ACME HAY HARVESTING CO. V. MARTIN.
249
me important to closely analyze the different labels or bottles used by defendants, because I am satisfied that the labels, wrappers, and bottles of all the defendants bear so close an imitationto those of complainant that the public are deceived in conseqUflnCe, and that, therefore, the injunction prayed for shorild be granted. I do not place this decision on the ground of infringement of the registered trade-;,lark in the word "Moxie," though that might be said of the two cases in which the defendants use the word "Noxiej" nor do I decide that the complainant is entitled to be protected in the. exclusive to the words "Nerve Food" as applied to a beverage, but the conclusion I have reached is put upon the ground that these defendants, for the purpose of deceiving the pUblic, have imitated to such a degree the labels, bottles, and wrappers of the complainant, that they should be enjoined. The fact that the defendants Beach and Clarridge make the labels and wrappers, and sell them to others for a wrongful purpose, does not relieve them from liability. De Kuyper v. Wittrman, 23 Fed. Rep. 871. In. Nerve Food Co. v. Bawmbcwh, 32 Fed. Rep. 205, (Nov. 1, 1887,) in the circuit court for the Eastern district of Texas, Judge SABIN, in an exhaustive opinion, held 'that the complainant was entitled to It preliminary injunction. In that case the labels, etc., were those made by the defendants Beach and Clarridge, in case No. 2,394. A preliminary injunction is granted in each of the above cases.
AClttE
HAY HARVESTING
CO.
'11. MARTIN
et ale
(Oilrcuit Oourt, N. D.lllinoi,. January 9, 188B.) PATENTB FOR INVENTIONS-NoVELTy-HAy,RAKES.
On abill to restrain the infringement of a patent for the use of poles to guide horse hay-rakes, the proof showed that poles had long been used for that purpose. Held, that the patent was invalid for want of novelty.
In Equity. Bill for injunction. Bill by plaintiff, the Acme Hay Harvesting Co., to restrain the infringement of a patent by the defendants. Peirce &; Fisher, for complainant. West &; Bond, for defendants· . BLODGETT, J. The bill in this case charges infringement by defendant of letters patent, No. 259,550, granted to MartinH. Kenaga, June 13, 1882, for "an improvement in horse hay-rakes." and asks for an injunction, and an accounting for damages. The defendants do not deny the complainant's title, and only contend-First, that the complainant's patent is invalid for want of novelty in the device therein shown; and, 8eCond, that the defendants do not infringe. The invention covered by this pa.tent relates "to horse hay-rakes, or sweeps, of the class employed
250
FEDERAL REFORTER.
inoonnection with stackers, and particularly to those rakes of this class which are drawn by horses hitched one at each end." It appears from', the proof in this case, and thispll.tentee recognizes it in his that horse hay-rakes, or s.weeps, mounted upon wheels or runners, with such length of axle as to carry a rake-head of from 10 to 12 feet in length, furnished with teeth for gathering the hay, so as to collect the hay upon a wide swath,by means of a horse attached to each end of such sweep, or hay-gatherer, were old when this inventqr entered the field. It seems from the proof that this class of hay-gatherers are used principally either in connection with a "stacker" or for the purpose of . hauling the hay to theplaooWhere it was to be placed upon the stack bymeana of pitchforks inthehllonds of workmen; and these old devices, as well a,8the device covered by this patent" are specially adapted for use; in large fields, or upon the prairie where it is expected to stack the hay in tile immediate vicinity of the meadow from which it is mown,. , The invention covered by this patent consisted in attaching to each end of the rake..;head a p()le, .or tot;lgue,whereby the movement of the rake could be to some extent guided; and by means of which the rake could, be moved backward so as to unload the gllithel'ed hay fro!ll the rake by drawing. the ,teeth from under the pile. lnthe old the horses to the end.of .the rake,usu.aliy by a whiffletree attached were to the extremityofthe axle extending beyond the outerend of the b'!1b of the wheel, so as to give opportunity for connecting the axle with the wiffletree, thus enabling the horses to travel clear of the rake teeth. The horses were ridden by boys,and the rake was guided by the movement of the hOl'ses, and when a load had been accumulated upon the rake teeth the horses werewheeledabO},lt, one to the the rake was right and the other to the left, so as to move in the opposite direction from that in which the hay had been gathered.;:.and the rake. thereby drawn backward so as to withdraw the teeth from the pile of hay that rested upon them. Kenaga attached to each end of his rake-llea.<,la bar to ivhich the wifife'tree ,was attacbed, and also a tongue or forward in order to fasten the.breast-strap'fr()m the horses'hamesor collar to it for the purpose of aiding the horses in guiding the movements of the rake; and also to furnish means by'which the horses couW back the rake, when it 'was to dO so, either for the purpose of unloading or for any other reason; and it is' the addition of this pole to the old form of sweep, or hay-gatherer, that is covered by this patent. The patent also shows a seat placed upon the rake-head where the ,driver can ride and guide the horses; but the claim of the patent only covers the atta6hinerit of these two guiding poles to the rake-head and does hot cover either the seat or wiffletree bar·. The proofsh()ws that it was old to use poles, or thilla, f{J'fthepurpose of guidinghorse-rakes,a.s well as nearly every other class of vehicles mounted upon wheels to ,be drawn or propelled by animal power; and. it seems quite clear that if it was found desirable in use to have some device attached to these rakes by which they could be backed:from under theae-. cumulated load, there was no invention in attaching a pole or tongue'to
ACME H4X, RAR.VJ!<,'J'tING CO" 'V. MURTIN.
251
,a rake-bead for that purpos!'l. The tongue of the horae-rake,for the purpq;;e<;>fguiding Qr backing the machine, was an old and well-known dets that in the earlier rakes of this dascription, vice. The ,sqchas that sbQWU in, the Hudson patent of September, 1869, and of patent was an improvement, it was not deemed desirable,to apply any device for backing, as those rakes were organized and handled JP,ainly by means of a boy mounted upon each horse, and the was guided by th.e movements of the respective horses; and the reverse movement now accomplished by means of this pole WtlS,as iLwfl,s thought, sufficiently provided for by ,simply swinging th9 ,horses as to reverse their dIrection oftravel, and thereby draw the rake!!, back instead of pushing them back by means of a tongue or ,pole. !fa person using such a rake conceived the idea that it would be more cOflyenient ,to handle the rake to some extent by means of a ;ing-pole,or,backing-pole, like that shown by this patent, it seems to me ,that with tl},e ,common knowledge which exists among all those who have been in the habit of using horse-rakes that they had been backed, and guide<l by means of a pole, there was no invention in applying a pole to 1(hililkinQ. for that purpose. It appears quite, clearly, I think, from the proof that hay-gatherers with poles have substantially superseded the older form; and I should say from the evidence that they are shown to be a manifest improvement upon the older form; but all improvement is not invention. With the well-known advantages ill the ordinary horse-rakes of guiding and backing them by means of a pole, there could, it seems to me, be no invention in merely adapting from the older form of rakes this well-known element; and all that can be said is that the earlier formS ,of this sweep, or hay-gatherer, were incomplete until the pole was attached. The Hudson rake of 1869 contained in its and specifications the sn'ggestion of a pole, but no provision was made for attaching the pole to thehatiie, or ,collar of the horse, so as to enable him to use it for the purposes of backing, its function or office in the Hudson organization seeming to be merely to enable the rider of the horses to of these "levers" ae lift the teeth of the rake from obstructions by they are called; but from the evidenQe as to the manner in which the old rakes were used, I think it must be manifest that they aided to same extent in the gUiding of the horses, becapseas the horses were hitched outside of these levers as they projected forward parallel, or nearly so, with the rake teeth, when it was desired to swing the machine around, or turn it either completely about or half-round, or considerably vary its course, the slacking qr stopping of one horse, and swinging the other in the diin whjch it was desired to turn, of, coUrse produced the desired movement of the machine, and the horse describing the circlfl, or the arc oia circle, in which the machine traveled would be kept from stepping upon the, rake teeth, and il) a certain sense kept ttl his work by means of these level'S extending along his side; while the horse standing nearly still, or slad,eing his movement, would be also guided by the movement ,of the lever' along his side so as to correspond with the movement of the other end of the rake. ,While I am clear that it did not require
252
, FEDERAL REPOBTEk.
invention to take the pole from the wagon, or mowing-machine, or horserake, or cultivator, in use before the device covered in this patent was shown, there was still less invention, as it seems to me, required to convert the suggestion of the of the pole in the Hudson rake into the pole shown in the complainant's patent, than would be necessary had there been no Hudson rake in the prior art. In other words, it seems to me that without the Hudson rake and its levers, intended to' specially aid in lifting its teeths over obstructions, there would have heen no invention in applying the pole to the rake if a pole was found desirable for any purpose;' yet, with the Hudson rake in the field, there was, certainly no invention in applying a breast-strap from the collar of the horse to the forward end of it, to use it for the purpose of guiding the machine, or backing it as is done in the complainant's patent. Hudson, it seems to me, could not have sustained a claim for a guiding-pole to his rake as a llew invention, or even as a combination, because guiding-poles were old; and, if he could not have done so, certainly Kenaga cannot be allowed to do so. lt seems to me, therefore, that the defense of want of novelty is fully established by the proof in this' case, and that this bill should be dismissed because of the invalidity of the patent.
KmK v. Du (lourl,
BOIS.
w: JJ. Pennsylvania.
December 27, 1887.) ".'
). PATENTS FOR,INVENTION,S-IrTILITY..,..PRESUMPTION.
The presumption of fr()m the patent itself is sufficient In favor of the patentee untilrebutted'by proof. '
2. SAME-;-A.NTIOIPATION-MoVABLE DAMS.
8.
The devic.e called a new and Ilselul improvement in movable dams. covered Kirk, was by lettElrspatent No. 268,411, issued December 0, 1882, to not iIi use by'John Du Bois before the date of the patentee's invention.
SAME--INFRINGEMENT-MovABLE DAMS.
Claim 6 of suchpatel).t, described as a bear-trap dam. having a relieving or open sluice extending from under the so as to relieve them from un· necessary pressure, is infringed by the device shown to have been manufactured by defendant, John Du Bois.
In Equity. en bill for· injunction. Plaintiff, Arthur Kirk, filed his bill for an injunction and account against defendant, John E.Du for the infringelnent of a patent. McKENNAN,J. The complainant is the patentee to whom was' issued letters patent No. 268,411, dated December 5,1882, for a new and UReful improvement in movable dams. The patent covers ten claims, only one of which (the sixth) is alleged to have been infringed, and is therefore the subject of this controversy. That claim is in the following words: "(6) A bear-trap damj having a relieving or open sluice extll:::.d-