92()
J'EDERAL REPORTER,
voL 49. 'et
COMMOSS 11. SOMERS
ale
«(X,.cuCt 1.
CO'Uf1,
E. D. New York. April 6, 18119.)
a.
patent No. 184,759, issued November 28, 1876, to Joseph T. Commoss, claim "the method of preparing metal plates for direct printing by mesH of pale boiled oU, BEluguela 'varnish,turpentine, white lead. magllesia, and soap-stone, in about the proport!ons and in. the manner herein substantially set :forth and described." Hela, that the patent covers only the speoi1ied method of Using this partioular com. position, and Is ,valid to The'onlyeVidence as to infringement was the testimony of tlie plaintiff, as an expert""to" th,e" effect th,at, ,in b,iS opinion, a certain box, shown, in. evidence, was printed. :trow treated with a composition "varnJsh, boiled 011, and liom'e'oo10l'M't>lgment," "in suoh proportions and consuitencyas to produce a smooth sUrface,;' without stating that it was dried, or trea)ied with soap"stone andml!olrnesil!ot according to his, method. Held, that this was no evidence whatever of lnfi-itigement, .and hence that no presumptions could be indUlged against defeIidantittem his failure 00; show the nature of his oomposition and method of treatm,erl,t.; : ",'
·. IlJVIIINTIONe---;ExTBNT 011' CL,UX-P1llllPARING PLATB8 MR PRINTING.
In by T. Commoss against panie1 T. Somers and JPr, infringe!u('lnt of a patent., Bill dismissed. " Samuer" for orator. Robertll.{!ttrn:a.n, for defendantll. '/.'i '
WHEEL'I!:R"l>istrict Judge. This suit ,is brolJght upon patent No. 184,759. ofNQvember 28. 1876, gra,nted to the fo,r,an ment preparing :metat,surfacesfor printing ,upon," SQ that they 'printed upondire<lt, and afterward!! struck up without injury.';l'he:specification describ('ls using a composition of nine pints of pale boiledr;()iltSix of Benguela and one of turp('lntine, with 16 pounds . oL;white lead ground inoH, mixed, at 125 deg. Fahrenheit, strained or more graduated wire screens, applied to the plates, and keeping tbemat125 deg.Fahrenheit 48 hoUrs! when they are powdered1Vith two parts of magnesia and one of,soap-stone. The is Qf preparing metal: plates for direct printing by means Qfpllle. boiled oUt Benguelllo varnish, turpentine, white lead, magnesia, andriIlOJl.p-stone in about the proportioDsand :in the mann('lr substantiallY,Mherein setforth and de.scribed." This seems to be a pat. ent for this.:p,l'e¢ise method, of using this particular The upon are ,not shown to have been by this method, nor substantiqJlyrlike it, and the patent appears tOQe valid. No infrhigement is shown except by a metal pOJC, about which the plaintiff testifies as an expert: "I am ;cMtldent: that the plate from Which this box lsmBde was first coated elastic smooth body or composition composed of varnish. boiled oil. and some CQlored pigment. or such proportions Rndconsistency as to produce a smooth surface; and such composition haslloated on thE' sur. face of such plate so as to dry without brush-marks. After this composition has been dried, the plate has been printed on in a lithographic press, and then formed into the box."
BRACHER
v.
BAT-SWEAT lIlANUF'G CO.
921
If this pigment was the equivalent of the white lead, and this varnish of Benguela varnish, as they may have been, the turpentine, and magnesia or soap-stone are .left out of the composition, and it was accordingly different from that of the patent. The screening is wholly left out of the process, and simple of the plates, after the coating, left to take the place of baking 48 hours, at 125 deg. Fahrenheit. Neither the composition nor the process so shown are the same as those of the method of the patent. That they may have been the same, and that the defendants could have shown them to have been different, if they were, and have not, is relied upon to make out that they were. In Wylde v. Railroad Gb., 53 N. Y. 156, referred to for support to this argument, there was some evidence tending to show that the defendant was one of those liable; and whether it was or not could be made to appear from written contracts· in its possession, and not produced. The court said: "The defendantskriowing the truth, and omitting to speak, every inference warranted by the evidence should be indulged against them." Here infringement is denied in the answer, and was to be proved. The orator does not even say that he thought the metal of the box was prepared for printing by his method, but only described a method not his. The omission to produce evidence will not supply evidence wanting on the other side, although it will strengthen that which is slight. That the defendants have used the orator's method does not appear to be proved by any degree of evidence. Therefore the bill must be dismissed for non-infringement. Bill dismissed.
(O£rouit Oourt, 8. D. New York. A8aXGlQIBNT.OJ'
April 5, 18l1'.l.)
Where a manufacturer owning certain patents, in pursuance of an agreement \0 form a corporation which is to include the properties of several rivals, and of which is to the general manager, assigns his patents to the corporation witl!.out reservation or condition&, except that the company is not to assign them to any one else while he continues to hold his allotted proportion of its stock, such assignment cannot be considered as subject to the condition that he shall be retainlld in his position as manager, and his discharge by the company, whether with or without cause, will not revest in him any interest in the patents.
Ol' CONTRAOT,
In Equity. Suit by Thomas W. Bracher against the Hat-Sweat Manufacturing Company. Bill dismissed. Arthur v. Briesen and Esek Cowen, for complainant. Julien T. Davies and John R. Bennett, for defendant. COXE,
District Judge. Nominally this is an action for theinfriQgement
'Of two letters patent. Its real purpose, however, is to test the validity .of an instrument by which the complainant assigned these patents'to