SOHOERKEN
V. SWIFT & OOURTNEY & BEEOHER 00.
469
adjudication is not equivalent to one rendered upon final hearing. ' The reliance of t;he plaintiff for an injunction is upon the acquiescence of the public in the validity of the patent. It bas been in existence about three years, and during that time the patentee says he has sold over 600,000 pairs of corsets made in conformity with the patent's description of the invention, and that no infringements have taken place except such as have been abandoned by agreement. The life of the patent ,4as not been long, but the sales have 'oertainly been very and indicate that the article is very popula1J,.and.it seems that its success would naturally have invited imitators. But in the absence of an adjud,icatlon ftill of the art and final"hea.r,ing, I am veryJoth togrl'mt ian because, although this patent may have heretofore' been respected, out of the multiof which have been wQrn: it tha.tit should hereafter, be ascertained that .8omemanufa.cturer hadumade and sold a style\fhi.ch be,in my an unwise: temporary, i'n5\illotion in this case. " , , ' " "", The motion is denied.
t SOHOERKEN .'27. THE SWIVT
((]ircuit
Court, S;D. New YO'I'M.
April 28, 1881.)
Courts of the United States take judicial. notice of foreign nations, and their seals of state, but not of their inferi\lr officers or departments and their seals. 2. FOHEtGN PA'1'EN'r-SEcTION 893, REv. ST., CONSTRUED-AUTHENTICA.nON OJ/' FOREIGN PATlllNT-Al1'1'ItE:NTICATION OJ/' FRENCH !,>ATENT.
Section 892, Rev. St., provides that copies from the United States patent-office, certified by the commissioner of patents, shall be evidence in all cases where the originals would be evidence; and section 893,. Rev. St., provides that copies of foreign patents, authen·
4:70
FEDEBAL BEMBTER.
ticated as in section 892, shall be prima facie evidence of the granting thereof, and their contents, held, that a copy of a Frenc.h patent, certified by the. director of the national conservatory of arts a,nd manufactures, under its seal, and verified by· the ministers of . agriculture and commerce, and of foreign affairs, under their seals, but not under the great seal of France, was properly authenticated aiLd admissihle in evidence, S. SAME-FRENCH PATENT-PUBLIC PATENT-SECRET PATENT-" PATENTED" CONSTRUED,
There are patents in France which may, for public and special reasons, be kept secret. The expression" patented," in the statute, would 'seem, from the signification of the word, to mean only inventions laid open to the public and protected to the inventors, and such is the construction which it has hitherto received. 4. SAME-OPEN PATENT- SECRET PATENT PUBLIC PATENT ONLY IN CONDITION TO BE C E R T I F I E D . ,
It being objected that it did not appear from the copy foreign patent, introduced to show prior invention, whether it was an open patent or secret one, held, that since only public records are provable by copy certified merely, and as the authorities of a foreign government would not have a patent in!1 condition to be certified if it was lecret, the fact that it is certified shows it to 'be what could be certified, and that the invention described by it was, in the sense of the patentlaw, patented by the original patent of the copy produced. 6. PATENT No. 68,l04-IJllPRoVltD MATCH-Box, ' . Patent No. 63,104, dated March 19, 1867, Il:n htiproved match-boX, heZd,intJlllid; by reason of prior French patent No. 52,907, dated }'ebruary 6, 1862, for the same invention.
In Equity. Arthur v. Briesen, for plaintiff. Henry E. Davies, Jr., for defendant. WHEELER, D. J. This suit is brought upon letters patent of the United States No. 68,104, dated March'19, 1867,' and issued to the orator, for a Among the defences set up in the answer is one that the same invention had been previously patented in letters patent of France No. 52,907, dated February 6, 1862, and a certificate of addition thereto, dated April 29, and issued to one Caussemille. The orator's invention is not shown earlier than patent. The ddendant has filed in evidence what purports to be a copy of the patent set up· in the answer, certified from France. The orator objects to this copy as evidence, for want of sufficient autllentication, and insists that, if admissi-
BCBOERKEN V. SWIFT & COURTNEY & BEECHER
ble in evidence at all, it does not show such an opel)..puhlic patent as will defeat a patent of the United States, and it does not purport to be a patent for the same invention. i' .Courts of this country take judicial notice of all other nations, and their seals of state, but not of their inferior departments and their officers and seals. The copy filed in ·evidence is certified by the director of the Conservatoire National des Arts et Metiers of France, under the of that department, verified by the minister of agriculture and commerce, and the minister of foreign affairs, under their seals, .but not by the great seal of France. This would not be sufi]. cient proof of the copy if the common law was togQvem. Ohurch v. Hu.bbart, 2 Cranch, 187. But the difficulties of making proof of foreign as well as of domestic patents have been lessened by statute. Copies of any records,: books, 01' papers belonging to the and of letters patent, authenticated by the seal, and cel'tified by the commissioner or acting commissioner, are made evidence where the originaJs would be evidence. Rev. St. §. 892. And "copies of the specifications and drawings of the foreign letters patent, ·certified as provided in the preceding section, shall be prima facie evidence afthe fact of the granting ofsuch letters patand of the date and contents thereof." Rev. St. § 893.. This department and its directors, in France, correspond to the patent-office and its commissioner in the United States, as is understood, and the minister of agriculture and commerce to the secretary of the interior. So that this copy ·{Jomes from the proper source, is authenticateq. in the proper manner, and is admissible. in evidence. under the statute. De' Florez v. Raynolds, 17 BIll-tchf. 436. This defence, .ars formulated in the Revised Statutes, is that the invention shall have been patented before the supposed invention by the patentee. Section 4920, par. 3. There arEl patents in Fra,nce which may,Jor public andspecialreasons, be kept secret; . The expression "patented," in would seem, from the significatio:t;l of the word, to meah only. inventions laid open to the public .to,the ventors; and Buch appears to be the constr:Iction whicn the
472
FEDERAL REPORTER.
expression has heretofore received. There is nothing to show whether this is an open patent or one made secret, except what can be gathered from the copy itself, and the fact of its production. Only public records are provable by copy certified merely, and these departments of the government of France would not have the patent in condition to certify by copy if it was secret, and not public. So the fact that it is certified shows it to be what could be certified, and that th'e invention described by it was, in the sense of the patent law, patented by the original patent of the copy produced. The patent is prior to the orator's invention, and the invention patented by it is to be compared with the orator's. The orator states in his specification that the nature of his inventions "consists in so attaching an elastic band or strap to the upper end of an outer box, and to the hinged part of the lid of an inner box, sliding in the outer one, that when the inner box is drawn out from the outer one the lid of the former shall, as soon as it has passed beyond the upper side of the outer box, be elevated by means of the stretching of the elastic band, and thus open the inner box." The elastic band is further described as attached to the hinged lid of the inner box "a little forward" of the hinge, and a loop or knob on the outer end of the inner box, to take hold of, is shown. The operation is described to be that when the inner box is pulled out the band is stretched, and as soon as pulled out beyond the hinge the lid is raised by the band "acting as it were on a lever near its pivot," and the box is kept open; and, on pressing down the lid, the ac· tion of the elastic band will draw the inner box back to its position in the outer box. The claim is for "connecting the hinged part of the cover of an inner sliding box with the back of an outer case, by means of an elastic band or strap, substantially as and for the purpose described." The patent of Caussemille shows an outer box open at one end, with an inuer box fitting and sliding into it, having a hinged lid opening upward, and an elastic band fastened at one end to the backside of the outer box, and at the other end to the hinged lid, and a tongu) at the outer end of the
SCBOERKEN 'V. SWIFT 41; COURTNE'i' 41; BEECHER CO.
inner box ,to. take hold of to pull it out. The description in that patent and the first a.ddition is of, structures anq their operations so much like those of the orator, that, on the argument, they were conceded to be the same, except it was claimed that in Caussemille's the hinged lid was to be raised by the fingers when the box was drawn out, inst!lad of by the elastic band; therefore, this difference only needs to be attended to. This addition is accompanied by drawings, in which the closed end of the outer box is designated by the. letter a, the inner box by b, the outer box by c, the elastic band by d, the hinged lid by 6, the tongue on the box by f, and, in one figure, the position of the hinged lid, with the inner box withdrawn and the lid fully open, is shown in red ink. The copy is in the French language, and in this part proceeds: "La tirette, d, est fit tee d'une part au fond de la boite, c, et d'autrepart, au couvercle mobile, e, du tiroir, b, que contient les allumettes. Une Ian. guette, I, sert a faire sortir Ie tiroir hors de la boite'lorsqu' ou vent pren. dre des allamettes. En tirant Ie tiroir, b, au moyen de, la 'languette, I, Ie couvarcle a brisure, e, tend la tirette de caoutchouc, d,et prend la position d'anet indignee al'encre rouge."
Translated, this reads: The spring, d, is fitted at one extremity to the end, a, of the box, c,and at the other to the movable cover, e, of the drawer or box, b, which contains the matches. The tongue, I, serves to pull the drawer out of the box when matches are wanted. In pulling out the drawer by means of the tongue, I, the movable cover, 6, stretches the India-rubber spring, d, and takes the fixed position indicated by the red ink.
Here is no indication that the movable cover is raised by the fingers of the person using the box, and in that way inner opened. When the cover, in being drawn out with box, stretches the elastic band, the band resists the force by pulling upon the lid; and, as the box continues to move out. ward, the lid, when it has passed beyond the hinge, is pulled upward and opened. This is done precisely as the hinged lid of the plaintiff's box is opened. The place of fastening the band to the lid is not indicated, but it must be "a little forward" of the hinge in order to be fastened to the lid itself, for it could not well be fastened to the hinge between the two parts of the lid, and, besides, that would not answer the de.
4:"14
FEDERAL REPORTER. " ,
and it act&, "as it were; on a lever near its pivot.''' Here is the connect,irig the hinged part of the cover of an inrret sliding bex' with the back of an outer case by means of an elastic band or strap, substantially as claimed in the plaintiff's patent. . In 1868 Caussemille took out a fifth certificate of additions to this' same patent. In that addition an employment of the rubber. gpnng, to open the inner box as that is drawn ont, is described, which is claimed by the orator to be the same as his invention, and to show that Caussemille did not llnderstand and intend to describe it when he applied for and took his '·first certificate of addition. In that the rubber spring isde!lcribed as attached to the lid a little forward of the hinge,and to pass through the fitted part of the lid tightly, a little back of the hinge, into the inner box, and through the inner end of that box, and to be attached to the Closed end of the outer box, making practically two working parts of t4e spring,"",;"","one working cOllstantlybetween the movable and immovable.parts of the lid to .raise the mova.ble part whenever the inner box was drawn out past the cover of the outer box far enough so it could be raised, and the other to return the inner box into the outer when freed. In the plaintiff's patent and Caussemille's first addition, the spring passes wholly outside of the inner box, and the invention described in them is different from that described in the fifth addition. So the foundation of this argument fails, even if the argument would be sound. Let a decree be entered dismissing the bill of complaint, with costs.
· WOOD V; DOLBY.
WOOD
V; DOLBY and others. April 28, 1881.)
(Oircuit Oourt, 8. D. N6tI1 York.
i.
DESIGN PATENT-SECTION 4929, REv. ST., CoNSTRUED-" NEW AND IMPROVED" EQUIvALENT TO "NEW AND ORIGINAL."
Under section 4929, Rev. St., which provides that a patent may be granted for a n/l'lD and originaZ design, where a patent was grante<i for a new and improved design, the patent mentioning no prior design, held, that the term improlJed should be construed to mean a new and distinctive design, and improved as compared with others used; and, in connection with the term new, that it was original with the patentee. 2. SAME-ANTICIPA'l"ION.
Where a patent was for a design consisting of the representation of a bird upon a branch or twig, with various accessories, and the evidence showed several pre-existing bird designs, held, that the design was yet new and original, since none of the alleged anticipations were like itin appearance, either in outline or' detail. 3. SAME-SIMILARITY IN TERIAL DETAILS. AUTISTIC EFfECT-DIFFERENCES IN
IMMA-
Where the similarity in two designs is such that the differences between them are not appreciable by observing their artistic effect, such differences being merely in detail, are immaterial, and the designs will be considered as substantially the same. 4. BAME-APPEARANcE-ATTRAOTIVENESS.
The patent is for the appearance which the design adds to the article, making it desirable according to its attractiveness to those observing and wanting it, and it is the right to the exclusive use of this which is secured to the patentee.
In Equity. William Kemble Hall, for plaintiff. Worth Osgood, for defendants. WHEELER, D. J. This suit is brought for an alleged infringement of design patent No. 11,409, issued to the orator for jewelry settings, express.ed in the specification to be for a new and improved design for jewelry settings, consisting of a representation of a bird upon a branch or twig, with a leaf above the bird and a panel at the base of the twig, in white and gold colors, with a diamond upon the leaf and two diamonds upon the panel. The defences are that the patent for a new and improved design is not within the statute, section