The combination, substantially as described, of a spring, A, with the split portion B of a glove, for the purpose specified. In Field v. Comeau (17 O. G., 568) Judge Wheeler restricted this claim to the particular style of spring described in the specification and drawings. That decision is controlling. No broader construction can now be given to the patent. The question of infringement therefore alone remains to be considered. The complainant's spring is made of a single piece of wire, and is automatic and continuous in its operation. When the spring is in repose, the arms are together and overlap. When drawn apart, they will immediately fly back, if released. The defendant's device, on the contrary, is composed of two stiff arms pivoted at one end. A spring is riveted to one arm, which connects at its free end with a link fastened to the end of the other. When the arms are open, and by pressure upon them, the link is brought above the pivot, the spring acts, and the arms come together. At right angles the arms remain open and the spring does not begin to operate in closing them until they have been brought to an angle of about forty-five degrees. The points of difference between the two devices are many and radical. But the reasoning of the Comeau case seems conclusive upon this question also. The spring which was there held not to infringe is almost the exact counterpart of the defendant's spring. They differ only in minute and unimportant particulars. The one operates on a cam, the other on a link. With this exception they are alike. In speaking of the defendants' spring in that case the learned judge uses language which would be equally applicable here. He says: The form of the defendants' spring is different from the orator's, its mode of operation is different, and the result of its operation is somewhat different. It cannot be said to be the same as the orator's or to be substantially like the orator's. Each got the idea of closing the wrists of gloves by means of springs from others. The orator carries out the idea in his mode and the defendants in theirs, and as neither has control of anything but the particular mode, neither can justly say that the other uses his mode. The two cases cannot be successfully distinguished. There should be a decree for the defendants, with cost. [United States Circuit Court-Southern District of New York.] WESTON DYNAMO ELECTRIC MACHINE COMPANY v. ARNOUX ET AL. Decided April 9, 1884. 28 O. G., 285. 1. It appearing from the evidence that the machines relied upon to anticipate the complainant's invention did not arrive in this country until after the date of complainant's invention, Held that such machines have no bearing upon the question of novelty. 2. The complainant's patent construed and sustained. Mr. S. A. Duncan and Mr. B. F. Thurston, of counsel for the complainant. Mr. C. H. Knox, of counsel for the defendants. WALLACE, J.: At the hearing of this cause all the questions involved were decided adversely to the defendant for reasons then stated, except the question of the novelty of the invention. The examination of the proofs shows that the devices upon which the defendant mainly relied to negative novelty, and to which the testimony of the experts is principally addressed, have no bearing whatever upon the issue. These are the devices of Siemens referred to in the letter and report of Colonel Abbott. It appears by the proofs that the invention described in the complainant's patent was conceived by Smith, the inventor, and embodied in a magneto electric apparatus in October, 1873. It is not shown that either of the Siemens machines purchased by Colonel Abbott in Europe had arrived in this country at that time. While it may be conjectured from the statements of his letter (which by stipulation are made evidence of the facts) that he had received the machines prior to October, there is no proof to this effect. It only remains, therefore, to consider the rheotomes and the apparatus described in Siemens's English patent of 1867. It is obvious that neither of these devices contains the invention of Smith. Smith's invention is an automatic switch for a dynamo-machine for shifting the electric current from one path to another. It is actuated and controlled by the electric current to open and close the connection between the primary circuit and the exterior or working circuit. It is a pivoted and ballasted lever located bet ween the two circuits, Laving an armature at the end nearest the primary circuit, and a weight and spring at the other end. The switch as combined with the dynamomachine and the primary and exterior circuits is intended and is efficient to do work which had not theretofore been done by such a machine. The rheotome and the devices of Siemens are circuit breakers designed and adapted for different work. In neither is there any necessity for shifting the path of the current from one circuit to another. They show the principle of breaking the current and deflecting it automatically employed by Smith; but the differences in the organization of the apparatus are as radical as the differences in the work for which each is designed. A decree is ordered for complainant, adjudging the infringement of the second and fifth claims of the patent. [United States Circuit Court-Southern District of New York.] FETTER ET AL. v. Newhall. Decided April 23, 1884. 28 O. G., 285. Motion for punishment of the defendant for a violation of the injunction grauted on final hearing denied, for the reason that the device employed by the defendant is not the equivalent of the patented device. Mr. Amos Broadnax for the orators. Messrs. Bakewell & Kerr for the defendant. WHEELER, J.: This cause has been heard on a motion for punishment of the defendant for a violation of the injunction granted on final hearing. (Fetter v. Newhall, 17 Fed. Rep., 841.) The defendant appears to make or be concerned in making two kinds of drive-screws, one of which has a conical point in diameter at the base equal to the diameter of the shank within the threads, and the other having threads extending to the extremity of the point, the threads of each being of the same shape as those of the orator's patent. The novelty and utility of invention on which this patent was granted by the Patent Office, accepted by the patentee, and held valid by this court consisted in the conoidal or conical smooth point large enough to part the fibers of the wood in driving and make an entrance for the threads, so that they would not be forced against the fibers to make a pathway for themselves or for one another. It did not cover the threads separately from the point, and cannot be made to cover them now. (Keystone Bridge Co. v. Phonix Iron Co., 95 U. S., 274.) Neither of these devices of the defendant has such a point. It is urged that the threads at the point of the defendant's screws make the points the equivalent of the patented point. The foremost threads do, in driving, with the smaller point, make way for the rest of the threads, as the larger point does. This is the case with all drive-screws having a point smaller than the circumference of the threads, and this 18 what the patented point was patented for obviating. If the screw improved upon was the equivalent of the patented improvement the patent would cover nothing. The patent is quite a narrow one, and this construction would undermine the whole of it. The motion is denied. FETTER ET AL. v. OLIVER BROTHERS & PHILLIPS. 28 O. G., 285. The motion in this cause for a preliminary injunction rests upon the same grounds, and is denied for the same reasons as the motion for an attachment in Fetter et al. v. Newhall. Motion denied accordingly. [United States Circuit Court-Southern District of New York.] WOOSTER v. MUSER ET AL. Decided April 23, 1884. 28 O. G., 286. 1. An answer in equity is required for discovery and evidence, as well as for grounds of defense, and evidence cannot be given by attorney; therefore an answer so made is wholly irregular. 2. But as the orator did not move to have the answer taken off the file for the irregularity, nor to have the bill taken pro confesso for want of an answer, nor except to the answer for insufficiency, by replying to it he admitted it to be sufficient, however imperfect it might be. 3. The production of a patent shows prima facie that all the preliminary steps necessary to the grant have been taken. 4. The law would presume damage and deprivation of profits from infringement; but there must be at least proof of the latter to make out either by it. Mr. Frederic H. Betts for the orator. Mr. Edmund Wetmore for the defendants. WHEELER, J.: The bill states the issuing of a patent to one Douglass, the assignment, and a reissue of it to the orator; that the defendants, in order to deprive him of profits, infringed and derived profits to themselves, and greatly injured him, and prays an account of profits and damages. One of the defendants answers for himself and in the name of the others, by himself as attorney for each, and states that they are not informed as to the issuing and assignment of the patent, and therefore deny the same and leave the orator to make such proofs thereof as he shall be advised; and further answering denies "that they have deprived the complainant of any profits or inflicted upon him any damages," and prays for dismissal, with costs. .The orator by replication in usual form traversed the answer, put the reissued patent in evidence, and examined two witnesses as to infringement. The cause has been heard on these pleadings and proofs. The principal questions are as to where, on these pleadings the burden of proof rests, and, if upon the orator, whether he has made out his case. An answer in equity is required for discovery and evidence, as well as for grounds of defense, and evidence cannot be given by attorney; therefore an answer cannot be made by attorney, and this answer is, as to those answering in that way, wholly irregular. And then the gist of the charge in the bill is the infringement. The answer does not meet that, but denies resulting damages and deprivatious of profits, which if true would not defeat the right to maintain the bill. But still, as the orator did not move to have the answer taken off the file for the irregularity, nor to have the bill taken pro confesso for want of an answer, as if the answer was void, nor except to the answer for insufficiency, by replying to it, he admitted it to be sufficient, however imperfect it might be. (Story's Eq. Pl., sec. 877.) The issue joined upon the answer by the traverse was upon its allegations and denials as they were, and the orator, by joining that issue, placed himself where he must overcome the denials and maintain his bill. (Young v. Grundy, 6 Cranch, 51.) The reissue of the patent ran directly to the orator, and was founded upon assignments entitling him to it; and the production of it would show prima facie that all the preliminary steps had been taken. The law would presume damage and deprivation of profits from infringement, but there must be at least proof of that to make out either by it. The proof is wholly as to use. It comes from a reluctant witness so situated that full force should be given to what he does say, but beyond what he says and what may be fairly inferred from that there is no proof. Without going beyond that and into suspicion and conjecture, the fact of the use by the defendants of the device patented by this patent does not appear. The orator may have a good case, but the defendants have not admitted it, neither has he proved it. Let there be a decree dismissing the bill, with costs. [United States Circuit Court-Western District of Pennsylvania.] STUTZ v. ARMSTRONG & SON. Decided July 4, 1884. 28 O. G., 367. 1. Where it appears from the original papers in a case that a certain feature was within the contemplation of the inventor as a valuable element in a patentable combination, and it is proved that a claim embracing such feature was erased from the original application through a misunderstanding of the invention by the solicitors: Held, that the Commissioner of Patents committed no error in granting a reissue containing a claim embracing such feature. 2. The fact that a reissue application was filed within two years after the grant of an original patent, while it may not be conclusive against the charge of unreasonable delay, is entitled to some consideration in view of that provision of the patent laws by which nothing less than two full years' public use of an invention is a bar to an application for a patent. 3. In determining whether an inventor is guilty of inexcusable delay, the fact that the correction of a mistake by reissue was before any adverse rights had ac. crued is a consideration of paramount importance, and it ought to count something in his favor that, being of foreign birth, education, and an alien tongue, he encountered difficulties in acquiring a knowledge of our language and laws. 4. There is no patentable combination in a mere aggregation of old devices which produce no new effect or result due to their concurrent or successive joint and cooperating action; but it is by no means essential to a patentable combination that the several devices or elements thereof should coact upon each other. It is sufficient if all the devices co-operate with respect to the work to be done and in furtherance thereof, although each device may perform its own particular function only. 5. If a patentee might have claimed an element generally and broadly, most assuredly his more limited claim cannot be successfully impeached. 6. It is settled that a disclaimer need not be filed until the court has passed upon the contested claims. |