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its groove/il and cells? And had such a crown or lid boon made and used before? In answer to these. questions the patent itself is prima facie evidence in favor of the patentee, or of the complainants who represent him; and unless there is clearly no invention in what is claimed to be such, or preponderating evidence of anticipation, the patent should be sustained. I cannot say that there was clearly no invention in the thing patented. It is certainly a very useful contrivance, and has greatly facilitated the making of chains. It could not, therefore, have been a very obvious improvement, or it would have been adopted long ago. As to alleged anticipation, there is, indeed, evidence that one Blakey made a perforated and grooved tile for the cover of a like fumace in 1875, the year before Helm's alleged invention. But the intermittent character of his operations, extending over a period of throo years, from 1875 to 1878, in which he only used a tile part of the time, invests the date of his actual use with some uncertainty, and the evidence against such use prior to the fall of 1876 is of such a character that there cannot be said to be a clear prep'onderance of so clear as to justify a decision against theva.Iidity of the patent. This is the conclusion to which I have come after a careful reading of the whole testimony, which need not be referred to in detail. My judgment is that there must be a decree for the complainants, declaring that the grooves are a material part of the first claim of the patent, and that, thus construed, the patent is valid as to such claim, and that the defendants have infringed the same in using the detachable crown with grooves and cells, and that there should be a reference to ascJrtain the profits and damages arising from said infringement.
HURD 71. SNOW.
(Oireuit Court, D. Conneetictet. June 19, 1888.) PATENTS lPOB INvENTIONs-PATENTA:BILITy-INVENTION- PACKING FOR TRANSPORTATION.
ICE-CREAK
Letters patent No. 113.239, dated April 4. 1871 issued to Ignazio Allegretti, for a new article of manufacture and commerce, consisting of blocks of ice· cream or water-ice put up, for purposes of convenient transportation, in metallic moulds, which were first to be subjected to the snperfreezing process, to make the cream or water-ice harder. and then placed in loosely-fitting reo frigerator paper boxes. the superfrebzing process. both in moulds and in mass, not being new, is merely for putting a known article into convenient receptacles, and void for want of invention.
In Equity. Bill.by William H. Hurd against CharlEls P. Snow for infringement ofletters patent, . JQhn J. Jennings, for plaintiff. Oharks T. Polhamus. for defendant.
FEDERAL REPORTER.
;, SHIPMAN; 'J. This is a bill in equity, based UP'OIl the infringement ofletters patent No. 113,239,' dated 'April 4, 1871, to Ignazio Allegretti, for an improved ice-cream or water-ice; the improvement consisting in the'method by which it is put up or packed and prepared for tion and convenient use after a lapse of time. The object of his inVelltion was "to pack and serve ice-cream or water-ices in boxes of convenient size, t() be'catried in the hand," and so "put up" or prepared in these boxes that they, with their contents, can be kept in stock, or that the eontents the boxes are sold, endure transportation, and be kept firm and solid for a considerable period of time. In the specification of the patent the invention is described as follows: :'''When prire water is frozen by the application thereto of either artificial or naitural cold, the icepl"Oduced therefrom is susceptible of absorbing a large amount of,t:Jaloric before returning to the fluid state, if said ice has been submitted for certain time to a degree of cold more intense than the point at which water does freeze, viz., 32 deg.; and it will be found that wben water is mixed or, combined with vegetable or animal substances in the sbape of sil'ups, starch, milk, gelatine, essential oils, etc., the proportion thereof may be 80 re:;tulated that the mixture will acquire a certain 'degree of consistence 'W:hell lowered. in temperature, and that at a certain point the lowering of the temperature will not affect any more the consistence or 'Solidit,y of the mass; although the said substance may be made to absorb a large supply of cold, :whieh is, as it \Vere, stored away in its mass." "The ice-cream or water-ice t<l be packed l;llld served up by my improved method is firs.t frozen in any known, manner. It is then put up in metallic mmilds, preferably of l'llrallelopipedic fo,m, but of any form, if desired.' The metallic mould containing the ice-cream is then placed in a dry atmosphere, kept at a 'Very low temperature, {in some cases Ikeep it as low as 30 deg. below zero ;) and there it is kept long enough for the whole mass to absorb and be red uC('d to the low temperature. Mean while, I prepare boxes of non-conductor of heat material, such as open, porous pasteboard, of the shape of. but slightly larger than, the block of ice-cream, (see letter, C, in drawing;) and I place the boxes also in a cold, dry htmosphere for a certain time. 'fhe block of ice-crf:1am is taken out of the mould, immediately wrapped in a piece of paper, anel placed in the pasteboard box; the laps of the paper, B, being folded over, and, if desired, the spoon, mentioned elsewhere, placed thereon; the lid is put on, and the cream is ready to be delivered or served up; or it may be replaced in a cold, dry-air refrigerator, and there kept for any length of time without losing any of its qualities. If the proportions of foreign substance to water have b,een wen preserved in the mixture, the consistency of the mass will be just right for being served up at any degree of cold. It may be served below 30 The cream or water-ice put up in this manner will remain firm and solid fpr a longth of time lasting from one to fOUf hours, according to the state of tlle weather."
The claim ofthe patent is as follows: "As a new article of manufacture and commerce, ice-creams or water-illes put up in the manner herein specified, and kept for sale ready for use ill rations, as it were, substantially as herein specified."
.;. The. sale6f the patented article by the defendant in New in the territory within and for which the plaintiff was the exclusive owner of the patent, and the purchase by the defendant of said articles from a person other than the plaintiff, for sale in New Haven, with knowledge' on
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the part of the seller of such intended sale in New Haven, are clearly The important question in the case is that of patentable invention, in view of the state of the art relating to the manufacture of ice-cream and similar confections. Testimony in regard to the state of the art has now, for the first time, been presented. It appears that after ice-cream has been frozen by the ordinary method, and has become a semi-hard masSi, it is taken from the freezer, and placed in metallic moulds, which are made in two parts, !>pening with a hinge. The moulds are then closed, and packed irrice in a tub; and, when the article is to be used, are opened:, and the:ice-cream is placed upon the table. By this method thefrozell article can; be· transported with safety to a distance. Superfreezing has also been practiced, which is, after the mixture has been frozen by ordinary process to the usual consistency, that is, of well-prepared mortar, the mass is placed in refrigerators or other vessels, and the freezing process continued, by means of salt and ice, until it becomes so hard and cold that it can be kept for a considerable period of time. By the process as detailed in the patent, after the ice-cream has been frozen in the usual way, it is placed in metallic moulds, and the cream in the separate moulds is then subjected to the super-freezing process. When the portion or crelui1 in the mould has become, by reason of this BubjeGtie1l to a cold temperature, hard and cold enoagh, it is placed in a100selyfitting paper box, which has also been made cold, and can be carried in this rec(3ptacle for a considerable period without melting, or can stored ina c61<;1 ,dry refrigerator with safety. ." The patented thing is a new article of manufacture! and not anew process of manufacture, because the superfreezing process, eithe;r in mould,sor i.11 mal'S, was well known. There was nothing new in taking the cream out 01 the freezer, and putting it into metallic moulds for further freezing. Neither was the method of superfreezing by the metallic moulds new Inasmuch as it is obvious that there was no invention in the means by which the cream is brought into the state in which it resists heat, llnd the invention is plainly made, by the claim, to consist .in this :well-known article "put up" in small quantities, in cold boxes, made of paper or other material which is a non-conductor of heat,the patented thing seems to be superfrozen ice-cream, contained, Jor purposes of preservation, in a small, cold box of paper or like material. I can see no inventipn in putting a frozen brick of ice-cream into a box for of transportation, and none in subdividing the" brick" into small quantities which are adap1ed to the needs of a small number of COljlSUmers, and putting each ration into a separate box. It is simply putting a welbknown article into convenient receptacles for convenient transportation and use. The use of the boxes, and the subdivision of .the cream into boxes, are the mechanical means by which the article.is convenientlyhandled and transported by the purchaser, and is made commerCially popular, merchllntable, and successful. !tis'lanewarticleofcommerce," but is not,therefore, "a new articlewhich"as such, Glue Co. v.Upton, 97 U. S. 3. :
'426
had been a novelty, or if the means by which the cream was superfrozen had been new, and the placing it in metallic moulds forthe purpose of additional freezinp; had been a new idea, the patent would have had a very different foundation; but the patentee would not claim that his cream, before it was placed in the boxes, was a new and patentable article. The patentability attaches when the separate pbrtion of cream is placed in its refrigerated box for transportation or preservation against heat, and thflre seems to be,no more invention in this method of furnishing the article to the consumers than there is in any selection of attractive and convenient forms by which an article is made salable, and is brought within the reach of the public. Glue 00. v. Upton, svpra. The lack of the element of invention is fatal to the validity of the patent. The bill is dismissed.
STREAT "'. WHITE
et al.
(C'Wcuit (Jourt, S. D. N6lJJ York. July 2, 1888.) PATENT8 1I'0R INVENTION8 TEXTILE ]IARRIe8. PATENTABILITY- INVENTION-DE8IGN PATENT 1I'0R
Letters patent No. 16,875, issued November 10,.1885, to George Streat, for a design for printing textile fabrics" consisting of stripes of solid block of color parallel to and alternating with stripes crossedapight angles bf alternate dark and light lines blended into each other by shading, "so as to Imitate the woven fabric commonly known as ·seersucker,''' are void; it appearing that though the patentee conceived the idea of the imitation, which was not new. the actual invention of the method of producing the imitation by blending together the cross-lines by shading, which was alone novel, was entirely the wOl'k of the designer and engraver in the factory of one Gilmore.
In Equity. On bill tf> restrain infringement of letters patent. Samuel R. Betts, for plaintiff. Reuben L. Roberts, for defendant. SHIPMAN, J. This is a bill in equity to restrain the defendants from the infringement of design patent No. 16,379, dated November 10, 1885, to George Streat, for n design for textile fabrics, specially to be employed in printing calicoes and similar fabrics. The leading feature of the design consisted in a stripe of a. solid block of color, or in the form ofdots or pin-points applied closely together, "parallel to and alternating with a stripe which is crossed at right anglts by alter11ate light and dark lines, 'which are blended into each other by The general color or tint of the stripes is immaterial. The claim is as follows:
"The de8ign for textile fabrics herein shown and described, the same con8isting oftbe stripes, a, a, parallel to and alternating with the stripes, b, b, the latter being crossed at right RDIlIes by alternate light and dark lines, which are blended into each other by shading, substantially as deseribep."
This was intended to he and was an imitation in printed cloths of a wellknown and popular woven fabrie, called "seersucker," which presents a
