FEDERAL REl'OBTER, vol.
37. t1.
H. TIBBE & SON MANUF'G CO.
HEINEKEN.
(Oircuit Oourt, S. D. New York. February 18, 1889.)
1.
PATENTS FOR INVENTIONs-ANTrCIPATION-CORN-COR PIPES.
Letters patent No. 205.816.'July 9, 1878. to Henry and Anton Tibbe. the claim of which is. "as a new article' of 'manufacture. a smoking pipe made'of corncob. in which tbe interstices are ,fill<ld with plastic self-hardening cemeD,t." plaster of Pari!! being indicated in the specification as a suitable plastic cement. are void for want of invention; corn-cob pipes. the bowls of which were lined with plaster of Paris. or a plastic cement prepared from meerschaum dust. having been manufactured anc:!, sold more than two years before appli<;atiop for the patent. ,, TO DENY VAr,IDITy-FoRMER LICENSEE.
, One who has had a license to sell a patented article is not thereby estopped from questioning the validity of the patent in vindication of acts done since , the,license expired.
8.
SAME-A'l'TORNEY
One who, under power of attorney froID the patentees. conveys the patent: right, and who, under another receives a proportion of the proceeds of the sale, the patent being conveyed by the assignee, through mesne conveyances to the original patentees, who convey to another, is not estopped, either by deed or in pais, from denying that the patent is valid.
FACT.
In Equity. On motion for preliminary injuncti<lD. Bill by H. Tibbe & Son, ManCompany against Willia.m L. Heineken for the infringement of a patent. Paul Bakewell and Abram J. Rose"for complainant. , LowiJJ C. Raeglmer, for defendant. T.iAcoMBE, J. This is an application for a preliminary to restraiidnfringement of letters patent No. 205,816,of July 9,1878, Henry and Anton Tibbe for "improvement in pipes." There has be-en no adjudication in support of the patent, except a decree which, being on consent, need not be regarded. Complainant insists that the "alidity of the has been suitably acquiesced in by the public, shdwingthlltits sales of articlE'S covered thereby have run up into' the millions. The weight of this argument is' greatly weakened by the' facts shown in viz. : That the defendant has been the same pipes continuously, and to a eonsiderable extent,' since 1883; that the Tibbes, through their solicitor, threatened to prosecute him for in-' fringement four years ago; that he then rotained counsel, and insisted that he had a right to manufacture and sell, communicating that Jact t(} their solicitor; and that he has ever since openly continued the manufacture and sale 'of his pipes undisturbed by complainant or his grantors. In view of'the other facts disclosed by the papers, this branch of the subject need not be discussed. We may concede that the letterfl patent and proof of exclusive enjoyment make out a pl'imafacie case, and proceed at once to deteruline whether defendant's answering affidavits are sufficient to defeat that case. The claim of the patent is: "As a new article of manufacture, a smoking pipe made of corn-cob, in which the interstices
E. TIB.E !.
MANUF'G COdldIEINEKEN.
887
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I'EDERAL :REPORTER,
vol. 37.
shared in the profit obtained from the sale to Winzer, and would thus be estopped in from questioning the character of what was sold, might be availed of by a subsequent grantee, who stood in Winzer's shoes, but no authority is cited which would secure the same benefit to the original cir<mlator of an invalid patent, except perhaps the English case, Chambers v. Crichley, 33 Beav. 374. On principle there is no more reason why the defendant should be estopped, as against the Tibbes, from question. ing the validity of their patent because he has shared in the proceeds of its sale, than there would be because he has shared in the proceeds of the sale of the articles made thereunder. As the point raised, howev<;lr, is a new one, and a restraining order was granted in the case, the de· fend ant should only be relieved from its operation upon proper terms. Let the defendant give a bond for $2,000, and file monthly statements of the number of infringing pipes sold, with leave to complainant to move for an increase of security as the facts may warrant. Upon these terms the motion to continue injunction is
BRIGHAM '1.1. COFE'IN
et al. 1889.)
(Oirouit Oourt, D. Ma88aohuae(t8. February
PATENTS FOR INVENTIONS,-INVENTION-PRINTING ON RUBBER.
The specifications in letters patent No. 283,057, August 14, 1883, to F. E. Aldrich, state that the invention consists in a fabric composed wholly or partly of tubber having useful or ornamental desig'ns printed or stamped on one or both surfaces with an ink or compound of a different color, by means of rollers,blocks, or in anyotber suitable manner, the ink or compound preferably containing rubber. caoutchouc, or the like. The ink or compound is disclaimed. Rubber fabrics having ornamental figures printed on them are described in the Dunbar & Lothrop patent of December 14,1875, and the patent of ){arch 30, 1880, to Brigham and others. Held that, as the alleged improvement consisted only in printing upon the fabric with a different kind of ink. ,the patent is void for of invent!on.
In Equity. Suit by Wilbur F. Brigham, trustee, against Judson H. Coffin and othel1s, for the infringement of a pr ' :-nt. ThortU18 W. Clarke, for complainant. James E. Maynadier, .for defendants.
COLT, J. The patent in suit is No; 283,057, dated August 14, 1883, and granted to Frank E. Aldrich, foran improvement in rubber cloths or fabrics. The specification states: "My invention relates more especiaUy to means for ornamenting the cloth or fabric; and it consists in a rubber cloth or fabdc composed wholly or in part of rubber, haVing one or both of its surfaces provided with useful or ornament"l designs or figures printed or stamped thereon with an ink or compound of a different color or shade from the body of the fabric by means of rollers, blocks, or in any other suitable manner, the ink or compound pl'efer-