BUTEO V. MOLL.
909,
BUTEO
and another
'V. MOLL.
(Oircuit Court, 8. D. New York. February 18,1881.) 1. LETTERs PATENT-iMPROVEMENT IN CORDS FOR WRAPPING THREAD.
Heissued letters patent No. 6,751, granted November 16,1875, to Hugo Butro, for an improvement in cords' fot wrapping thread, are not infringed by the device of Aug1\St :Moll. 2. SAME-ExTENT OF THE PATENT.
In view of arrangements already In the Tel"I'Ine mn!!t he lImited to cover. ing sections strictly attached and requirW& cuttihg,w dlltal:J..Illiem.
J. P. Fitch, for plaintiff.
S. Greenbaum, for defendant. , C/J. This suit is brought on reissued letters patent No. 6,751, granted to Hugo Butto, No"ember 16, 1875, for an "improvement in cords for wrapping thread," the original patent, No. 130,672, having been granted to bim August 20, 1872, and, reissued. to him, as No. 5,725, January 6,1874. The following is the specification of reissue No. 6,751, including what is outside of brackets and what isinside of brackets, and omitting what; iEi in italics: BLATCHFORD,
"This invention relates to a new form for holding [and a new method of putting up] braided or othedhreads, and [it1 consists in [pasteb<lard. card, or other equivalent material, notchedJ notching a card at the ends [so as} to produce visible and accurate subdivisions of the skeins wound thereon; {and also in perforating or equivalently weakening or cutting such card lengthwise to allow convenient separation of anyone or more of the sections of card with the thread or skein upon it.] This is for the purpose of keeping the skeins so fully separated that they cannot become entangled,'and that they can-each skein containing a certain length of thread-be lseparated]· cut apa1't with their sections of card, [so as1 to furnish a desired measure of thread or braid. A, in the drawing, represents the card [or form] around which the braided or plain thread, cord, or tape is wound lengthwise. The ends of this card are notched, as at a a, in figure I, there being ll.S many notches as there are to be skeins or separate subdivisions wound about the card. In this manner the card is subdivided into a series of nanow sections, b b, [each] all containing [a cettain] equal [quantity] qnantitiesof the fabric; the projecting prongs, d d, between the recesses, a, keeping the sever3J. skeins properly separated. The card may be perforated [or otherwise eqUivalently weakened or cut] length wise [along a line or lines, indicated by the broken line or lines in figure 1 of the drawings, so as] to allow convenient [separation] detachment of anyone or more of the [skeins with their sections of card, b,] sections, b, with the cord on it, so that, in retail trade, the skeins can be disposed of separately without requiring their unwinding and special measurement. The [fabric is] skeins on the card may be wound [in skeins of the desired length1 upon [each of] the sections, b, [of the card, as described, and all or a part of the skeins I'emain connected together] so as to constitute [an
010
FEDERAL REPORTER.
unbroken length] one continuous thread, cord, or tape, or l else tbe skeins upon the card that is simply perforated, or otherwise equivalently weakened between the said sections, may be disconnected, so as to formJ they may be independent [and ]of each other; i. e., separate pieces lof the fabric upon] on the several sections, b. Thus put up, em any pattern card, the fabric, which may consistlinJ of woven, braided, or twisted cord, tape, ribbon, braid, 01' thread, [Wire, or any other narrow articles measured by the yard,] cannot tangle [tWist or] nM' soil, neither in the hands of the actual consumer, merchant,ormanufacturer. Under the old style of putting up such goods they were very apt to become entangled, and, as they had to be separately measured in dealing out certain lengths, [they] their delicate tints were often soiled [and] or they were twisted out of shape."
Reading in the what is outside of brackets and what is in italics, and omitting what is inside of brackets, we have the speci. fication of the original patent. The claims of the reissue are as follows: "(1) The device for holding thread, consisting of card-board notched at the ends, so as to separate said threads into two or more sootions, or skeins, as set forth; (2) the device for holding thread, consisting of card-board, notched at the ends, and perforated lengthwise, so as to be formed into sections, to allow of convenient separation of the sections and skeins of thread. as and for the purpose set forth ;. (3) the improved method described of putting up thread, ot any narrow fabric, in skeins, on card·board notched at the ends, by winding the fabric continuously from one notched section of the card-board to another, as and 'for the purpose set forth." ,
';rhe originl.t1 patent had only one claim, as follows: " The device for holding thread, formed of a card, A, notched at the ends. so 'as to be formed into sections, b b, as set forth,"
The putting up of the skeins by winding the fabric continuously from one section to another is found in, original specification. So, also, is the perforation of the card lengthwise. But the original does not suggest that the sections can be other than parts of the same continuous card, attached together only because and as parts of the Bame unit, and requiring detachment by the cutting or physical severing of the body of such unit in order to become sections. The reissue omits the cutting apart and detaching, and the expression "a card." The defendant's arrangement, which is alleged to infringe, consists of detached pieces of notched card"board, with the fabric wound continuously from one to another, and then the pieces laid side by side, two pieces of loose card-board laid crosswise of the first-named pieces between their upper .faces and the lower sides of the wOlmd fabric, so that the whole is capable of being taken up and moved
SUTRO V. MOLL.
911
together, by taking hold of any ,part of it, as ,the patented strueture can be. The result is attained of separating the threads into more skeins than one, and of allowing of the convenient separation of the skeins, and there is the continuous winding. ,But there is nothing whieh ean be called "a card" in the sense of the plaintiffs' card,and in the sense of the description in the original specification, nor are there any sections of a card. It is shown by the testimony of McCauley that it was old to put up cord by winding a given length on a notched piece of board, and then eontinuing the cord to another notched piece of board, and winding an equal length of the cord on that, and so on to the nllmber of a dozen; and that he had known of this being done for at least 20 years iu New York, with Butler &, Pitkin, 356 Broadway, who subsequently became Butler, Pitkin & Co., 476 Broadway. It is, shown by the testimony of John E. Read, a member of the firm of Howard, Sanger & Co., of New York, dealers in fancy goods, and who has been in that business for 28 years continuously, that for over 20 years past he has known of fishing lines:I>,ut up on notched boards and con. tinued from one board to another. The testimony of these two wit· nesses was objected to on the record as "not within the pleadings." What this was intended to mean is not further stated in the record. It is too indefinite to be regarded. In argument· it is contended that the testimony of McCauley and that of Read are inadmissible, because knowledge by them is not set up in the answer. But the answer sets up that the patented invention was befOre known by Edwin 1). Butler, of "Butler & Pitkin, in business at No. 356 Broadway, New York city," and by "Howard & Sanger, in business at No. Broadway, New York city;" and that)),le patented method of having' one continuous thread in skeins of two and more, sl1bstantially as, described in the reissue, was known to the following persons, and at the following times and pla.ces, to-wit: "Butler, Pitkin & Co., 356 Broad. way, New York city, more than 10 years past; Howard, Sanger & Co., 462 Broadway, New York 'city, more than 10 years past." The statute (Rev. St. § 4920) does not require the names of wit· nesses to be given, but only the na.mes of those who knew of the thing, and where they can be found, and where and by whom the thing was used. Aside from the want of point in the objection stated on the record, the notice in the an8werwas,sufficient to admit the testimony of the two witnesses. The testimony of McCauley was also objected to, on the record, as and that of Read as irrelevant. ffhe testimony was material and relevant as tending to show'that tid
912
defendant's structure existed before the patented invention, and therefore that the defendant's structure was not the same as the plaintiffs'. In this view no notice in the answer was necessary as to names, as the testimony was admissible under the issue of noninfringement. Nothing is shown to invalidate the plaintiff's reissue, properly construed; but, in view of the original patent, the reissue cannot be so construed as to cover the defendant's device. Moreover, the existence of the devices testified to by McCauley and Read requires that the reissue shall be limited to covering sections striotly attached and requiring cutting to detach them; and, in view of such limitation, the defendant has done 'no more than was done before. Putting in the cross-pieces to keep the detaohed pieoes in position is not within the patented invention. The bill is dismissed, with costs.
COLLIGN'ON
and others v.
HUES.
'Oircuit Oowrt, N. D. New York. May 7, 1881.)
1.
LETTERS PATENT-FOLDING CHAIRS-INFRINGEMENT.
Letters patent No. 96,778, for an improvement in folding chairs, granted November 16,1869, to Claudius O. and Nicholas Collignon, are infringed, as to claim 1, by chairs made under and in accordance with letters patent No. 221,062, granted to the defendant, October 28, 1879. S. INFRINGEMENT-FORl\l:AL CHANGES.
Where the same result is effected by corresponding parts and by an identity in the mode of operation, mere formal changes will not avoid infringement. 8. PRELIMINARY INJUNCTION-DELAY. '
Where the patentee gave prompt notice to an infringer to cease infringing, and, in the period of ,two years intervening between the time when the fact of the infringement first became known to him and the date of the commencement of legal proceedings, repeated the notice three times, and Where, during this time, the business engagements of the patentee were many and pressing, and no affirmative encouragement was eYer given by him to the infringer, held, that the right to a preliminary injunction, in a case utherwise plain, will not be affected by the delay.
Blrrir, Snow iX Rudd, for plaintiff. R. H. Duell, for defendant. BLATCHFORD, C. J. This is a motion for a preliminary injunction, founded on letters patent No. 96,778, granted November 16, 1869, (erroneously stated in the bill as October ] 6, 1879,) to Nicholas Collignon and Claudius O. Collignon, for an "improvement in folding chairs." The specification says: