COPYRIGHT-ENJOINING ILLEGAL USE OF COPYRIGHT NOTICE-JURISDICTION OF CIRCUIT COURTS.

The jurisdiction of a circuit court of the United States to enjoin the issuing, publishing, or selling of articles marked or imported in violation of the copyright laws, is derived solely from Rev. St. § 4963, as amended by Act March 3, 1897 (29 Stat. c. 392), which, by its terms, does not apply to any importation or sale of such articles brought into the United States prior to its passage.

On Motion to Require Witness to Answer Question.

A. Bell Malcomson, for the motion.
Louis C. Raegener, opposed.

LACOMBE, Circuit Judge. This is a suit in equity praying injunction against improper use of copyright notice. This court has jurisdiction to entertain such suit only by virtue of the amendment to section 4963, Rev. St. U. S., which was contained in the act of March 3, 1897. That act, however, expressly provides that it "shall not apply to any importation or sale of such goods or articles brought into the United States prior to the passage hereof"; i. e. prior to March 3, 1897. Inasmuch as the bill does not aver that the acts complained of are concerned with goods or articles brought here subsequent to that date, it would seem that the bill does not aver facts sufficient to give the court jurisdiction of this suit for injunction by the persons complaining. However that may be, it appears from the record that the particular question is put to the witness touching goods shipped to this country in 1896. As to any impressing, issuing, selling, or importing of such goods with improper copyright notice, this court manifestly has no jurisdiction to maintain this suit, and therefore has no jurisdiction to require the witness to answer. Motion denied.

DUFF v. DAVIS GLASS CO.

(Circuit Court, Western District of Pennsylvania. July 8, 1899.)

No. 7.

PATENTS-INFRINGEMENT-GAS PRODUCERS.

The Duff reissued patent, No. 11.523 (original No. 517,271), for an improvement in gas producers, was not anticipated by anything in the prior art, and the invention described is of a high order of merit. Also held infringed as to claims 1 and 2.

In Equity. This was a suit in equity for infringement of a patent. On final hearing.

Bakewell & Bakewell, for complainant.

E. S. Craig, John H. Roney, and J. Snowden Bell, for respondent.

ACHESON, Circuit Judge. The bill charges the defendant with infringement of reissued letters patent No. 11,523, dated January

28, 1896, for an improvement in gas producers, granted to the complainant as assignee of the inventor, Edward James Duff, to whom the original letters patent, No. 517,271, were issued on March 27, 1894. The original specification is embodied in the specification of the reissued patent, and the first and second claims of the reissue are identical with the claims of the original patent. The reissued patent contains a new claim, numbered 3. Under the proofs, however, it will not be necessary for the court to consider any question touching the validity or infringement of this new claim; for, if the defendant infringes the reissued patent at all, the device complained of is clearly covered by the first and second claims. Those claims are as follows:

(1) A gas producer provided with a water-sealed bottom trough, and a casing located in the lower portion of the producer, provided with an inlet for air from a blower, and with a cover of gratings inclined from the sides of the casing upward to a middle angular ridge, and free spaces between the said casing and the sides of the producer for the residues to pass from the gratings of the said casing to the water trough, substantially as and for the purposes set forth. (2) A gas producer of rectangular section, provided with a watersealed bottom trough and transverse casing extending from side to side of the producer and across the center thereof, the said casing being provided with an inlet for air from a blower, and with a cover having vertical openings therein, said cover being inclined upward from its opposite sides to a middle angular ridge, and free spaces on the opposite sides between the casing and the sides of the producer, all substantially as and for the purposes set forth.

The distinguishing features of the gas producer described in the patent in suit are a bottom casing or chamber, into which the blast of air and steam is delivered; a top or cover for this casing or chamber, consisting of outwardly inclined gratings having openings to distribute the blast under the body of the fuel, and forming also guiding surfaces, down which the residual ashes will slide towards the exterior of the producer, and free spaces between the lower edges of the inclined gratings and the walls of the producer, through which the ashes will descend into a water trough which seals the bottom of the producer, and from which trough the removal of the ashes is effected without making any opening into the producer, and without any interruption of the air blast. These features are covered by the first and second claims of this patent. I have carefully examined the prior patents in evidence in connection with the testimony relating thereto of the several witnesses, and I have reached the conclusion that in none of them is the combination of either the first or second claim of the patent in suit to be found. Anticipation of either of these claims has not been shown. The improvement of the patent in suit is one of a high order of merit. The proof is full and convincing that by reason of its automatic and continuous method of operation, in point of economy, and for good results generally, the Duff gas producer of this patent is superior to any previously known gas producer. That the improvement is patentably new and useful is most clearly established. It only remains, then, to inquire whether infringement is shown. Here the case is free from any real difficulty. In all essential particulars the plaintiff's gas producer and the gas producer of the defendant are alike. The defendant has appropriated all the val

uable features of the patented device, and has combined the constituents in the same way. It is true that the patent in suit shows inclined gratings having plain surfaces, whereas in the defendant's structure the downward surfaces in outline are zigzag, or are formed in steps. This change, however, is purely formal. In principle the two constructions are identical. The mode of operation and the result are the same. This very clearly appears from the evidence, and especially from the testimony of the practical witness H. L. Dixon. Let a decree be drawn in favor of the complainant as respects the first and second claims of the patent.

L. E. WATERMAN CO. v. VASSAR COLLEGE.

(Circuit Court, S. D. New York. January 26, 1900.)

PATENTS-VALIDITY-FOUNTAIN PENS.

The Waterman patent, No. 604,690, for a fountain pen, held valid on demurrer to a bill for infringement.

This is a suit in equity for infringement of a patent. On demurrer to bill.

Walter S. Logan, for plaintiff.

William B. Whitney, for defendant.

WHEELER, District Judge. This cause has been heard upon demurrer to a bill of complaint, in usual form, for infringement of patent No. 604,690, dated May 24, 1898, and granted to Lewis. E. Waterman for a fountain pen. The patent is long and intricate, with 26 claims for various forms of conical and somewhat elastic joints, in different places and connections where tight joints are required in such pens. If such a joint, or the mere use of such a joint, in a fountain pen, was all of the invention described in the patent, there would undoubtedly be an entire want of patentable novelty. Such joints have long been in well-known use in many ways, and in some ways in fountain pens. This does not fully show, however, that there may not be patentable invention in arranging such joints with, and adapting them to, the other parts of such pens, where so much of the utility depends upon the perfection of the joints. Potts & Co. v. Creager, 155 U. S. 597, 15 Sup. Ct. 194, 39 L. Ed. 275. It is suggested that an examination of the many patents on the parts of these pens would show such joints so in use about the parts as to demonstrate clearly the want of patentability of this invention. But this would be more than belongs to the court, and unsafe. Demurrer overruled, defendant to answer over by March rule day.

NATIONAL CASH-REGISTER CO. v. NAVY CASH-REGISTER CO. et al. (Circuit Court, N. D. Illinois, N. D. January 26, 1900.)

No. 25,351.

1 PATENTS-INFRINGEMENT-CASH REGISTERS.

The Ritty and Birch patent, No. 271,363, for a cash register, held infringed.

2. SAME-PRELIMINARY INJUNCTION-EXPIRATION OF PATENT.

A suit for infringement was instituted, and an application for a preliminary injunction made, three months before the expiration of com. plainant's patent, but the record was not perfected so as to enable the court to pass upon the motion until eight days before such expiration. Held that, although good ground for relief was shown, an injunction would be denied upon the filing of an adequate bond by defendant covering such damages and costs, both past and future, as might be awarded to complainant on final hearing.

This was a suit for infringement of a patent. On motion for preliminary injunction.

Edward Rector, for complainant.

Offield, Towle & Linthicum and Thos. W. Flynn, for defendants.

KOHLSAAT, District Judge. The bill herein was filed November 1, 1899. It seeks to enjoin the alleged infringement by defendants of the Ritty and Birch patent, No. 271,363, issued January 30, 1883. This patent expires on the 30th of this month. A motion for a preliminary injunction was made before this court on November 3, 1899, and, by reason of the inability of the court to grant an early hearing, the matter was referred to a master in chancery to take proofs, and report the same, together with his conclusions thereon. The master filed his report herein on December 22, 1899, in which report the issuance of a preliminary injunction was recommended. On December 27, 1899, the exceptions of defendants to said report and recommendation were argued before the court, and on January 6, 1900, the exceptions were sustained, and the motion for a preliminary injunction denied, upon the ground of absence of formal proof of title. 99 Fed. 89. The merits of the application were not at that time passed upon by the court. Thereafter complainant filed further proofs, and obtained leave of court to renew its application for a preliminary injunction upon the record as amended. The motion upon the record, as supplemented by additional affidavits and papers, came on to be heard by the court on January 20, 1900, when, in addition to the objections theretofore raised, the defendants insisted upon proof to establish the corporate existence of complainant, which corporate existence was denied by answers filed by defendants on December 29, 1899, subsequent to the last hearing. On January 22, 1900, prima facie proof of the corporate existence of complainant was for the first time filed, so far as the record herein shows. Therefore, granting that, upon the record as it now stands, complainant has established its title to the patent in suit, that the patent is valid, and that it has been infringed by defendants, the motion for a preliminary injunction stands before the court as though made within eight days of the expiration of the patent.

The ground of objection heretofore raised to the proof of complainant's title, to wit, that no proper foundation was laid for the introduction of the certified copies of the patent-office records of the various assignments in the chain of title, has, in the opinion of the court, been met by the affidavits now on file showing the original existence of the various instruments of assignment, and that the same have been lost or mislaid, and are out of complainant's power to produce. The technical objections of defendants, relating to the insufficiency of the proof offered to establish this foundation for the introduction of secondary evidence, the court finds not well taken. The proof is prima facie sufficient.

There seems to be no doubt as to the validity of the patent in suit. It has been sustained by the circuit court for the Eastern district of Pennsylvania in National Cash-Register Co. v. American Cash-Register Co. (C. C.) 47 Fed. 212; and also by the federal supreme court in the suit of National Cash-Register Co. v. Boston Cash Indicator & Recorder Co., 156 U. S. 502, 15 Sup. Ct. 434, 39 L. Ed. 511.

Upon the question of infringement, it is true that defendant's device is a decided advance upon that covered by complainant's patent. It enables the operator, by a system of segregated working bars, to combine figures with ease,-something that complainant's device accomplishes with considerable awkwardness and difficulty; and perhaps the courts would be justified in holding, in a proper case, that such improvement is novel and patentable. That, however, is not the matter involved here. Defendants have manufactured and placed upon the market, though in a limited way, a complete cash register, which complainant insists involves all the features of its patent. A comparison of the two machines shows that in complainant's device the rocking shaft is pivoted at the bottom, whereas in defendants' device it is pivoted at the top, and is termed a "bail." Other minor variations are disclosed, but the differences are merely in form, and not in principle. Each "bail" of defendants' system of rocking shafts is a substantial infringement of complainant's device. Certainly, neither the issuance of a patent upon defendants' device, nor the dividing of the rocking shaft, would avoid infringement. Neither would defendants' claim, that some portions of their combination are used to accomplish different ends from those accomplished by analogous portions of complainant's device, avoid infringement. Defendants' mechanism is certainly much nearer complainant's in manner of construction and operation than was that in the Boston company's machine. The fact of infringement must be held to be clearly made out.

Should, then, under all the circumstances of this case, an injunc tion be granted for the remaining four days of the life of complainant's patent? It has been shown herein that defendants, with full knowledge of the decisions of the courts above quoted, have been and are preparing to place their machine upon the market in competition with complainant's machines just as soon as the patent in suit has expired. Defendants have been for some time past perfecting their machine by experiments, and have placed a few of them upon the market,-one or two, as they claim; seven or eight,