124
FEDERAL REPO;RTElh
vol. 53.
ing. The mere expansion ofthese parts where brought in contact does not involve invention. It gives them no new function and produces no new result. It was what any skilled mechanic would do if it was found, in practice, that the parts in contact were liable to twist. It is the same idea,as i$involved in the common and well-known device of what is calle<1Jhe .'. ,fifth wheel toa wagon, that is, a larger bearing surface is given, in order to secure steadiness, and less liability to breakage of the parts·· !tis true that the fO,rm of the parts or elements of the appellant's tJevi¢)=l,differs from that shown in the prior devices which I have'cited, but the essential principle of the appellant's machine is found in the prior devioos which have been referred to. "A change of form of amachine, without a change of mode of operation or result, is not patentable." Winans v. Denmead, 15 How. 330. "A change of mechanicaLstructureis not patentable unless it produces a new and entirely different result." Sargent v. Larned, 2 Curt. 340j Mabie v.Haskell, 2 Cliff. 510j Aiken v. Dolan, 3 Fish. Pat. Cas. 204. The fifth claim. of the Gardiner & Downey patent is a combination claim,thif elements of. the combination being the head, b, the forked plllte,: 0, the pivot pin, a, and the screw, L All these elements are to, be old, but acombination of old parts may make a valid patent, n,ew result is produced by auch combination. The efficient memberol is the screW, i, which is applied to hold the pivot, d, firmly In thll head, b. Ids, as the specifications suy, "tapped int() therearside6f'the head,"sothat it may be made to bear upon and !:iolcl'thepivdt. It is merely what is known in mechanics as '''setscrew'' is defined to be "a screw, as in a cramp, tl1totigh oue part :tightly uponahother to bring pieces of wood, metal,etd.. , inclose contact.". Imperial Diet. ."Set screw. A screw empluyed,:,tO,hold orniove' objects to their beatings, the bits in a Or .brace." I{night, Mechanical Diet. The only function or office {jfthis set screwli, is to hold.the pin, d, pl/ice,-the same result ..isprbduced by a set screw in a cutter head, that of holding the bit or cutter in place; or, as the first definition quoted says, it brings tlW pieces ormetal, thatia, the pin and the head, inclose contact. No new result is produced bythis combination from'that produced by the SCrew in a cutter head. This claim of the patent is thereuse of a fore void for want of The decree of the circuit court is affirmed. ARMSTRONG et a1. v. SAVANNAB SOAP WORKS et a1. (Circuit Court. S. D. Georgia. E. D. April 18. 1892.) TRAl>E-MARK-BILL FOR INFRINGEMENT-PARTIES.
The QireOtors of a corporation may be included as parties defendant in a corporation for infringement of a trade-mark. bill against
In Equity. Bill by Armstrong & Co. against the Savannah Soap Works and others to enjoin infringement of,trade-mark. Demurrer for improper joi.nder of parties defendant. Overruled.
A.RMSTRONG V. SAVANNAH SOAP WORKS.
125
William G. Henderson, for plaintiffs. J. R. Saussy, for defendants. SPEER, District Judge. The plaintiffs have brought their bill against the defendants named, and are met by a demurrer, first, upon the ground that the bill, as originally filed, did not state an amount of damages exceeding $2,000, exclusive of interest and costs. This has been cured by an amendment, and it will not be necessary to consider the able argument of the plaintiffs' attorney, in which he insists that the court has jurisdiction of a suit for the infringement of a registered trademark, irrespective of the amount involved. A further ground of demurrer is that the directors of the defendant corporation are joined as parties defendant, which, it is insisted, is a misjoinder. In support of this proposition the defendants rely upon Story, Eq. Pl. § 235; 1 Daniell, Ch. Pro p. 14.5, note 2; 9 Ch. Div. p. 552, reporting the case ofWilson V. Church. In the case last mentioned it was held that, under the English judicature act, the defendants, being officers of the corporation, were improperly joined. It is to be observed, however, in the language of J essel, master of the rolls: "The legislature. in adoptinlt this act, inangurated a totally new system of pleading; and established a new court of justice. for that is what the high court Is. que system for all kinds of actions, whether common-law actions or equit,Y acti9l1s. There is no other practice extant applicable to equity actions.The olqpractice has .ceased to exist. 'fhere is only one kind of actionand oneki rid of proceqnre." It:waS there held that, as the officers of the corporation were joined merely for the purpose of discovery, and as th e discovery could be had by.interrogatories iQ a court of law, the joinder was improper. It is perhaps unnecessary to' point out that this system has no standing in tlie of the United States, where the domain of law and equity procedure is entirely distinct. In his .admirable work on Equity Pleading, quoted above, Judge Story declares that the officers of a corporation, although they may be witnesses, may be joined in a suit against a corporation" because discovery may be sought from them; and in the case of Glasscoh v. Miners' Co., 11 Sim. 305, cited in 1 Daniell, Ch. Pro p. 145, tile plaintiff was sued at law by a body corporate, and filed his bill for discovery only,making the governor, deputy chairman, one of the directors, and· secretary of the company codefendants with the company. It was objected, upon demurrer to the bill, that an officer of the corporation could not be made a codefendant to the bill which sought for discovery only, or at any rate that the individual members could not be joined as defendants with the corporation at large; but the demurrer was overruled. These are the authorities for the decision. On the other hand, the CUfrent of authority in this country seems clearly to justify the plaintiffs' action in joining the directors. In the case of Poppenhusen V. Falke, 4 Blatchf. 493, it was held that, where persons were acting in concert in infringing a patent, although they act merely as employes of a corporation, they are liable to be sued therefor jointly in one suit. In Estes V. Worthington, 30 Fed. Rep. 465, it was held, Judge
i26 Wallace delivering the opinion, that in torts of misfOOisanMi like the violation of a trade-mark, agents and serVants are' persotlf1:1iJiy;lia'ble, to citil1g.. v. GrltY, ly.fit,Q4ellv. HarmofJX, 13 78. ,It is there, is ,8 class of as me're ,the ca?be: ,although have, pated Ill. Wellets ordinadJy the infringer q\lIluot tneresponsibility by wasact,ing for !lnother. 14 Blatchf,: 4 455. tn,'view,9f the authoribe .overruled. . '
,y..
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THE
KODIAK. December 5,'1892.), .' "
UNITED :STATES v. THE KODIAK.
1:
c'
(District
Alaska. WATERS
,Where lLvesselis;lieIaedtor violation; JOt Rev. St. § 1956; fQrbldillng the of ter!iOOry, or the, wa!iel"',thl'lrepf,$uchseizpre being DlaAewitbintheentr3I\.C!I' otCoolt's inby ,a Una dra"l'A ,froID ,Cape to Bede. bJ' a l;;w;tes in of ordersfr()P:I; the ,government, it must be'prestuned that suchordetswere given in the'as'sertlon ot territorial jurisdiction over the waters of the inlet; and, ilSJthe right to such a .Poll.tlpal,Q.uestioD, thecl¥lrts lnquJ,re ILOO ,but will jUrisdiction as thus by the pollticit1' branch ot the government. ' ' , 2. ALAsJUlir !Fttn' FISHllltuE:S....FISHING BY NATIVES-TREkStmY·. RlllGULATIONS. ltev· St. "I 1956, forbids the k:iJllng ot fur.bearingaIlimllls within. :the
llmits, ,ot.A,l.l!.ska terrltQry, or. the wlJ.ters thereof, thesecretary Qtthe 'treasUJ.t tQ' the kllllng of such ,a.n1p1als; except tnr seal.rlndersuch regn14tforlsashe may prescribe. By an otder of April 21, 1879; "tbe .seeretary fOllbade the kllllng of such animalJJ' by any other perSOIVJ1;l!.8.l\ use of during cer· tain p1OIl#ls,and deC)H,Lred that no vessel wouldbeall0\Ved to anchor in. the otter-killing grounqs, except n:ssels parties of natives to: 0'11 from SUch killlng grounds.: Held, that this,regulation was not vi(jI$.tf1(li'by a fur ,COlDPll'J;ly which, 1n. pW'suance of withnati"es at the l;>eglnn1ng of the' seaaon, took On ,board of its. sbiPParties of such natives, aDd anchored with them in the 'killlng grouiids, fUrllL'Ihlng l them with clothing, provlsioI1$, and the necessary outfit, andal": lowlug,them to live on board andI)1ake huntingexcurl:!ilillS theretrom in tb,elf and at ,the end of the ,season usually ,pUrchasing the skins from, them' thougheaeh native was free to sell ills skins elsewhere; no firearn1sbeing used, arid no white men taking any partm the huntirig or killlng, and the natives not being in any way hired or engaged by the comVany.
Libel filed in behalf of the United States for the forfeiture: .(ilf·the schooner Kodiak for a violation of· Rev. St. § 1956, forbidding1;Jlekilling.of fur-bearing a:nimalswithin, the Alaska Writory, or the waters thereof., Libel dismissed. C. S.J16liIison, Atty. . : :A. C.' na:rry'ltnd John S. Bugbee, for claimant. In Admiralty.