.
439
fabric, which is true, because it contains the celluloid layer upon one side only; that the collar maker simply turns overone edge, and thereby makes a.collar in the customary method; that there can be no infringeturning the hem of an unpatented material; that making a hem is avery pld device of the and no one can infringe a patent ahem; an.d that the Taylor & Tapley Company do notlllake a fabric, but make collars from an unpatented fabric. There are different and ingenious and attractive. methods of stating the same defense, which is that the fabric, as it comes into the hands of the collar manufacturer, is unpatented, and that its unpatented character is llot changed by the subsequent and well-known method of its manipulation into the shape of a collar. The defendants' argument hinge!'l,upon the last clause; the important question being whether the unpatented fabric has peen changed into a patented one, and not whether a change has been effected by a familiar method. The patent was not for anew collar, but for a. new material from which collar, and consisted, in brief, of double and outer sheets of celruloid, and an interlining of textile or fibrous material. A fabric which contains celluloid upon one side only is not the patented article; but if, by an intended change of form, it becomes a fabric having So double ami outer sheet of celluloid with an interlining of textile material, why pas it not become the patented article? If it has become the pat.ented fabric for collars, it matters not whether the change was effected before or after it came into the hands of the collar maker, or whether the second and oute.r sheet can be called a hem. Is, then, the defendants' fabric made of double and outer sheets of celis not IDade of two separate sheets which inclose an interlinluloid? ing,ll>nd fb.en are prp.ssedtogether, but it is made by doubling over a singlesheetofcelluloid, and then inclosing the interlining, and then pasting ··the ·oogestogether, 'whereby· a compound sheet This difference cannot be a vital difference, un'less the terms of the claim require that there shall' be originally more than one sheet. The claim defines the fabric to' be ohevvhich has outer sheets or layers of celluloid. By the words "sheets or layers," I do not understand that the patentees limited themselves to sheets originally detached; but, if the compound sheet had outetlayers of celluloid, it was sufficient. The object of the invention was to make, by. the means of celluloid, a. fabric for a permanent collar which could easily be kept clean, without . the intervention ,of the laundress. The patentees accomplished this obje<;t by <louble amI outer sheets of celluloid, and. !in interlining of textile material. . The Stllndard Collar Company receives from the manufacturers and' sells collars which contain so much ofthe new fabric as is needed to inalre a collar. So much as is unnecessarY.has not been used. It ulles ®d ;llells a double and outer sheet of celluloid, and an interlining of te:;tilElmaterial wherever the strength and the beauty of the coUa.rs most demand such use, and it omits a double sheet when the omission add!3, to the· oonvenience of the wearer. Ithas a double sheet where such a sheet is indispensllo1?le'l a:Q:d thereby has taken the kernel Qf the inven-
FEDERAL REPORTER.
Hon to its own use, has become, to the extent to which it employs the improvement, an, infringer.' , , The defendants also make the point that the character or the kind of sheets of celluloid is not sufficiently disclOsed by the patent. As there was hut one Jrindofcelluloid sl1eets which could, at the date of the patent, be used for the purpose,. and 'the mechanic had no need of definite instruction, because the "cut" sheetS were obviously the only ones which were, at the time, available, the objection seems to be theoretical rather than real. ' It is apparent that the American Zylonite Company made the comp0tlPd sheet for the Taylor & Tapley' Company, with knowledge of the method in which it was to be used' by that company in the manufacture of,collars. The affidavit of Mr. the president of the company, does Ilot deny this. It engaged 'Yith the other defendants in a common purpose to avoid the patent,' iitiq', in connection with them, it actually, by theirconcertedaction, ihftingedthe patent. . ". is granted as against the defendants who have been served . The 1Vith process.
,TEMpLE
PulIPCO. '11.
Goss
PUMP
&' RUBBER-BuCJrnT ot4era.
MANuF'G
(Oh-cuit Oourt, N. D.1UiriiM. March 28, 1887.) 1. PATENTS FOB INVENTIONS-NoVEl!l'Y-BUCXETS FOB CHAIN-PuMP· . Patent No. 178.735, of June 18, 1$7.6. to John A. Churchill, for an improvement in pump.bu.ckets; compared'with llatents granted in 1852 to one Polley, and in 1875 to J. D. Shoots, and one ili 1874 to M. D. Sennett, and other prior patents granted to Mooney, Van Duser, and ,Johnston, held not void for want of novelty. SAME-INFRINGEMENT. . I' ..
"
2.
Letters patent No. 178,785, to John A. Churchill"for an improvement in pump-buckets, held infringed by the bucket manufactured by the Goss Pump & Rubber-bucket Manufacturing CO:Qlpany.
In Equity. P;ierce &: Fisher, for complainant. West &: Bond and A. N. Waterman,for defendants. ,BLODGETT, J.' . The bill in this case seeks an inju#ction and accounting by reason .of the allegedirifringement of patent No. 178,735, granted J\me 13, 1876, to John A. for an "improvement in pumpThe patent covers an'expansible for chain-pumps, '90Qsisting of a screw-threaded bolt or link, with aloop at each end, wnereby the link is united. with other links to form a pump-chain. On this threaded link is placed a concavo-convex or bell-shaped rubber but,ton, the outer periphery of which is intended to be of about the size of ,the inner bore of the pump-tube, This rubber button is fastened to one end of the threaded link, just below the eye or loop, with the conca'Ve .