804
FEDERAL REPORTER.
vol. 53.
distl'ibuted;by means of an endless chain, to se\Tel'al conductors, lead· ing into (ij:fferent furnaces.· . each conductor is a valye, by opening whieh the sawdust can be diverted from the furnace on to the floor of the furnace room. This corresponds to the branch pipe of complainants, leading into the so-called "receiving room." By means of a pipe running from a fan to the furnace months of the conductors, an air blast is applied to the sawdust just before it enters the furnace. This corresponds with the claim of complainants, in their reissued patent, for any means of applying force to the sawdust and shavings Il.earthe furnace mouth of theconductol' pipe. We have in the Em· law patent, then, (1) the (2) the conductor, through which the d1J,$t drops by force of gravity; (3) the valve for diverting shav· ings from furnace, and (4) the reinforcement of gravity by air blast at the mouth of the substantially as they are claimed by oomplainants. They make their entire combination, and produce the result. Thefumace fuel feeder of A. Warne, patented 28, 1888, (No. 388,468,) for which application was filed Feb· 1887, five months before complainants filed their application original patent, anticipate,s in every particular the combinar tion of complainants, as specified and claimed in the reissued patent. It has the main air .blast discharged into a collector, and escaping from its top ; the falling of the dust into a conductor, the diversion, by branch pipes and a valve, of the dust from or to.the furnace, and to or; from the receiving chamber; and the application of a steam blast t4e furnace mouth of the conductor. There are other fe/ttures of this invention not contained in complainants' patent, but every element which is in theirs. is in Warne's, to produce the same result In:t1leview we have taken of the validity of the reissue, and its novelty, it is unnecessary to consider. the other defenses. Bill dismjssed. I
BRUSH ELECTRIC CO. et lil. v. ACCillIDLATbR CO. (Cireuit Court;n. New Jersey. January 19,1893.)
I,
PATENT FOR INVENTIONS-INFRINGEMENT-INJUNCTION-CONTEMPT.
An injunction having issued restraining defendant from making,any secondary or storage batteries embodying the invention covered by letters patent Nos. 266,090 and 337,299, issued,respectively, October 17, 1882, and March 2, 1886, to Charles F. Brush, defendant subsequently, after a full hearing, procured, upon certain conditions, a modification thereof, allow· ing it to supply to Ii certain street-railway company, with' whom it had a contract, certain batteries required by that company in renewal of batteries already furnished, which were ofa size and form that complainants could not supply. In procuring this order, defendant produced in court its contract with the said railway company, which proYided that defendant should for three years superYise the operation of the electrical equipment supplied by it, and for this purpose should furnish and pay the salary of a supervising electrician, W];I.0 should have general charge of the operation of the storage batteries in the company's cars. Held that, although the order of modification merely permitted defendant to "supply" such batteries, it must be construed to also permit defendant to supervise their operation according to the contract, and defendant was not guilty of contempt in so doing.
BRUSH ELECTRIC CO. V. ACCUMUJ,ATOR CO.
805
2. SAME. The injury to complainants arising from the order of modification from the permission to furnish the storage batteries, and no addItional pecuniary damage was caused by simply allowing it to supervise the operation thereof, after having installed them under permission of the court; and hence complainants had no special ground of compiaint in that reSDect.
In Equity. Bill by the Brush Electric Company again.'ft the Accumulator Company for infringement of It patent. An injunction pt:-ndente lite was heretofore granted on of 1h.e decision of Judge Coxe in the circuit court for the sunthern district of New York, in Brush Electric Co. v. Electrical Acculllulator Qo., 47 Fed. Rep. 48. The cause is now heard on m':ltl,JIl tn attach defendant as for a contempt in violating the injunction. Denied.
W. H. Kenyon. for the motion. F. H. Betts, opposed. GREEN, District Judge. This is a motion on behalf of the com· plainants, to attach the defendant as for a contempt for the alleged ....iolation of a certain restraining order and a preliminary injunction heretofore granted by this court. The bill of complaint was filed in this cause to restrain the alleged infringement of certain letters patent granted to Charles F. Brush, dated October 17, 1882, and March 2, 1886, and numhered, respectively, 266,090 and 337,299. These letters patent had Leen adjudged to be valid by the circuit court of the United States fer the southern district of New York, (Brush Electric Co. v. Electrical Accumulator Co., 47 'Fed. Rep. 48,) and upon presen· tation to this court of the record in that case, and it appearing thd the matters and facts therein set forth were in all things identical with the matters set up in the present bill of complaint, an order was granted by this court upon the defendant, on the 11th day of De' cember, 1891, requiring it to show cause why an injunction pendente lite should not issue, pursuant to the prayer of the bill; and it was also ordered, at the same time, that, until the hearing of that order to show cause. the defendant should be restrained and prohibited from "directly or indirectly making, using, preparing, selling, or disposing of any secondary or storage batteries embodying the inventions alleged to be secured to Mr. Brush by the letters pate:J.t ill 1lte case." Upon the hearing- of said order to show cause, and after argument by counsel for both parties, it was adjudged that an injunction pendente lite should issue against said defendant, and consequently, on March 19, 1892, a formal writ of injunction was issued, strictly"Commanding and enjoining the said defendant, its associates, clerks, attorneys, solicitors, agents, and servants, and all persons claiming or hold· ing under or through it, to desist and refrain from directly or indirectly making, using, preparing, selling, or disposing of any secondary or storage bat· teries embodying the inventions, or either of them, covered in or by claims 1, 2, 3, 6, 7, and 12 of letters patent of the United States granted to Charles F. Brush, March 2, 1886, and numbered 337,299, or in or by claims 7 and 14 of letters patent granted to said Brush dated October 17, 1882, and numbered 266,090, or from any construction, sale, or use, in any manner, of any improve· ment in processes for making secondary batteries and secondary battery
806
: FEDERAL ImpORTER.
vol. 53
Ih
elements described or claimed in any or either f!ill!d ,letters pa.tent;'" , . ." . . : :",!-q
of '
the above-recited'claim'i; .'\, . ,
\"if'
.
.-
,
. This"writ of injunction was duly served on the defendant, as appeai'l1lbY':t.heproofs suornitted on thismotion, on Mar* 21, 1892., At the time lof' the order to show cause and the granting of the injunction pendente lite, the defendant c()mpany was under COl1tr:a&twitUcertain :companies to: furnish to them stoliag'j:l of its Ulanufacture for the operation of their various , It should be stated that an appeal had been taJren by the dl'lfendant from the judgment and decree 'of, the United States circuit CQ'!lVt for the southern district of New York, sl1Staining' the letters pa;tWil.t'Qf the complainant, to the circuit court of appeals for the second circuit, which appeal,at, the time of, the filing of the bill of complaint in this court, and attlle time of the making of the restraining order and the granting of the 'ptellminary injunction, was still pending and undetermined. It is an admitUid faCt that the life and there must of a storage ,:Qattery in constant use:is ,quite .be constitJ;lt renewals;' eIther of itseU complete structure, 'or ofilie elements which enter)lito that it may beprodtiCtiVe:of the results. The contracting customers of the were thereforemaki,ng constant demands upon the def¢ndantto repall:, the storage batteries which they had originally obfaineti from it, or to furnish new necessary for the continuance of the motive power upon their respective railways. At that tjrne,'a!sO. it hi. admltted, the storage battery made by the defendant, has. been a4judged to be an infringement of the complainants' battery, was somewha,t, different .in ,form and size, so itha.t the elements Of, .the battery of the compimIiant8 could not be ;sUbstituted readily or easily for the elements.of the defendant's battery; and,ittollowed, as consequence,that aa the defendant and the complainants were theonIy corporations in the United States manuif the cowplainants could not immediate'facturing l1lto#l:te 'lyand Pr9UWtlv furniSh 'Wthe defendants' the various ele·meI;lts of. a storage battery in such form and shape aa to be.substittIted. foio llI;ld be immediately installed in the place of the storage batteries then being used, the operation of the various companief!l using .the storage batteries must necessarily cew;e, for a time at leaat. . Under these circumstances the defendant applied to this court on Decemhe1', 1891. for a modification of the restrainiilg order reo by the counsel, and in view of. these facts, 'tb,e order theretofore made waa modified .so as to permit the defendant cbrporation, until the further order of this court, to supply the customers with whom ithM contracts, express or implied, wfth.batteries character and kind which had been adjudged upon the condition, however, that they should file, a bond with the clerk of this court, in the penal sum of $10,OOO,asseetIrity for the payment to the complaintUlts of any profits ox: damages, that they should be entitled to recover ,hereafter by reason of such supply, if the decree of the circuit court shouldbeaf· firmed by .the 'circuit court of appeals. The principal customers' to
BRUSH ELECTRIC CO. V. ACOUMULA'1t>R CO.
807
whom these batteries were to be supplied was a railway company in Detroit, Miell., and one in Washington city, D C. After the issuing of the preliminary injunction on Mayl3, 1892, the defendant corporation again made application to this court for a modification of that writ, under circumstances very similar to those under which the modifications of the restraining order had been· previously made: That the Washington Railway Company, known as the "Eckington & Soldiers' Home Railway Company," were in immediate and pressing need of certain elements, more than 1j 500 in number, of the storage batteries which were in use, or had been in use, upon the cars of that company, and which the complainants had been and were unable to furnish, their type of battery being somewhat different in structure; that, unless the said elements were furnished immediately, the operation of the railroad must cease, because by the charter of that railroad company neither horses nor the overhead electric system could be used for motive power. After the arguments of counsel, and· a. fulJ. presentation of the necessities and demands which called for and. seemed to justify a modification of the preliminary injunction,and chiefiy for the two reasons that the citizens of Washington would suffer the greatest possible inconvenience from the stoppage of the road, and the court of appeals had not yet affirmed the decree of the lower court, the injunction was modified so as to permit the defendant. to supply, either from stock on hand, or by manufacturing, "1,584 p<l:litive piles for batteries, of a type known as '23 M. G.,' to the Eckington & Soldiers' Home Railway Company of Washington, D. C., in renewal of positive piles heretofore furnished to said railway company by the said Accumulator Company; upon the express condition, however, that the said Accumulator Company do pay, or cause to be paid, into this court, before the delivery of said piles or any of them, a sum of money in cash equal to a royalty of three cents per pound of said piles,"-which money was to be held for the benefit of the complainants. Upon the modification of the restraining order and of the prelim. inary injunction, the storage batteries were furnished under the contracts which the defendant company had with the respective railway companies, and the conditions upon which the modifications were made fu:lly complied with by it. The complainants now allege that the defendant corporation, or its officers or agents, have knowingly and willfully violated the restraining order and the writ of injunction, and have done acts which they were restrained and prohibited from doing, willfully, and in express disregard of the order of this court. The acts complained of, and of which it is alleged the defendant corporation has been consist, generally speaking, in its continued general supervision of the preparat.ion, use, and operation of the storage batteries as furnished by it to the Eckington & Soldiers' Home Railway Company, both in respect to the installation of the said batteries, as well as their operation after the installation; and they insist that by the very language of the injunction, as well as of the restraining order, the defendant was prohibited from· directly or indirectly making, using, preparing, selling, or disposing of any secondary or batteries to anyone; that the modification simply
808
FEDERAL REPORTER,
permitted the defendant to sell or furnish, and did not .permit it to use ·or to supervise the use, yet this use and this supervision of use wereiacts Qtwhich the defendant was admittedly guilty. . Beyond ,question, if the restraining order and. the preliIninary injunction are to be construed strictly, and the respective modifications ooll$truedwith equal strictness, the defendant may be said to have been. a technical violation of both. It is not disputed that the defendant's and servants have supervised the preparation, installation, and operation of the storage batteries furnished to the railway company mentioned; but under the circumstances of the case, as presented to the court. it is not conceived that the modification of the injunction should be so strictJy and literally construed as to limit it &$ contended. At the time of the application for the several modifications, there was presented to the court for inspection the original contract between the Eckington Railway Company and the defendant. .By that contract the defendant was to equip a certain number of·tars·with storage batteries sufficient to operate them for a given distance at a certain rate of speed. The electrical energy with which said batteries were to be charged was to be furnished, and the conductors and motormen upon the cars were to be employed and paid, by the railway company; but the defendant company was to supervise the operation of the electrical equipment· to be supplied by it for aperioonot exceeding three years from the date of the contract,· Janual'Y 23, 1891; and, that it might efficiently perform this part of the contract, it was to furnish and pay the salary of a supervising electrician or superintendent, who should have the general charge and direction of the operation and use of the respective storage bAtteries, and whose orders as to the use and operation of the bat· teries were to be fully obeyed by the employes of the railway company. There were also provisions in the contract which raised a question as to the title to the storage batteries furnished,-whether it passed to the railway company, or was retained for a specified time by the defendant company. Now, it was after the inspection and consideration of this contract by the court, and for the reasons, inter alia, that.the continued operation of the street railway depended upon the immediate performance of it by the defendant company, that the several modifications in the enjoining order and writ of injunction were made. Those modifications were intended to give to the defendant company the right to furnish the infringing storage batteries to the Eckington Railway Company under the contract in question, and upon the exnress condition that the satisfaction of all pecuniary damages which the complainants might show themselves to be entitled to thereafter, arising from the furnishing of said batteries in question, should be first provided for. The application to the court Was for permission to furnish storage batteries under the contract in the case. The contract was exhibited to the court to advise the court of its terms. The only inference to be drawn was that the batteries, when furnished, were to be used in compliance with and under the conditions of that contract. It was so understood by the court at the time the. modification was made. While, therefore, the words in which the modification was made apparently limit the privilege of the
BRUSH ELECTRIC CO. V. ACCUMULATOR CO.
SOl)
defendant corporation to the furnishing of the storage batteries solely, it was intended by the court, and should have been understood, that these batteries, when furnished, were to be used under the conditions of and inthe way stipulated by the contract. The modification meant, if it meant anything at all, that the defendant corporation could furnish the needed elements of the batteries to the Eckington Company, in a limited number, to be installed upon the cars of tlw Eckington Company for motive power, and to be used and operated under the terms and conditions of the contract, in compliance with which the defendant company was permitted to furnish them. No other construction to be put upon the action of the court. Simply to permit the defendant corporation to supply the Company with batteries would have carried with it no benefit to the public, whose interests were being considered by the court; for the operation of the cars of the Eckington Company by those storage batteries when furnished depended, t{) a certain extent at least, upon the supervision of their use and operation by the elec' trical supervisor furnished by the defendant company. It is no answer to this to assert that, if the defendant company had not supplied the supervisor necessary for the successful operation of the storage battery,the Company would have been driven to obtain that supervision and assistance in the operation of their road from the complainants, at a pecuniary benefit to said complainants. Non constat that the complainants would have been willing to supervise the defendant's batteries. Had they refused, the inconvenience to the public, which the court was endeavoring to lessen, would have been intensified. The fair construction of the modification is that by it the defendant company was permitted to furnish the storage batteries in question to the Ecldngton Company under the terms and conditions of the contract which it exhibited in court with that company. As the acts alleged by the complainants as act<; violative of the injunction are onlv such as the contract called for on the part of the defendant company, it is neither fair nor equitable to adjudge it guilty of willfully violating the injunction or enjoining order by their performance. Besides, it is perfectly clear that the injury arising from the modification, and sustained by the complainants, springs out of the permbsion to furnish the storage batteries. The complainants' letters patent cover and protect the construction of a certain storage battery. No one has the to make a similar, or substantially the same, battery as that protected by those letters patent. To make and sell and dispose of such similar. or substantially similar, battery is a violation of the complainants' Simply to supervise and attend to the operation of such storage battery, after the court has permitted it to be installed, inflicts upon the complainants no additional pecuniary damage. Hence they have no special ground for complaints in the premises. The motion for attachment is denied.
810
FEDERALREl'ORTER,
vol. 58.
AMERICAN PIN CO. v. SCHEUER et al, (bl':'Cuit Court, S. D. New York. January 14, PATENTS
Lettel'lJ piLtent No. 300,744, issued June 17, 1884, to Elbert A. Whittelsey, for l1Illnmoovement in a locking device for shawl straps, having endless bands wound upon a handle, disclosed patentable invention.
Fda' INVENTIONS- VALIDITY-NOVELTY.
In Equity; Bill by the Am.eri,can Pin Company against Isaac Scheuer and others for infringment of a patent. Decree for complain· ant. Hubbard, fQr plaintiff. Louis O. Raegener, for defendants. WHEE:LER, District Judge. This suit is brought upon patent No. 300,744, Mted June 17, 1884, ap.d'granted to Elbert A. Whittelsey, fQr an improvement in shawl straps of endless bands wound upon a handle, locking the handle to hold the straps bya slide with an angular.. illQt .moving against and grasping 'aJ;I., angular part of the spindle. .r,rhe handles had been held by ratcheUi before, and similar slides had been used to hold spindles of locks before. The principal objection' tQthe patent is want of invention in putting such a slide to this u!3e. But the parts with which it is made to work here are quite different from those of a lock, and to cOntrive it into this place for this purpose was something more than merely putting it to a new use, and ,required more than the ordinary skill of a workman. The defendants'. slide does the same thing in about the same way. Let a decree be entered for the plaintiff. NEW YORK BELTING & PACKING CO. v. NEW JERSEY CAR SPRING & RUBJ3ER CO. (Clr':uit Court of AppeiLIs, Second. Ch'cuit. December 6, 1892.) 1. DESIGN PATENTS-LIMITATION OF CLAIM-PRIOR ART-RUBBER MATS. Design patent No. 11,208, issued March 27, 1879, to George Woffenden, for a de!"1lgn for rubber mats in which. kaleidoscopic, mosaic, and moire effects arp. produced by a series of parallel con'Ugations, which in different sections of thlil mat make angles with,. or are deflected to meet, the corrugations of other sections, must, iIi view of the prior state of the art, as shown espe<:1ally by the English patent to Fanshawe and Jaeques of November 29, '1860, No. 2,935, 'be limited to the specific design shown in the drawing. 48 Fed. Rep. 556, atnrmed.
t.
Although the patentee in his specifications says that the square mat . exhibited in the drawing might be made "oblong or other desired shape," the patent Is not infringed by an oblong mat having llluch the same generm appearance as the mat of the patent, but in whlch the exact arrangement is such as would result from an attempt to adapt the patentee's design to an ,p!;llongmat, .48 Fed. Rep. 556, reversed.
SAME-INFRINGEMENT.
Appeal from the Circuit Court of the United States for the Southern District of New York. In Equity. Bill by the New York Belting & Packing Company against the New Jersey Car Spring & Rubber Compan,}' for infringe-