816
J'JllDEBAL BEPOBTDB.
WOOSTER 'V. BLA.KE
and others. June 20,1881.) .
(Circuit Court, 8. D. NeuJ YQrk. 1. EQUITY PBACTJCJll-RULE 34.
Rule 34 of the rules ()f practice prescribed by the supreme court for the courts of equity of the United States, requires that on ruling a plea the defendant shall be allowed to answer; that leave must be given to it.
III Equity. F. H. Betts, for complainant. W. H. L. Lee, for pefendants. BLATCHFORD, C. J. The company is willing to have its plea That,is all the, plaintiff ca;n ask. But 34 requires that on overruling a plea the deferiq.a:nt shall be allowed to answer; that leave must be given to, it. A preliminary injunction will be issued against ,the other defendants on the claims of the Robjohn patent, which was adjudicated upon in the decision; but if such an injunction is asked for against the company, it must be moved for on papers and notice. An order will be settled on notice.
CLARK 'V. BEECHER MANUF'a Co.
and another.
(Oircuit Court, D. Connecticut. 1. PATENT
February 15, 1881.) 8HACKLEs-h-
No. 66,130-BLANIiS ,
FOR CARRIAGE-THILL
1I'1UN6EMENT.
Letters patent No. 66,130, granted James B. Clark, Jttne 25,1867. for improvement in b18nks for 'carriage-thill shackles, held, not infringed by devices manufactured under letters patent No. 106,225. granted August 9, 1870, to Willis B. Smith, for dies for forging carriage shackle blanks. Complainant's invention, consisting of blanks for earr:a,2;e-thUl shackles and dies for making same, whereby the shackle is primarily formed with a curve on its central body portion, so that the SUbsequent straightening of the central portion and finishing of the blank forcelJ the surplus metal to the corners to fill up the deficiency in them and make them sharply-defined right angles, held, not infringed by defend-
CLARK V. BEEOHER HANUF'a 00.
811
ant's dence, in which the body of the blank is primarily pressed into an angular shape, with its arms extending by sharply-defined obtuse angles, whereby the subsequent straightening and finishing the blank but forces the angles further apart, and puslies any Rurplus metal caused by changing the obtuse into right angles at the corners wwards its center.
In Equity. Oharles E. Mitchell, for plaintiff. Orville R. Platt, for'defendant. SHIPMAN, D. J. This is a bill in equity based upon the alleged infringement of letters patent granted to the plaintiff on June 25,1867, for an impro\'"ement in,blanks for carriage' thill-shaokles. The important question in the case is that of infringement. "The invElhtionis for an improvement in the manufacture of the article known. to the trade a.s 'carriage shackles,' or 'thilloouplings;' that is to say; in'the device by which the pole or thills of a carriage are hinged to the axle. The invention' relates particularly to that class of shackles which' consists of a horizontal plate,with a. pair of vertical ears rising therefrom; between whioh the eye of the thill iron is hinged. The flat or body part of the article is forged with a projection at each side, what is commonly called the' clip,' by which the article is secured to the axle," It is necessary, in order to make a salable article, that the corners of the back or flat portion of the shackle shall be sharp and well defined. If the ears of the blank are simply bent from the body at right angles, the outer corners will be rounded by means of this Before the plaintiff's invention two different methods of forming the blank were used. One was to prepare the blank with projections of metal at the points where the angles were to be formed, so that when the bending took place' this sur· plus would fill out the corners with sufficient material to make a sharp right angle. This method is shown in the patent to James P. Thorp of May 1, 1860. The second plan was to form both the angles in the blank and the back before the bending took place, and then to straighten the arms with:. out changing the shape of the back or of the angles. This v.7,no.9-52
818
: I'EDEMLl\EPORTEB.
plan is shown in the patent to L. Burns of June 11,'1867. The plaintiff's invention :was for the purpose of avoiding the troublesome projections of the Thorp patent;'which made the bendipg a labm:ioUBwork. , The cen.tral part of the body of the Clark blank was curved, and the obliquely bent arms of the blank were also rounded where they joined the central curved body, the curve of these arms being the reverse of the curve of the body. When this was put into a bending held by clamping mechanism, the die,in which the arms blow of the ha:mmer upon. the curved back "upset" the plus metal in the .curvedpodion, forcing it right and left towards the rounded corners, so as to fill up any,deficiency of metal which migllt i :be caused ,by bending the arms, andtq , right angles. The inve:o#on was ,0. form blank body, whereby surplus metal was vided by the process of "upsetting" for the formation of sharp angles at the poiIl:ts where rounded or curved or alent formed arms join the central portion of the body, and are bent into tr,e ears of the shackle. The specification says: "The blank, which is made in the shape of across in the usual manneJ.:, is placed upon the lower die, A, and the, up'Per dIe, B, is then forced down upon it, whereby the arms, {la; the blank are bent inbp an, oblique direction. and the body; is curved, as shown in the figure. The portion of the blanlr where the arms join, the b()dy is rounded, as shown, on both the inside as welJ asop the outsid.,e; the straightening of the body of the shackle pushing out sufl1,cient material for,forming the sharp corners without having. any hindersome Or imllll;actical projections. The dies are formed so as to give to the blank the reqaired shape." , The claip:lJ;l',are : "(1) The carriage shlloftshackle-blank, so formed between. dies that the body,b, ,of the blank is curved, llubstantiallyas:.:\le);ein shown and described ; (2) the dies, A the said when so construoted and and .fot, arranged as tQ form the rounded corners and the curVed body .said blank, substantially as herein shown and de:scribed.," Julius B. Savage, of Southington, was a licensee underthis
CLARKV. BEBCHU MANlJF'a co.
819
patent, and is 8.pparetltly the only person who has made the blanks shown in the drawings at his shop. Changes were graduallymade in the shape 6ftheblank-First, by enlarging the upper die'at the junction of the arms with the body, so as to furnish more metal at that point; afterwards by straightening the arms and making their angles more definite, until finally the arms were in the-same plane with each other, and the angles were sharply defined. Subsequently, Willis B. Smith, a foreman in Savage's shop, obtained a patent for the blank which the defendant manufactures. The body or back of the blank is not straight; the straight part of the body is connected with· the arms by two angular bends; the arms are in the 'Same horizontal plane with each other and are parallel with the body; and the obtuse angles, at their junction with the body, are defined. The defendants' blank has neither rounded corners nor a curved body. The .ba.ck is to be straightened and the arms are to be bent in a bending die in the same manner thattbeseoperations are performed upon the plaintiff's blank. It thus appears that the shape of the two blanks is different. One consists of a series of curves'; the other consists of a series of angles. The question of' infringement does not depend" upon the form: of the respective articles. If the straightening of the angularly-bent back of the defendants' blankpusbes surplus metal towards the corners, so that, by mea.ns of this surplus, sharp instead of rounded angles are formed when the arrosare bent;tben the modification of shape is immaterial. If, on the other hand, the angles are already formed of such shape -and so definitely that no surplus material is needed, Or is furnished to the angles, but the straightening of the back merely forces existing angles further apart without a displacement of the material at the angles, then the two blanks are constructed upon a different principle. The plaintiff insists that the defendants' back is upset so as to "push out" metal into the corners, whereby full and square angles are made as in the Clark device. The defend.
, FJilDKRAL BEPOBTEll.
ants' position is that when the back of its blank is straightened, and the arms are bent, no stock is forced out to fill the angles, because they are already formed; but that these "defined angles have been forced from each other by driving surplus metal between them." It is agreM that the angles, after the arms are bent, are one-fourth of an inch further apart that they were before the bending. The theory of the defendant, as stated by its expert, is this: "There can be no pushing out of the metal towa,rds the angle, because there is already as much more metal in the vicinity of the angle than is required there, as the angle is greater than a right angle. Therefore, instead of the surplus metal being pu,shed towards the angle, it be pushed away from the angle and towards the center;. it ':lannot be pushed towards the angle, because the angle,having already too m\lch, metal near it, more cannot be.,pulilhed there. ' The bringing the upper portion ears int(l a straight line contracts that p<i>rtion and forces the metal down into,the center,and !loas tbe nec ssary elongation of the. back between t,he tWQ previoul'llyforlIledsbarp ; I am of Qpipiou ;that the which is by the, testitl\ony and the thap. the other, and that in, the defendllnts' blanks, therE,l,is 'stantial upsetting of so as. to fOJ:¥J:sharp angles. The surplus metal fs used in the back, aIld,not in the angles. It follows that infringement has not been proved, and that the bill s40uld be
BLAKE V. H'NAB .. IIANLAN-IJANtJJr'a 00.
821 Co. and
BLAKE
and others v. THE MQNAB & another. SAME
HANLAN MANUlI"a
v.
EATON
arid others. February 15, 1881.)
(Circuit Court, S. D. New York.
In Equity. G. F. Blake, for, plaintiffs
, C. J. This suit, as two patents. One is a re-issue, No. William S. Carr, as inventor, June 1.2, for "iqi!n;ovements ill water the original patent paving been granted to him Au"gust 5, 1856, and the re-issue'having been for seven years from August 5, 11:170. Infringement of the third claim only of the re-issue is alleged. The specIDcll.tion of the re-issue says: BLATCHFORD,
S; S. Boyd, for defendants.
" The nature of my said invention consists in a peculiar construction of cock, which is opened by the motion of the seat of the water-closet, and .. allows but little water to run into the pan of the closet until the weight is removed from the seat, when the cock, gradually closing of itself, allows the water to run for a limited and regulated time, sufficient to wash out the basin."
The third claim of the re-issue is as follows: "In a valve for water-closets, a cup-leather for controlling the motion of said valve in closing gradually, substantially as specified i said cupleather moving freely in one direction, and closing against the containing cylinder in the other direction, and the leakage of water in said cylinder allowing the movement of said cup-leather, as set forth."