, DEt:VIN' tI.· BI!:ISE.
'195
the union of the bars: is secured by comer piooes naving grooves, in which the tongue slides, and the; bars&te thus held firinly together without the aid of ,the end groov-es. The,longitudinaltongues form a depression or rabbet around the inneredgeofthe frame in which the wire cloth is secured as in the Stuart patent, and is thus countersunk into the frame, so that its edgings and fastenings are not exposed. Both of.thedefendants' devices contain the of the Stuart patent,witb"the addition of the corner piecee, which .areunnecessllry in the heavier and more accurately fitting construction of the Stullrt The loose action of the tongue and groove in the 1889 pattern ill obvil:msly intended as ,an evasion. of the requirement of thecomplaipants' claims that the slot of eachtbarbe of a size .to receive and be filled by the tongue of the contiguous bar, and is evidently relied upon tore1ieve defendants in case the 1888 pattern be held an infringement. The only real deviation in either of these devices from the Stuart pattern is in the transfer of the strain of the connection from tne groove in the end of the bars to the grooves in the comer pieces.. , This. introductipn. of comer pieces may enable the defendants to give their bars a sOmewhat lighter construction, but it is rather an addition to than a deviation from the complainants' patent. Indeed, as defendants' expert argues,"the bars are just as firmly joined if the slots upon the end of the bar were entirely wanting,"and, further, "that the bars depend entirely upon the corner pieces, as a necessary element to joillthem." In these. devices the defendants have unquestionaply seized upon the two leading features of the Stuart patent, viz., the longitUdinal tongue, to which the 'wire oloth is attached, and the grooves attheend' of the bars, through which the longitudinal tongue is allowed to run" and, which secureS the important feature of adjustability. While defendants may ha.ve the right to make these bars,· if they manufacture them with the intent that they shall be put together in the form of window-spreens, they are liable as infringers. WalIi. Pat. § 407. Should the defendants omit this groove altogether,as they appear to have done. in some much more serious question would arise, but one we do nat feel called upon to consider here. We think compll1inants are eptitled to a decree for an injunction, and for the usual refertlIlceto a waster to compute damages.
DELVIN tI. HEISE
et tIC.
(Cwcuf.t cotJn't, D. Maryland. July 10, 1890.) PI.'l'JI1M'I! 1'O-..IxVBNTIONS-PBlpR STATB OJ' THB ABT-INJ'BINGBlIfBN'l'. Sash cord guides haviJ;igbeen made prior to 1879 without side flanges. an4 with . rounded· end flanges, there is no patentable invention in the improvement described by lettel'!lpatent No. 216,767, issued June 24, 1879; to Sloan and Clarl!:soll, consistmg of '.lIu,h cord guide havillg semi-circular end flanges and aem,i-cYllndrica1 .. aM sides that meet the face cssing'eilds; all of uniform dIameter with tb.e of thlil casing at right angles. and without a flange, wberebl the dev1l:e ill adap" fOr inamortile formed bl' alatterally cuttimg,b1t. '
7.96 In Equity. For
FEDERALREPOR'l'ER,
vol. 43.
Price &: 8teloa.rt, for complttinllnt. W. B.H. Dow8e llnd John R. Bennett, for defendants. Before BOND
letters patent.
and
MORRlS l
JJ.
MORRIS. J. This is a suit in equity for alleged infringement of IJtters patent No. 216,767, issued JUne· 24. 1879, upon application filed April 29, 1879. to Frank B. Sloan and Frank S. Clarkson, for improvement in sash cord guides. The patent has been consigned to the complainant. " :The specifications and claim are as follows:
"Be it known that we, Frank B. 'Sloan and Frank S. Clarkson, of Baltimore city, state of Maryland, have invented certain new and useful improvements'in sash cord guides; and we hereby declare the same to be fully, clearly. alldexactly described as follows, reference being had .to the accompanying draWing, in which the device is illustrated in perspective view: Our invention relates to what are kno.wn as' sash cord gUides,' consisting, as a rule, of suitable casings containing sheaves for the sash cords, and adapted to be inserted in mortises in the window frames. These mortises have heretofore been cut by bit, mallet, and chisel :in' the usual way of forming mortises. the on the face of the window frame. shape of the casing fair, but rarely accurate, ,fit, was tl1us attelined. Our present invention consists in certain improvements on the sash cord guide, described in reissued letters patent No. 8,586, granted to us as assignees of Edward H. N. Clarkson and Wm. H. H. Kesler, February 18, IH79, and is especially designed for insertion in a mortise formetlby a laterally cutting bit, which is caused to enter the window frame. and cut laterally 'to a distance measured by the length oHhe casing of thellasheord guide. This method of insertion posseBsesmanyadvantages., bit is of a diatnf'ter exactly equal to that of the, casing, and as it lR readily made to traverse the exact distance reqUired. a of thecasillg in the mortise is iusured. and m nch time is saved. In :theaccompanying draWing, A is a cast metal casing of uniform diameter. the sides thereof meeting the face at right angles, and without a flange. 'The ends,b. are rounded in the arc of a ci,rc]ehaviilg the same diameter as the casing, A, and the end flanges, a., are similarly formed, being perforatedat CfPf the, securing,serews. .B is the sheave,8\1itably mounted in the the Il1Prtisein ,the bit is caused to enter at a point eorrel'iponding to t1ie. center of the circle of which the end flange, a. is the half, andis allowed to enter to a distance exactly' equal to'the It is then mdv'ed, or the winddw frame is moved relatively to it, until the axis of the bit, registers with the axis of the semi-cylindrical end. b. when the bit is projected forwaril. perforating the frame. It is next moved laterally a distance exactly equal to that between the ends. b. b. wlwn it is withdrawn until its point IS below the face of the framo by the thickness of the flange, a. when it is again moved laterally to a distance from itll original ,point of entrance equal to the length of the casing, A, over all, and is finally withdrawn entirely. It is obviolls that the slot or mortise so formed isbf tbeexact size and shape of the casing, A. and absolute accllracy of fit necessarily follows. From foregoing !lcription of the col)struction of the'.d'l'vice.and themetliod \:If forming the mortise, it will be Seen ,that the eSllential features of the said sash cord gUide are.....First. that it shall be devoiii of lateral flanges; and. second. that its ends, b. and'erid tlanges_ shall be. respectively, truly semi-cylhtdrical ana ;are aware that sash cord guides having uD flanged rounded ends, and others haVing flanged sql1are,.,ends,.are not new, .,nd s.uch we do
DELVIN tI. HEISE.
79'1
Dot claim. We claim the sRsh cord guide herein described, consisting of. sheave, B, mounted in a casing, A, having semi-circular .end flanges, a, semicylindrical ends, b, of uniform diameter, and sides that meet the face at right angles, and without a flange, whereby the device Is al1apted for insertion ira a mortise formed by a laterally cutting bit, substantially as described."
The oldest form of sash cord guides or pulleys were made substantially as the one described in this patent, except that the end flanges, being intended to fit into a seat to be cut out with a chisel, were made. aquare instead of round, and, economy in fitting the pulley to the frame not being so much sought for as strength and finish, the flangeS were continued along the sides, forming a fittinp; strip of metal, for which an accurately measured seat was chiseled into the frame along the deep mortise made to receive the pulley casing. The old sash cord guide being thus fitted into the frame, it was held in place, just as the complain!lnt's is, by a screw in each of the end flanges. So long as the mortise for the pulley casing and the seating for the end and side flanges were made by hand, with auger and chisel, this old form of sash cord guide but, when it was attempted to cheapen the cost of the complete Window frame made by machinery, it was found desirable to be able t() do all the wood-cutting required to insert the sash cord guide with a single revolving bit driven by machinery, and to have the sash cord guide made so shaped as to readily fit into such a cutting, and so contrived as to require the least possible labor and time to fit and secure it in its place. Many attempts were also made by inventors to cheapen the cost .of thedevice, and to dispense altogether with screws or nails to retain it its place.. Among tbis class of patented improvements was: (1) The pulley patented to J. W.Bliss, No. 1,054, February 21, 1854, which was <:lesigned to be retained in place 'by a wedge-shaped tooth, djspensingwith spre.ws, and of which device the specification states: "The. ends of the face piece of the shell [in this case called the flanges of the casing] are rounded instead of square," to facilitate letting them into the' window frame by boring their recesses with a brace, insteatl';bf cutting them with· a chisel. (2) The sash pulley device, patented to Simon Drum, No. 64,957, May 21, 1867, which had no flanges at all, either ;at the ends or sides. (3) The device patented to 1. O. Price, No. 95,138, September 21, 1869, which shows a. flash cord guide with its casing. rounded at each end, but without flanges, and having only a slightly projecting bevel, intended to be forced into the mortise, and to hold its place without screws. (4) The patent to A. Halladay, No. 147,322, February 10, 1871, for an improvement in the face plate of sash pulleys. The face plate or flange is composed of a series of conjoined disks, the end ones being perforated for screws, and the midcije ones having a slot for the pulley wheel. (5) The patent to S. E. MlI4-on, No. lli)l j 303,May 26, 1874, for a sash pulley having a very smaUbeveledflange,"the upper end made oval to fit the oval end of a mortise formed by boring with a bit as wide as the thickness of the case." (6) ThepatenttoJ. Vetterlein, No. 185,536, December 12, 1876,f!>ras8sh pulley similar to Halladay1s, but with the pulley case .. tcdit a Ulortise fonnedof.holes bOl'ed h;Y\Qor::-
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Of the above-mentioned patents, the one to Halladay, February 10, Sldail' all'd:Clarkson'In'ade' their in iii' thlit in' fitting a sash cord' pulley, rdubdj 15(5 as to fit info a seating which Had' :lieen tiy boring' to ft.' slight depth with the sarne tool with which the deep. mortise was cut roreceive the Wheel and easing. Halladay' SHyS! ofbill i invention' thaMt "consists ina 'peculiar shape of the sash puRey pfdtel' whereby a sifigle auger willb& all that is necessary in putting tM'plateand pulley in·t1iewindow fraine. "HeSaYs: '; . of the plB'te'[the' flanges] present a serip.s ot arcs of olrol8l'l. 'WhUethe of the plate [the endfliuiges] aren'early enUre' circles. It will beieea, that with tbis formation the entire sash'PitHey may be ioserted In the With a simple b!>fing bit,and brace, ,a ,holeb.eing bored the. end. qeep to admit the thickness ,Qf ,and the Q.ush with thes!lr(aee. pf,the fra,me. The other 'hj>le's are bored through, bi' sutfich·ritly. dtiap toaditllt the and cord' N'0 chisel' or cutting with anyotber tool than the bit is re:quired," ·:r\ " t · . ,:,:", ' .
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The bit not)l.ppilr.ently'at patent comemto 'use or been knQwntohlm, but every Idea reqUIred to shape ptilleyto.'adapt it for'nsein a mor,tise madel:ly a lateran.,! ,C.. llfti .':I1g.bit is here su ..,I . . . iIthia. p.'atent., Als9}n the paten.t. toVetterlein, Dt:lel:lmber 12i 1876, whicQ is for an attempted improveIIlentupontheItanaday he . ., '. ' . '. . "It is IIsual in',the manutacttire of Sash pulleys .· · · to employ aoase ltnd thlsftange isletinto the surfal:le with a Ilange all around the.outl)l' ofthewoot.l, · ;;* * so that .tbetlimge is flush. In some instancest,he ends of the 'sheave. case have been the segment of a cylInder, but the sides were flat. and, i.n"others the flapge that is let into the surface of the wood has composed of segments of but the case.ftself had flat sides." An inspection 'of the drawings annexed to the patents above cited,and ...reading oftheirspecificatioris, shows clearly that'prior to 187-9 it was in common use to make sash pulleys without side flanges, so that thev could be put into mortises cut byrevohring bits, withouhny side seating, and thesepatelits are convinoingproof, also, that it. was not'a idea in 1879 to round 'the;flange ends, SO 88 to make them' fit into a seating in the wood cut just deep enough fOl' the purpose by' the' Same revolving toOl. And as to:dispensing with the side flanges, it appears not only from the prior' patents above cited, but from others putin proof, that it was an idea coUltnonly used .inmost' of the attempts to cheapen the cost of.sash pulleys,;and to lessen the timi'l required to fit' them in the frames, that for the very reason they are dispensed within'(lomplainant's device and method. ' ,,' Although thellpecificamons and claim in complainant's patent are drawn upon tbe' theory that in order to perform its'functions'the comp]aioan,t'a device .must .be made: in exaot compliance witb whaU. thett
stated to be its essential features, in actual practice this does not appear to be true. The it to be the device shall be devoid of lateral flanges; and that the semi-circular end flanges and ,f)f 98,seshal1, be of. diameter, the semi-cy and also that the sides of the case shall meet the face at right angles. In the defendants' device there isa small flange or fitting strip or project,.; ing 'facealoDg .its sides. Thesemi-cylindrica1,' ends of the case 'are ,less in diameter :than ,the semi..circuliu flange ends, and yet the ,testimony showa that, tor allpracticaF'commercial purposes, do not interfere with its use. It seems that, provided the width of the face including the side flanges is not greater than the width of the mortise Qut by an;ci laterallYicutting bit, and; the l'oullded properly fit iD:to¢e seating made by the bit,Jhe,essentials (lod the,re is no ,doubt that any one of the oldest fashioned' results, proyided its ends made by ,the bit was wide enough to receive the side flanges, or provided the side flanges were're,to go into the ,:r;nortise tl}ade by a given bit. Whether the sho\lld be'reduced or lJltogether omitted'in orqeQ19tw requIre tOo'much wood to beeut away from the' frame, or to aU6w a larger wheela,nd casing to be used without increasing the width orthe mere matters of mechanical Maptation. In all of the prior sasb cord pulleys filed iIi thiscaslt the end ,and, side flanges W4U'eyaried ,msize !!ond 'shape, or, altoge,ther omitted, or,re<luced to a mere beveled edge,asthe inventors thought best, suited their purposea. ' may have been the commercial success of contriving 8 mortising machine with a 'side;'ctittinl:C bit capable of cutting amortise by uioving .in right and I?f soaping a' pulley and flanges which would fit inFO' the mortise and seating cut, by such a bit, we cannot bring ourselvillSto,think, considering the state of the art in 1879, that quiredinvention on the part of these round the flange ends of the old-fashioned pulley and to omit the side,flanges. It isD.oticeable that the testimony with regai'd to the manner in which Sloan and Clarkson arrived at the form of pulley or sash ahd guide ,which they haNe patented, does Mt in any way. suggest inV'entionl and certainly not joint invention. It points rather to the simplest form of reasonillg, in,ference, or deductioll applied to an old and w,ell-knowI) device, to fit it for anew machine-made cutting. Simply as a,sashcor<l pulley; cl)mplainl;lnt1 spulley,isno improvement on the old pulley. It is no cheaper better, ll'nd the fact of its utility in connection with the machine-made mortise cannot be held to change what would be mere ,mechanical adaptation tQ on the.complainant theriKl;lt to a monop()lypf its fOl .:n if, considering what had done by required of invention to .the result elUbodied in pulley;_ moat be : r;
800
PDERAIiREPORTER I
PuTNAM NAIL
'Co.
'IJ. BENNETT
et al. :
'(Olrcuit Oourl, N. D. Penntrlf7rmlfl. Octobe1'6, '1890.) TBADB-l\[A'lUt-INPRINGlI:MlI:NT--FRAUD--PLBADING.
horseshoe nails, which plaitJ,tift used as a tradll-mark, With the intention of deceiving the public into buying their goods:insteadof complainant's; states a charge of fraud, which should not be decided on demurrer, whether the method of bronzing is or is not a teohnical trade-mark. ' .
,A.bUl al1ejfing that defendants b.ave imitated complainant's method "f bronzing
.
In Equity.' Demul'rertopomplainant'sbilJ, which averred that the defendants had imitated their iriethod of bronzing horseshoe nails with the intention of deceiving 'the public into buying their goods instead of the Complainants'. A. B.Weime7-andF. M.Leonard, in supportofdemul'rer. Franci8 Rawle,Owen Wi8ter,' and Sydne;y G. JiTisher, for complainants.' BRADLEY, J., (orally.) . Weare of opinion that sufficient averments are madet<;ltnake it necessary for the defendants 'to answer the bill. It is averred , "The defendants. well knowing the premises, and that. your alone possessed the rigJ1;tto bronze nails asa trade·mark, and to sell the same under tpe trade name, asabo"Ve set forth, have Willfully disregarded the same, and, intending deceive purchasers and defraUd the pnblic and to in· jure your orator;,have for some time past been engaged, luidare still engaged. your orator, uut similar in the sale of horseshoe man\lfaqtqred 'by your orator, wbich theybave had in bronzed bronzed nails, undll,rthe name of ·Imperial names,. containing the word ·Bronze;' and the said Bronze. I nalls, so bronied and sold by the defendants under the said name, have been and areof'lnferior quality to the nails' bronzed and sold by your orator under their laWful trade-mark; andpurchase1'8 and consumers have been and are deceived and misled into buying the arti<.lles so bronzed and sold by the defendants in the belief that they were and are oNhe manufacture of your orator." .
There is here a substantialfaot 'stated ,-that the public and customers have been, by the lilIeged conduct of the defendants, deceived and misled into buying 'the defendants' nails for the complainant's. That aver· ment is an.lplified in paragraph 4. or thf'bill.Now a trade-mark, clearly such, is in itself evidence, when wrongfully used by a third party, of an illegal act. It is of itself evidence that the' party intended to de· fraud, and to palm off his goods as another's. Whether this is in itself hgood trade-mark or not, itisa style of goods adopted by the-complainants which the defendants have imitated for the purpose of deceiving, and have deceived the public thereby, and induced them to buy their goods as the goads of the complainants. This is fraud. We think the case should not be decided on this demurrer, but that the demurrer should be overruled, and the defendants have the usual time to answer. The allegation that the complainant's peculiar style of goods ;is& trade-