...::
REPORTER,
vol. 41.
being removed, the; slit. ,gllin.' When a flapwHh:a,prfljection; Bu'chMis shown in,the cut above, the outside, this tendency opefil.tes to bend the flap inwards, and the coarselithe Illllteril\1 the marked does sucn, tendency becorpe1 Thus, when, a pulL comes, the straight edge of the the thick card.;boardcomposing;the projection of the flap is brought up against the straightedge of the:slit through which it was thrust. The exhibits seem to 8upport(jQlllplninant's contention as to the way in which its locking device, works. . . In the various pll>tents Pl,lt in evidepce ;there is no anticip,ationof this :mode of engagement. The locking devices in them .hook into f)ne or other endi)f the slot; ,They do not engage to straight edge;: and the second clairnof the patentl restricted to a locking deviGe as aboye set forth. must :tperefore be sustained. The: only between thia,device and the projecting flap.,ofdefendant's box is form.· The llotchin the lat,tel' projects, ll()t ,upward, but inward;, being produced by;d,oubling the end of the flap ov.er upon itselfl and riveting it. down·. It is, however; located· pa1Jlllel to the vertical corner I slips in without :ben.ding, is brought ,jnto activity by>'he pressure oOhe ,m!l.tedal thl'oughwbicb the slot is Cij,t, and engages with such material, strAight edge tostraigM edge. The structures oOmplainedof, thetefore; infringe the ,second, claim of the patent, and there ,must be a decree for ,the complainant.
-e'noy
,paper';
;J.'
TATUM
et at ,t'. GREGORY ,
et at
CCircU'lt Court, N; D. '('JdU/ofnw.. January 20,1800.) ';.,
l.l'.i.nm ,i',,"
HeW oJ) tlleljlvidence that.clalXQ.>1 of;paliel:lt: NQ.2'l7.ln8 by ,
, .... infringed. " .
.' . 1 ot,patel:lt NQ. "J;ld tb,at claim 8 of N9. is ",; , . . " , ". ,
.'$.l'M......8TA'l'BOP, TBBART-'-EvtDBNCB;:);' : " . ,: . .Evidence of, tlle llxl,atenee of a singll' i,plated machine many years prior totl;1e ',.date which is not, sh'c)Wp to bave gone intO use, is not oompetent bk'
" ,:
. ,'.. '" free from
a.&.ui.. of , . " .f1"()of
tOahow the state of the art<· ,: i : . . . .
."
. '
>.
i;,;.:'
:J" 'tlln01'w ," .
of, the
the ll:rt. . doubt, . ;'Illl
':
'.:L:. " ' ; . .
must be clear and s!'tisfactory and it'relates' to a . time many years ansolely ol:ll;Lj,J lpemory. .,.. .., .' . ,,' ",' "
"
..
,', . :,
,
'Iii cOllstrultlg'patents the dCJ6trltteofIilechlmlcal equtvlllents is appllcableto land' improvementeon primary inventioDs, '.: l, .', ',' .; " '. '. .. ,'f.', , ',,' · " I , !A:'clalm for lI,'eomblnation of eleIllentlt istinfringed only by 'use of-lill , :',iaJIdwheJ!e is: claar qnl;y:as, 01tll.e ·,e1eJ,l1ents otthe combi)l,Btion by IS not clear or satisfactory 88 to the . .UI8' of tbeotherelements. iliwlllbe 1WiZd TiDat :il1fringement:is :not proven.': i the Court.) , ·.'L, i :1,., ,'! '. :' ..'ClaiJilll for combiuations of '. ', 1. lUI, 'Wi8l.
.. "
;.;
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.Suit on three letterspa;tetW for improvements in gang-edgers granted to J. A.. ·Robb, and' assigned' to complainants, numbered 227;926, '258,946, and 290,358jand,dated May 25, 1880, June 61;1882, and December 18, 1883. In order to show the state of the art, a witness for respondents produced a sketch, marked "Exhibit 19," which he stated represented a machine seeuby him at Bangor, Me., over 15 years before, in the shop of a manufacturer. Said sketch was roade solely from memory.' Only one machine was claimed to have been' builtliki:l :the sketch, ltndwitness was not positive that it was eve-r in actual use; after building the one machine like the sketch, the builders changed 'the form of' all future machines, and built them on a different plan,'underthe patentof one Richardson; a copy of which is in evidence, andsllows-amachine enti,telrdifferent from the:sketCh·., ' '. ' c '!Langhdrne &: Millerj'-for col:nplainants. . ,'; .John L; BOIYrte, for respondents. ·;'BefareSAWYlllR; 'Circuit Judge. . i ·
lIiEquity·
.vL 8AWftB,' f
l,of patent No. 227,926:i9 infringed. I dori6t think there is any limitation,l'equired by the state of the art as shown; to 80 'limit the constrilction ofthe claim as to deprive tbe patenteeiQf'tl;\e benefit't)fhis invention in. that case, Claim Nora in patent 258;946; I d.onot think the proofsflows;to have been infringed. JDefeI1dants' de:. vloe dollhtless has one oithe elements of the .claiIri'in it, but It iaI10t saiisfamol'ilyshownthllrt ,liUthe elemei:1ts in thkteorhbinationare'ttsed; I 'dbI1otthinkthe claim iil 'that patent is showntbbave beeninlrlngetl in this <lase·. In the case of-patent No. 290:,358 Jhad: somediffieultYt biltup()l1 a full examination lam satisfied that-that daim is infringed" also·.... There is no Iimitatioh:6f'collstruction reqUired bythe ,sf.a'te'1)ft,lie art!assliown, to cut it off. Exhibit 19, which is most as alfi'ol'dinggrdunde fot -lithiting',the scope-of the patent,' Idoh6tthink is such form as 't,d be: in' a .position toe'ntitle it to 48 'Shb'Wing the statlr or'the art.: Besides, lam 'not sartisf1ed"thld tnat e'lf!iibW'is,a'plnn of,anY:inachin'e that was befdre' 'CoIiStructll'd', .ITheprotif is entirely unsatisfactory·.:tt'iV8.6 drawn by a. party from! r'l1em'ify,.who claims to have seen 15 years ago the machine represented by it in one of the eastern states, and eertainly,. was not drawn after the patent of Richardson, the one under which the machine was constructed, if ·....·{ l1mpqt .8atisfie4 structed as the witness has is one of those cases where a man who back a great rpanY.yea.rsthinks something he saw in New York 'or Wisconsnt, df lit some 'other distant point, is similar. f ,thinkit caucut,nUyifigure in (J(:mstruing the' claim :q.uestion. 'ldo not on, for litilitingthe the to . ,','., ',;,;; The case of MoOormi:ek Paleott",2G"'HoW'1'4G6',' was'
am 8ll.tisfiedthat
J., (orally:) 1 ha:ve examined this ciIse with great carlk' I
hDER;AL
41.
Itrongly as limiting this construction. The point covered.there relates E!Q;uivalents ot 8ubstitutes. That case once troubled, a good deal. It was in, the first patent case that I ever tried, when I was not very famUi$rwith the subject. It was pressed on xne,very earnestly,oasholding that the doctrine of mechanical equivaJents ,or substitutes had no application to improvements in patents, or patents for combinations of old elements, and only related to original in:v:entions new devices. The point Wall argued and pressed very earnestly. 'rhe Ipo!le language used in the opinion, perhaps well enough as rel",te(1, to. ,the. facts of that case, affQrdedsome ground for sUc;Jh a.contention.:! not see why the <ioctrlne should not be applicable to co;wJ:,ipations and improvements to original patents and I fejectedthaUheo:ry. · 1 was afterwarp.s fully sustained in the view that,J toqk, in the ca'3e of fl,ov,fd v. !(ea, 15:Wa!l. 192; Seymour v. Osborne, 11 Wall. 555, andQiay. Wells, Wall. 28, where the court stated in very decided ferms that of equivalents was as applicable to improvements and combinations of old elements, as to original inventions and new devices. defendants in this ClJ'se, however.lltated, really inthat doctrlne, whether equivalents in the character :of. substitutes in patents for improvemellts. They it is so. very dil:!tinctly,stated in those cases. In view, Ido n9t is anything in the prior patents referred t() which sllQuld (lut'out the claim, or lim,it it so as.to thia improvement or: avoid an infringemento:, lamaf the opinion that that claim i. also inffinged,.The result isthat,,(llaimNo. J, in patent 227,926is infringed,.spdclaitll. No.1, in patent 290,358 is infringed. In regard to the other 1 find ill; favofof the defendl'nt, that is to say, no infringement is satisfactoril,y,proved.· Defendan,tsmay infringe hereaftef, but as to this case an Jnfringement is not8l!-ti!lfactorily pfoven. Mr. Milkm. That was the set up containing .the T slot.· PM· Court. Yes, the defendant's mac1line evidently has the T slot. but it does not appear that it has theothef of the combination. The testimollY,iEl, very brief andvefy loose. It undoubtedly had aT slot, but,therea,re two or three.:othe", elements. that it does not torily.appeRf tbfl,t. the
me
NATIONAL ClDHREGISTER , 1 ;
Co; ',: .
11. BOS'1'ON CASH IND!OATOR
CoRDER '."' ' ' .' '.",
Co; ' .,
& RJD. '
(Owcuit Court, 1). '.: ' '- .
. ,
, · 1
lanuary 4:,:181)0.) ; ,,' .' ! .'
r..t.T.1n'1I
lOB· ,!NlVNQ1ION. . Where it appears that tile patent incantroversy is only a year old at ttme of suit ',·lor,' 'iri'tringemen,tI" .the, camp,lainan,t fails to show; e,ither a P,nor adjudioation, SUIItB,lninltthe ,vaUdlty of the patent,.or publio acquiescence uppn whioh a pres'qm})l 'tion o£validity may be based, and the defendant has signed astipulatiQn agreeing 1101. to make or sell any instruments emoodying the deviCes ·alleged toinfrinp Ul. patell,t iD,iUlt UDtU an wijl be denied. . ;