CHICOPEE FOJ.DING BOX CO. V. ROGERS.
695
have done this; she may knowingly have caused it to be done, and yet be entirely ignorant of the obscene character of the writings, etc., so deposited, and consequently not guilty of the offense described in the statute. "Knowingly," in the indictment, must be limited to the act of depositing, for mailing and delivery, the obscene matter in the mail, and cannot be extended to include a guilty knowledge of the writings, papers, etc. Suppose the indictment charged that the defendant knowingly deposited, and caused to be deposited, in the mail, for mailing and delivery, a certain dangerous and explosive substance known as dynamite or gunpowder; would this be a sufficient allegation that she knew thematerial to be of a dangerous and explosive character? The court thinks not. The knowledge alleged in the indictment would be confined to the act of mailing. The adjectives" dangerous and explosive" would intervenebetween.the fact of which she is alleged to have knowledge, and separate it from the subject of which she must be chargeq witll having guilty knowledge, and are descriptive of that subject. As stated in the case cited from 12 Cush. BUpra, the guilty knowledge charged wa.'l confined to the act of selling, and did not extend to the character 9f the meat sold. The case chiefly relied:upon by counsel for tho government, to sustain this indictment, is U. S. v. Bennett, 12 Myer,Fed. Dec. 70p. An examinationofthat case will show that the point there raised against the grl;\nt..J indictment was somewhat different from the one ra,ised here. ing them to be the I can.not think the CaSe oj binding authority than the cases w'hich I have cited. The court is of the opinion that the indictment does not s.at forth t.he offense with clearness llnd all necessary certainty , so as to apprise the accused of tb,e, crhne with which she stands charged, and every ingredient of which the offense is composed is not accurately and clearly alleged. It is defective it.does not allege that the defendant knewt4at the writings, papers, etc., whioh she is charged with having deposited in the mail, for .mailing and delivery, were of an obscene, lewd, character. This. conclusion is clearly sustained by principle and precedent; and the motion in arrest of judgment must be sustained. . Judgment stayed, and .defendant discharged.
FO;LDINGBox Co. 11. ROGERS.
COircuit Oo'Urt, 8.D. New York. April 15, 1887.} PATENTS FOBINvENTIONs-CLAIM FOB PROCESS.
The language of one olthe claims of a patent was as follows: "In the art of scoring Qr creasing paper or 'other kindred substances, preparatory to bending the same for use in the manufacture of paper boxes and similar articles, the step herein set forth, which consists in making the crealle or score bymeans of successive blows or pressures, theflrst of which is lighter than the f()l1owing Reid; that this was a claim for a-general llrocess, and w.as !lot ground acwon for ; .
696
FEDERAL BEPORTER.
paratory to bending the same for use in the manufacture of paper boxes and similar articles; the step herein set forth, which consists in making the crease or score by means of successive blows or p1'essurcs, the tir8t of which is lighter than the following one."
This was an action for infringement ofletters patent, No. 298,425, to John E. Stannard, for a machine for creasing 'Paper. The first claim in the patent was: "In the art of scoring or creasing paper or other kindred substances, pre-
Walter D Edmonds, for complainant. R. B. Mdfaster, for defendant.
W ALLACEj J. The first claim of the patent in suit (No. 298,425, granted May 13, 1884, to John E. Stannard for machine for creasing paper) is a bald attempt to patent the function of the machine described in the specification, or the result of a mechanical operation which the operator must learn how to perform for himself without aid from the specification.' No mechanism for creasing paper "by means of successive blows or pressures" is suggested in the specification, except the combination of devices covered by the third claim of the patent, and no instruction is given how to takE! "the step" which is the subject of the first claim, unless by the use of those devices. The third claim fully and accurately embodies the real invention of the patentee; The complainant's case must stand or fall upon the infringement of that claim by the defendant. Novelty is imparted to that claim by the peculiar grooves or channels in the cam disks, all the other elements being old, separately, and in the combination claimed. The new result is produced by ma,king the groove of the cam" with two inward trends towards the shaft 9-one at 21, and the other at 23. the latter extending inward nearer the shaft than the other-and with an outward swell or trend between them, as clearly shown in Fig. 2." The peculiar shape of the groove is the gist of Stannard's invention. The proofs show that the defendant has neverinfringed this claim. He had altered the ca'in grooves in the Elmer machines to plain eccentrics, in February, 1884, before the complainant's patent was granted. He did this for the express purpose of avoiding litigation, after the interference had been declared in the patent-office between the Elmer patent and the application of Stannard. His conduct towards the complainant throughout shows good faith. The complainant assumed that the deff'ndant was using the original Elmer machines constructed according to Elmer's patent; he acquired Stannard's patent as 'soon as it was granted, and brought this ,suit the day after against the defendant. After the suit was brought, being met with proofs that the Elmer machines had been altered before the issue of the Stannard patent, so that they did not employ the real invention of Stunnard, the complainant has fallen back , upon the worthless first claim. of the patent. The bill as to infringement is disrIDllSed with costs. The bill prays for the cancellation of the Elmer patent owned by the defendant, as an interfering patent. The adjudication of the patent-
ASPINWALL M:ANUF'G
CO. V.
GILL.
697
office that Stannard was the prior inventor in the interference proceeding to which the defendant was a party is sufficient prima facie to entitle defendant complainant to this relief. But it does not appear that has ever asserted any rights under the Elmer patent, and, when the interference was declared, he permitted the proceeding to go by default. Under these circumstances, and as no issue has been made by the defendant by pleading or proof upon this branch of the case, costs should not be decreed against him.
ASPINWALL MANUF'G Co. 1.
V.
GILL and another.
(Oircuit Oourt, D. Ne'IJJ Jersey. July 18, 1887.) PATENTS FOR INvENTIONS-LICENSE-EXTENT OF.
A defendant in an action for the infringement of a patent pleaded a license to make 100 of the patented machines. The evidence showed that he had made 125. Held, that he was not protected by the license as to the excess over 100, although the patentee had delayed the defendant, and prevented his making the 100 to his contract, and caused. him aamage thereby. Where a patentee assigned his patent for $12,000, "together with all the im· provements I may bereafter make, without further cost," the assiA'nee is en· titled to make and sell the original inventions as improved after his assign· ment. · ; An assignee of a patent, whose assignment is properly recorded, is protectell as to all of his rights thereunder,as against a subsequent assignee of the patentee. A part owner of a patent cannot maintain an action for infringement against anotber part owner.
So
SAME-AsSIGNMENT-FuTURE IMPROVEMENTS.
8.
SAME-ASSIGNMENT-RIGHTS OF ASSIGNEE.
4. 5.
SAME-INFRINGEMENT-ACTION BY PART OWNER.
SAME-IMPROVEMENT-WHAT CONSTITUTES.
The patent No. 276.994, issued to Lewis A. Aspinwall, May 8,1883, of a potato planter, was merely an improvement of patent No. 235,401, issued to the same inventor, December 14, 1880, and was not for a separate and different macbine, as the difference in the two machines consisted simply in making the barbs which speared the potatoes, and carried them to the dropping place, straight, instead of hooked, and thus facilitating the action of the device.
In Equity. On planter patents. Francia Forbes, for complainant. F. C. Lowtlwrp, Jr., for defendants. BRADI.EY, Justice. The bill in this case was filed to restrain the infringement of two certain patents, and to recover profits and damages for the infringement thereof. The patents sued on were granted to Lewis Augustus Aspinwall for improvements in potato planters,-one dated December 14, 1880, and numbered 235,401, but subject to the limitation prescribed by section 4887, Rev. St. U. S., by reason of a British patent for the same invention, dated October 27, 1874, and July 30, 1878; the other patent sued on was dated May 8, 1883, and ,numbered 276,994. By separate deeds of assignment bearing date September 19,
