.'
"
"t1·. BEDlllLt. .
463
·The caS$,js,Dotone in tobeglvep,a ,more liberal construction ;than their language'fairly requires. The sep, 'ofthe patent lia:s never commercially, and the only evidence that it can be made commercially is found in 'tion oHhe:expert and counsel'for the 'complainant that the defendants '. are making it. In view of the prior state of the art as shown in the rec"ord, the only novelty of the invention of the claims resides in anew or· ganization of the stem' and stud relatively to each other in details of form and pr0l>0rtion, except in instances where the·· two parts.aremlide ,integral,> unless it fesides' in assembling the two parts together before they are applied to the fabric. · Without passinlpipon the, question of the patentable novelty of the'pombinations, .the bill is dismissed because the defendants do
(CircuU
,/
S.
v.1(e!» .York. . . '," ',,"
8. 1889.)
.
PATllNTB POB INVENTIONs-INFl\ntlritpN'l'-"-BABKWr-.CO'VEB !<'UTllNINGB.
The claim of letters paterill issued .November 4, 1879, for an improvement in basket-cover fasooI1lngs; W'aS for a combination of (1) a box or basket; (2) a cover on the basket; and (8) a metallic fastener, at one end of which there is a hook attacbed to the hoopQi. the basket, at the opposite end a bend at an acute angle, provided with a IIharP 'point,which is driven into the basket cover, and in the middle a rectangular bend. The specifications said that the fastener device CIil$\J.ni ¥lanner the micidl.e .buqhe'prigiul!>l·<;iaim, being for the fastener, was rejectetl, and the claim. was ·stn.eildea. ' IJeld, 'that sale of the fastenel' Without the mIddle bend, alonel did not infringe the .patent,IIDil\l!-s it was capable of innocent use, it was ilIlJpaterial that it was also capable of bemg bent so as to infringe. " . "':. . '
In Equity. Bill for infringement of pl;l.tent. William H. Arthur '11. r.
\,v... ... . '
.',.t",..
",
BriksfJ/r., for defendant.
for complainant.
,'No.' 221 !
cciilri,J'. tufniifis ank6tioIl,'of infrihgerileilt, based Ndvem ber 4:, 1879, . for a,n
:"'i'he IIl-Y,enHoncdnsists .in thllcombination,' With II Jjoxand 'its:cov'er, or a middle. bent'agaiu:nearthe other end ,at an
'Specification 'says:.'
.'.. .·...
in ' basket. ,:. ", .. and:provided
· ·
beD:tito form at OM end a close hook. ,bent again 'rectangularly
with,asharp.,point for entering tfietop of the ;cove:r.
:..*
.. f.or.the pu. J:P ()SIl.,"o.f.. . .... .. g. . ... co.,v.ers.,.. 0.f . per. 'b.an.dba.. x es . . .. ,E!l1pilar lIorticles. Wh"n ,'or that· the !IOOlt.' B, is Inserted iri the of the, body oftile device Mwn the side I of the box. intO.which the pOint; C.is inserted, and ,is retained itI}>laee bj'the -'hold'prbdueed brite'aiigle. ... ,... ," I do Dot 'btuadly' claim a tnl'ltallic bar or rod' benti itl'to shape for !bolding a basket cover. on a 'basket, "that suelj. .is hot broadly: new: ;,bg,t ;wbat :I dq ; . i ,... ,r j , .. E. a. ,b,l:!!Wt,llrt b
,m.a1.a.lso. be.,. .
(.
I
'" "
,,-,",:-;'"
,'"
-'-,
''I'
,'.
464
vol. 40.
to format one Eihdthe close hook.. :Hi bent again: rectangularly near the middle at a, andbavingnear'the other erid a bend, c, forming an acute angle, and bavingasharp point, C, foro.ed through tbe -c.over, to complete a firm fastening, " I The claim is therefore for llo ,combination consisting of the following elements:' First,a box ot basket; second, a cover 'on the basket; third, a . metallic fastener, at ,one end of which there is a hook attached to the hoop of the basket, 'at the opposite/end a bend, at an acute angle, pro, vided a :sharp point, which is driven into the basket cover, and in the middle.a rectangular bend. ,'!'he following diagram will serve to :ill1!astrate,the combination ,of the claim: '
./
'.' ]'ig. 1 oOhe gular bend. ',l
shows,the fastening device without the rectan' ,;
A.
B i l1Qughtto, cover but was rejepted ll1pOn, various references, " It ,was ,not until he had abandoned the claim for the fastener, and had explicitly stated that"the claim is now 0,0 fas,tening bar ptrr before or after application," ,that the patent was iS811ed in its presElnt restricted form. Thedefendant sells "the fastening bar per se,"as shown in Fig., 1. There is no evi"dence that he has at any time used,the patented combination, or sold in the middle, In this conneethefastener with it should be the specificatiop. describes the use of straight fastener for securiflg,the covers of paper boxes, then,.isthis:Can thecomplainapt, who has described The . a ,straight. fastener,and a use towhiohit may be put, but has not straight· fastener,either singly 0r in combination, maintain intringemeritagainst . one who sells the fastener· in this form only?
FALLS RIVET CO. tl. WOLFE.
465
Manifestly not. The defel1danthas not adopted the combination of the claim. He sells but one element of it. It is urged that he should be held liable because his device" is capable of being bent" so as t2 infringe. But this argument would apply with equal force to an um· brella-slide holder, a bale-tie, or a hair-pin. The complainant cannot invoke the doctrine of Wallace v. Holmes, 9 BIatchf. 65, and analogous authorities, for the obvious reason that the defendant's fastener is susceptible of a perfectly legitimate use, which the complainant himself has taken paipsto point out, Snyder v. BunneU, 29 Fed. Rep. 47. Tojustify 8 decree for infringement, actual proof must be presented of the defendaQ,t's illegal acts. It will not do to substitute therefor suspicion and conjecture. As the complainant must fail upon this branch of the <laBe, it is unnecessary to examine the other defenses presented. The bill is dismissed.
FALLS RIVET
Co. et al.
".WOLFE
et ale
(CM'cu'lt Court, W. D. PennsyliVanw. November 12, 1889.)
.1-
.P.t.TBl'lTS FOR
Letters patent No. 808,872, for atl improvement in friction clutches, granted to William D. Brock on December 9, 1884, construed, and held not to be infringed by friction clutches manufactured under and in accordance with letters .patent No. 812,122, granted to Harry W. Hill on February 10, 1885· Brock's first Claim, as originally filed, was for "the ·combination, with a .shaft, and a loose pulley adapted to run freely on said shaft, of a .clutch rigidly secured to said shaft, having two inversely moving radial jaws, adapted to orie upl>n the .periphery, and one against the interior, of the pul1ey flange, said jaws being connected, by suitable mechanism, with a laterally moving sleeve and shiftIng leTer, whereby they may be simUltaneously' opened and closed as said lever is moved towards the right sn;d left;" but, the examinE\r having ruled that the words "suitable mechanism" rendered the claim "vague and 'indefinite," Brock struck them 'out, and 'substituted therefor "lever J, link, I, and lever, F." Held, that the constituents thus into the claim are material; that the claim should be construed strictly all'ainst the patentee, and in favor of the public; and that a mechanical connection between the clutch jaws and the shifting lever Is an essential part of tlte combination. '
CLUTClIES-INFRINGBMBNT.
.. BAHlli",,:CONSTRUCTION OF CLAIM.
"SAME.
Brook and Hill were contemporary independent improvers Of an old mechanism, the sUbject of many prior patents, and perfected by progresslve;s¥lps, .and each Is entitled- only 'to his own speclilc form of device.
In Eql?lty.
Livinga{pn Gifford, for complainants. Watson & 1'hw'ston and Georqe H. Ch1'iaty, for respondents. Before MCKENNAN and ACHESON, JJ.
ACHESON, J. This suit is brought for the infringement of letters patent No. 308,872, for an improvement in friction clutches. granted to William. D. Brock on December, 9, 1884, upon an application filed April 18, 1884. The plaintiffs are the Falls Rivet Company, assignee, under certain reservations, of the patent, and Brock, the patentee. The V.40F.tio.8-30