. :,.::'.
, FEI)ERAL
REPORTER, voL 48·
,the circuit court of Pennsy 1va:nia., 'decided in December, lSg0, the judges a state statuteoflimitittions' is not pleadable in bar of an action 'at law for infringement of a patent;, following previous decisions in ,thatcirouit, and citing the late in other circuits in support of the pleas of the statute of ·that view. The demurrerissuslained', limitations will be stricken out. " ' .'.. ,,
BA.G MACSINE ,&
,& WBITNEYCo.
Co.
t1. HOLLING$WORTH
(Circuit Court, D. Massachusetts. December 12, 1891.)
L
,
,PJ.TJIlftS YOH INVlIlNTIONS....INFBINGBlIIBNT-O--PAPER·BAG 'U'AomNEBY.'
S&7,ll6Ii, iS8l:1lldMvohl6,1S86, to'Lorenz and HODisl for an mal1hinery, deeigned to maqufactureoontinuol1s tucked paP,flrtubing paper blanks, with' diaulOnd.foldedends, th" claim for a recip. rocating carnage tosup-port the and, by its forward and backward movemeut, to,OO'Operate in'regulating the ,working of other parts of: the mechanism, is not infrInged by a in ,whioh the, same is by a revolv· ing carriage.
a.SAME.
The, cla11l1 for pivoted fingers, combined with aeoUel!. ,dlstend them, ,theftng,erl ',being deSigned, to" entel',W,I1,.lle di!ltended, the forw"rdend of the tube, , and upwar4 andbackw.ard tJ;lroUgh an arc of 180 degreel,oarrying the upper fo14 to ,a fillt completlpg the 4iamond.shaped fold, infringed by a machine with fibgel'swhich, while closed, enter the tube, and then operate merely to lift up the'Upper fold thereof, While the side folders press in the sides of the tube to the proper sbape. ' "
"
,"
InEquity. Suit by the New Y:ork Paper..:Bag Machine & ;Manufacturing Cprnpanyagainst ,the Hollingsworth & Whitney Company for infringemeil,tQf a pate,nt,' ,. , . ' Albt1:tHr'Walker for complainants. T. Ohamber8 and George Harding, for defendants;
n.'
this easelsTheplll,intiffs ,claim that a by the manuf'aqtu.,.Jeo{pa,per b.ags ,i8,a,n." c.,nt, of plaintiffs' ,patent 837 ,965, W Loreljz Honiss, ;March 16; l886, is for new and useful improvements in paper-bag machinery. ,The .patented continuous tubing machinery ;s, designed to paper,blsnks with diamond-folded enns. "fhepaterifcovers various 'combinliti:Onsof the following partS, namely, a pairof'pivoted 'fingers to hold them apart, are,sl,'de gr . .i,pe:s, The cortta1ns five of whICh 1S for the comblOfibon of the the coiled spring. , 'Tbe others are for diflerent combinations of the various parts,· b,l1t, all contain itselemenls either the fingers, or tbereciprocating carriage, OJ;' b.oth. ThQ only elements in the 'patent which are new" are the firigei's'llhdspi-ing,and.the reciprocating
NEW YORK PAPER mAG M. & M. CO.
v.
HOLLINGSWORTH & W. CO.
563
carriage. The presser-plate and the side and front gripers were well known in papIJr-bag machinery long, prior to the 'patent. The machine used by the defendants in the manufacture of continuous tucked paper tubing into paper blanks, with diamond7folded ends, contains a presserplate and side and front gripers. The plaintifls claim that it also contains deyices ",hich are. mechanical equivalents for. their fingers and spring, a.nd for the reciprocating table. First. As to the reciprocating carriage. The function of this device in the patent is to support the tubing V'1hile being operated upon, and also by its reciprocating or forward and bal:kward movement, to co-operate in regulating the proper of the varioQs parts of the mechanism. All this in the defendants' machine is done by a revolving carriage. 'rhe plaintiffs insist that these two devices are substantially the same, since the result is the same; But the plaintiffs are clearly excluded from this contention by the limitations of their patent. If the patentees intended to claim espart of their invention a revolving as well as reciprocating carriage, thay were bound to state it distinctly in their patent. No hint of such an intention is to be found there. On the contrary, the language of the specification limits the invention with scrupulous exactness, to a reciprocating movement of the carriage, lInd no other meaning can be forced from it. . 'rhe revolving carriage is not an infringementof the claims of the patent which contain as an element the reciprocating carriage. Second. As to the pivoted fingers combined with the coilp.d spring. Their operation in the plai'tltiffs' mechanism is this: As the tucked paper tubing is fed along under the feed-rolls over the surface of the reciprocating table, and as the under-fold of the tube is seized and held down by the side and front gripers. the pivoted fingers, extended by the coiled spring, enter the interior of the tube at its forward end, and are then thrown upward and backwllrd over an arc of HsO degrees, carrying along the upper fold until it is laid flat On the table. This operation completetl the dinmond-shaped fold. The Hngers are then withdrawn, thecoiledspriilg yielding sufficiently to allow this to be done without lacerating'the paper. Now, as I understand this complicated mechanism, the fingers of the defendants' mechanism are quite difwith that of tht: plainferent. They have no coiled: spring tift's. When they enter tho tube, they are not distended, but closed. They do not throw back the upper fold, nor take any direct part in the shaping process. Their office is merely to raise up the upper fold of the tube prepnratory to the action of the side wings or folders, which by turning inward, and pressing upon the sides of the tube, perform their part in giving the desired shape to the fold. This is clearly something wholly different from the operation of the plaintiffs' fingers, which, with the gripers, act directly in giving the shape. The only thing that appears to be common to the two devices is that both enter the interior of the tube at its forward end, and that is no part of the patent. No infringement of the patent is shown by the use of the fingers in the defendants' machine. Bill with costs.
J'ltDERAL REPORTER,' vol. 48. THE PARTHIAN. THE AYR. DOSTON & PHILADELPHIA S. S. CO. ti. SCOTT, (two cases.) (01.rcU1.t Oourt, D. Massachusetts. November 28, 1891.) ADUIRALTY APrIllALS-QUESTION. OF FAOT-CONFLIOTING EVIDENOE.
.
, On appeal in admiralty, the circuit court will not reverse the decision or the distrlct' jUdge on a questionot fact depending upon contiicting evidence, unless it <llearly appears t(l be the weight or eV'idence.
'
In Admiralty·. Libel by Nathaniel C. Scott against the steaVl-ship Parthian for damages for a collision with, the schooner4yr, and crossli}jel by the Boston & Philadelpl:!ia Steam-Ship Company as oWners of Parthian' against the Ayr. Decree in thedistrict court for Scott against the ,Pl\rth;ian. The steam-shJpcompany appeals. "-ffirmed. $hattuck& appellant. ,T. & T.If. RusseU, for appellee.
,a.
CoLT, J. 'These, two caSeSRre involving t1;l!(3 same cQUision between the steam-ship Parthian and the schooner Ayr, and theycQme here>on 'appeal {Nm the district court. " The cases whoijy upon questio11S of Jitct,concerning",hich the evidence is con:\ikting. Thedistrict judge, having the advantage of seeing the witnessel3and;judging frOm their appet:trance, ordered: a decree in the firflt case in {llvor of the libelant, and against the steam-ship Parthian, in the damages, and ,costs of suit, and dismisse,d the cross-libel. . H is the established rule ofthis court that it will opnclusion rea.ched bytbe {;\istrict co.urt upon a offact, where the evidence'is contrl1dictory, unless it c1earlyappears to be contrary to the preponderance of evidence. The Grafton, 1 Blatchf, 17.3; The Sampson, 4 Blatcbf. 28; The FLorida, Id. 470; T4e Sunswick, 5 Bliltchf. 280; GwimaraiB'.Appeal, 28 Fed. Rep. 528; Levy v. The Thomas MelviUe, 37 Fed. Rep. 271. Upon a review of the testimony, I am satisfied thl!-t the decision of the district court w!lscorreot, ap.d therefore the are affirmed.
·
. 1 : :·;1.
_U';::"-i-, '