JUDSON L. 'THOMSON ," MANm"G co.I1.'ilA.THEWAY.
619\
wbether the use of the term bas been modified by mercial usage. The proof here, even on the part of the plaintiffs, is· I refer particularly to the tel;timony of Messrs. Wakeman and Ahlesthat there is no difference between the commercial and the ordinary meaning of the words "seeds" and "vegetables." A seed is ,a seed, and a table is a vegetable, say the witnesses, whether in, commercial language or in every-day life. Now the supreme court have' held over and over again that where words are not used technically, or have not been wrenched from their ordinary meaning by commercial usage, their interpretation is for the court. Thatsame tribunal has, in this very case, interpreted both those terms, "seeds" and" vegetables." Rob-ertson v. Sakmwn" 130 U. S. 412,9 Sup. Ct. Rep. 559. As there are two words in the tariff act, each broad enough to cover the article, it only remains to determine under which it shall be classified for duty, whether as a seed or as a 'vegetable. Turning to the decisiOn ofthe supreme court, (130 U. S. 412,9 Sup. Ct. Rep. 559,) lcannot escape the conviction that whatever the phraseology of the statute may now be" or whatever it may have been before the amendment of 1883, it was the clear understanding supreme court that such determination must be according to the use of the article. This seems to be quite sharply indicated ,by the phraseology of the opinion. Thus in one place it is said that liaS an article of food on our tables * * * they are used as a vegetable." Elsewhere in the opinion it is held error in the circuit court not to allow the defendant to prove "the designation of beans as an article of food," the supreme court saying that "the common tion, as used in when beans are used as food, (which is the great purpose of their production,) would have been very, proper;'" Why it would have been proper to introduce testimony as to how the beans Wel:8 called when they were used as food, I fail to see, unless it was on the, principle, that the use of the article was to determine its classification. The use of an article is a question of fact, and I should send this case to, the jtiry, were it not for the testimony of the plaintiff, which is that, as to this particular importation, the affidavit which he made upon the back of the ,entry is true statement; that are to used exclusively as food. For that reason I shall verdict for the defendant. Verdict accordingly.
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JUDSON
L.
THOMSON MANUF'G CO. 'l1. HATHEWAY 1890.) BuCKLES.
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PATBNTS PoT
. 'Letters patent NO;S26,S57, issued to Jacob J. Unbehend, September 15,'1885, for an in an arctio.1:nJckle, haVing a tongue hinged between the leavll,fl,of a double, 1Iell:1:111e plate by a oail;l-shaped hinge-pin entering between the plates. :and ,having itlbeat;ngs'in transversa recesses, closed in fl'ont, whioh consists in 'the ad·' of thefiexible portion Qfthese dition of v.uards·ao,ro.. fain the hinge-pIn in its proper'1:iearings, and also to prevent lateral'displ.acieIlient;
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FEDERAL REPORTjilR,
vol. 41.
2.
of thll plates; are· not so. clearly infringed b7 a buckle having the top and bottom plateformeq in one piece, folded back upon Itself, with a pintle between the folds. and a in one plate for receiving the pintle, the top plate being pinched dowlpVard, so as to make tue socket smaller, and prevent the pin from sliding about, as t,O require the granting of a preliminary injunction. SAME-PATENTABILITY.
8.
The tongue of the buckle described leters patent No. 305,410, issued to Jacob J. Unbebend, September 16, 1884, being pivoted in sockets extending across the plates, the improvement in letters patent No. 336,769, issued to the salDe patentee, February 23, 1886, which consists in having the recesses receiving the tongue extend only part of the way across the plates, is of such doubtful patentability that a . preliminarY' injunlition will not be granted. .,,"
SAME..
The slQtted. plate of an arctic buckle baving formerly had longitudinal concavo. convex ribs strock up from the plane of the plate along the side-bars, the improve. ment .described in the Unbehend letters patent No. 326,355, dated September 151 1885, consisting in striking upward from the under side of the plate longitudinal. side flanges, and rounding up the same from the under side, is of such doubtful ., patentability that a will not be granted.
.-George W. Hey, for plaintiff. lrederkk P. Fish, for defendanta.
In Equity.
On motion for preliminary injnnction·
SHIPMAN, J. This is a motlon foraprelim,inary injunction to restrain the defendants from the alleged,:inJringement of,three letters patent to Jacob J. Unbehend, viz., NOB. 326,355 and 326,357. each dated tember 15, 1885, and No. 336,7p9,dated February 23,1886; two ents being for improvements in the spring clasp, and the third for an im· provement in the clasp plate of an arctic buckle. , The character of the invention w.hich is describe<l in No. 326,357. and construction which was placed by this court upon the claims which 8realleged to be infringed, were given in ThorruJQn v. Manufacturing Co., 3:lFed. Rep. 791, and 38 Fed. Rep. 602. Quotingfrom the opinion in Nle last-named volume of thEl Reporter:
,;"The invention was a;, improvement upon Unbehend's patent No. 305.410· .dated September 16, 1884. which was for a buckle havIng a tongue hinged be· the leaves of a double. flexible plate by a cam-shaped hinge-pin enterWg between-the plates. and having its. bearings in transverse recesses, closed \n .. ,The same patentee had alsoailother No. 336.769, dated February 23. 1886; but which was applied for May2!>. 1885, before the plication for the patent In suit. which was also for a buckle baving a hinge. pin wblch had its bearings in similar recesses between two superimposed plates. The improvement described in the first three claims of patent No. 326,357 consisted in the addition of guards across the side edges of the flexible portion of these plates to retain the hinge-pin in its proper bearings in the plates, and also to prevent lateral displacement of the plates in relation to each other."
The cam-shaped pin enters between the plates, and pries them apart when it swings the tongue towards its open position, whereby spring ac· tion is imparted to the clasp. The top and bottom plate of the defend· auts'buckle are formed in one piece, folded back upon itself, with the · tongue pintle located between the folds', which are rigidly connected to each other. A depressed socket is formed in One of the plates for the ception of the pintle; and the substance'of the top plate is squeezed or
JUDSON L. THOMSON MANUF'G
co.
tI.HATHEWAY.521
pinched downward, so as to make the socket smaller, and prevent the pintle from sliding about therein. The plaintiff considers that these downwardly extending parts from the top plate are guards to hold the tongue against accidental removal from the socket. The defendants insist that their clasp is not one wherein two plates are pried apartrby means of a cam-shaped pintle, but that it belongs toa different class, in which two plates are rigidly fastened together, and the pintle is not camshaped, but is 8implya pivot; that the spring action is obtained by a spring plate fastenl;ld within the folds of tIie base plate, which co-operates with a cani: projection from the middle portion of the tongue,· and consequently that the clasp neither has nor needs "guards," ,in the Sl'lnse in which that term is used in the Unbehend patent. The plates being always together, so that the pintle is, as has been said, a pivot whereon the tongue turns, the defendant says that "the depressions in the upper fold simply fonn a close-fitting bearing or socket for the pintle." Itt stating the position of the defendants, I have made use, in a compact form, of the language of the brief of their counsel. There i880 much weight in these suggestions, or in some of them, and consequently so much doubt in regard to the fact of infringement, that a preliminary injunction ought not to be granted. . '. The second and thiTd claims of No. 336,769 are said to beinfnnged. This patent is' also an improvement upon No. 305,410. The arms· of the double plates are provided on their adjacent sideswith recessesdr depressions which. the patentee says in his specification, II extend part way across the extensions, so as to allow the outer side edges of the plates to lie contiguous, one upon the other. This I have found necessary in order to prevent the japan from entering the joint between the plates during the process of japanning the clasp, which is one of the difficulties enMuntered in the manufacture of other clasps of this class." The tongue of the clasp of No.·305,410 was pivoted in sockets extending across the arms of the plates. The second and third claims show that the fact that the reces!1eswhich receive the tongue extend only patt way across the arms of:the two plates is the improvement which is th'e Bubject-matterof those claims. I have serious doubt whether a clasp with sockets extending part way across the arms is a patentable ment upon a clasp which has sockets axtendipg the whole way aCfoss the arms. The slotted plate Qf an arctic buckle formerly had "longitudinal concavo-convex ribs, struck up from the plane of the plate along the side bars," to strengthen the plate. The downwardly projecting edges ofthe ribs hurt the foot of the wearer. The improvement in No. 326,355 consisted in striking upward, from the under side of the plate, longitUdinal side flanges, and rounding up the same from the under side. Instead of striking up ribs upon the plate, the edge of the plate was turned up, and the edges of the flanges were rounded. The patentability of this alteration or improvement does not seem to me to be sufficiently clear to justify a preliminary injunction. The validity of the two last-named patents has never been sustained by a decree. The motionia aenied.'
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On bill irifriqgement of letters patent. aridH. f9r complainant. ' Boilrl, for defendants. ,
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bill:iJ:l equity praying an injunQtionanp.,8.00 anddaIllages by reason of tqe infripgemeqt. of'patent October 1,1872, to for ,"aQ im in street railways. ": Defendants 4emu,r ,W the bill: on ..t1w does not, show. the a,courtot ,.face of t4epatent, which is made a part of the it is' ·. .;;-.'J:,'];J;e day:ofthe s1\me on on, the, 7th day ,JPq1;J.ity;r.u}e 17requiJ:es t0li-ppear whiQl;l made when., service .is. mllde, 20 days, be.. "J;ly excludit!g the the rethe praptiqe .of thisqo,tlrt in computiijg time fqr this t4,is propess wll:e !l!;3rve4 in time,tq require tb,e appeara,nce ofthe the 7th,ll,llY ot it,he patent was ,granted pn the ,Jstqar Qf;October, 1872( and Elxpiredorlthe 1st dlj,Y of October, 1889; "sQthat, had whE!!l, ,if tbeyhJLd duly served, not appeared, defaulted. ·In Root v. Railway 00., l05U. S.1$9; thli.t equityo:nly ,takes jurisdiction" in, suits for the infringe,9{ a, where the bplshowst,h,at part, of the complainant's JreJ.lle(Iy is tp.El right to an, 0,1" $oqle speciltl equitable relief, the foundation for which is laid in the bill. And in Clark v. Wooster,Hl} .p. 7, S.up.; Ct. Rqp. 217 ,the court t.hat jii no could the bill ought to c,,[jlPt the case :Il0W' in haclJ4 days of life when biU ,ViM JIQ, applica.t,ion Jor 'all injunction pendente lite was Pli.te,ll,th",d .the ,return-day of the process,. /lIld bewould have bElen 'entitled toa H the a,od As there, ill. nQspecial that all part of the remedy to .'Y4iAb, t,he"qomplaiIlltJ;l,t w,9,u1.4 ,be e11titled by reason of special factsal:no. jnjJlncti9D -w:ou1d, have been awar4e9; by, the ,If llllld 943CreEl proCOJifeaw· · ,fl'4\3:
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