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made to Weir, and through which the defondants claim, to convey to him the interest which had been previously conveyed by the patentee in the counties of Warren and Henderson in this State.

Another objection made to the right of the plaintiffs to recover is that the conveyance to them did not include the right to use as well as to make and sell the improvement patented within those counties. I think that the assignment to make and sell includes necessarily the right to use the thing patented, because without the right to use the right to make and sell would be a barren right. It must be construed as having been the intention of the parties that the right to manufacture and sell included the right in the vendee to use the thing sold.

There is nothing in the case to estop the plaintiffs from setting up a claim under this patent in consequence of any supposed laches that they may have committed; and I think it must be considered that the defendants, under all the circumstances in the case, have infringed upon the right of the plaintiffs. I have not the models of the machines here, without which a statement of the particular points constituting the claim of infringement by the defendants would be unintelligible. It is sufficient to say that I have heretofore fully considered those questions, and have reconsidered them on the argument which has been made, and have reached the conclusion which I then formed, although, perhaps, I did not particularly state it at the time.

It may be said the case is not one of very great importance in some respects-that is, it includes only two counties in this State; but, as I have said, some of the questions involved are quite important, and particularly as to the construction under the patent law of the assignments in this case.

[United States Circuit Court-Southern District of New York.]

MATTHEWS v. SPANGENBERG ET AL. SAME v. MARBLE.

Decided April 25, 1882.

23 O. G., 92.

1. EVIDENCE TAKEN OUT OF TIME-MOTION TO SUPPRESS.

Evidence taken and filed out of time, when there had been no motion to suppress the same, and when objection was made at the hearing to its consideration, allowed to stand and be considered.

2. INFRINGEMENT.

Where the defense was that the defendants' machine was purchased of another person, who had settled with the patentee therefor, and the proof failed to show that the defendants purchased before the date of settlement, Held that the use by the defendants of such apparatus is an infringement.

3. DISCLAIMER-NEGLECT TO FILE-COSTS.

Where the patentee made certain claims by mistake without any willful default or intent to mislead the public, and did not unreasonably neglect to enter disclaimer of the same, he is entitled to maintain suit, but without cost, upon entering the proper disclaimer.

4. PATENT NO. 2,028 EXAMINED.

Reissue Letters Patent No. 9,028 examined and sustained as to the fourth, sixth, eighth, and ninth claims, held not infringed as to the first claim, and void as to the fifth and seventh.

Mr. Arthur v. Briesen for the plaintiff.

Mr. Philip Hathaway for the defendants. WHEELER, J.

These suits are brought upon Reissue Letters Patent No. 9,028, dated January 6, 1880, granted to the orator upon the surrender of original Letters Patent No. 50,255, dated October 3, 1865, for soda-water apparatus. The defenses relied upon are that the defendants purchased the apparatus used by them of William Gee, who afterward settled with the orator; that the patent is void for want of novelty, and that they do not infringe. The original patent is not in evidence.

Some of the defendants' evidence was taken and filed out of time. No motion to suppress it has been filed. The orator objects to its consideration, and the defendants ask that it be considered or the time extended to cover its taking. As no motion to suppress has been filed, it is allowed to stand and is considered. Wooster v. Clark (21 O. G., 264) is relied upon by the orator on this point, but in that case there was a motion to suppress.

The case does not show that the defendants purchased their apparatus of Gee before he settled with the orator, and therefore entirely fails to show that he settled with the orator for the sales to the defendants. They stand by themselves independently of Gee. Steam Stone Cutter v. Windsor Manufacturing Company, 17 Blatchf., 24. That defense fails for want of proof.

The patent has nine claims. The second and third are not in controversy. Upon all the evidence it is found that the first claim is not infringed; that the fifth and seventh are anticipated by Letters Patent No. 44,645, dated October 11, 1864, granted to A. J. Morse, for a sirupfountain, and that the fourth, sixth, eighth, and ninth are not antici pated, and have been infringed by each of the defendants. The parts of the things patented in the fourth, sixth, eighth, and ninth claims are definitely distinguishable from the parts claimed in the fifth and seventh claims, and the orator appears to have made the latter claims by mistake, supposing himself to be the original and first inventor of the parts claimed in them, without any willful default or intent to defraud or mislead the public, and not to have unreasonably neglected to enter a disclaimer of those parts. Thus far, therefore, he is entitled to maintain this suit, but without costs, on entering the proper disclaimer. Rev. Stats., sec. 4922; Burdett v. Estey, 15 Blatchf., 349.

On filing a certified copy from the Patent Office of the record of a disclaimer by the orator of what is claimed in the fifth and seventh claims, let decrees be entered that the fourth, sixth, eighth, and ninth claims of the patent are valid, that each of the defendants have infringed, and for an injunction and an account, without costs.

[United States Circuit Court-District of Connecticut.]

JUDD v. BABCOCK ET AL.

Decided August 6, 1881.

SASH-SUPPORTERS-INFRINGEMENT.

23 O. G., 92.

Reissued patent granted April 5, 1879, to Charles A. Schaefer, for an improvement in sash-supporters, describing an arrangement of devices for preventing windows from rattling, and claiming, inter alia, a cylindrical screw-case holding the plunger, which presses against the side of the window-frame, is not infringed by a combination of devices forming a window-catch for holding up the window, and including, among other things, the cylindrical screw-case, which, however, is used for containing a different kind of plunger, to attain the different purpose which is the object of the combination. The two articles as a whole are unlike, and the objects for which the cylinders are used are unlike.

Mr. Charles E. Mitchell for the plaintiff.

Mr. William E. Simonds for the defendants.

SHIPMAN, J.:

This is a bill in equity founded upon the alleged infringement of reissued letters patent, granted April 15, 1879, to Charles A. Schaefer, assignor to the plaintiff, for an improvement in sash supporters. The original patent was granted to Schaefer May 21, 1867. In the original specification the invention was styled "a spring and friction roller for regulating sash,” and the patentee says:

The object of my invention is to provide means for holding loose sash in windowframes in such a manner as to prevent a lateral motion which frequently renders the common sash-spring inoperative, and otherwise produces a disagreeable rattling noise; and its nature consists in the use of a cylindrical screw turned into the jamb-casing, and having fitted into its cavity the shank of a pully-fork operated by a spiral spring. By this arrangement a convenient device is provided for holding sash in position to be easily run up and down in the frame, and also press the sash against that side to which the lock is put on.

The specification, in describing the method of adjusting the device in the window jamb, also says:

A hele of suitable size must be made in the jamb-casing, after which the cylinder A can be turned in, by means of a common wrench, to such a depth as will allow the full force of the spring I to press the roller d against sash n and permit the shank e to have a backward longitudinal motion for overcoming, the inequality of the width of sash. This can be easily done by turning the cylinder A in or out as the nature of the case may require.

It will be seen from this description that provision is made for adjusting roller d by means of screw-cylinder A, not heretofore used, and prevent too great a longitudinal inotion of shank C.

The claim was for

The combination of the screw-cylinder A, shang C, spring I, and fork roller d. substantially as and for the purpose set forth.

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The reissue, taking advantage of the expression in the original, "screw-cylinder A, not heretofore used," says that

The invention consists in the cylindrical screw-case, adapted to be placed and screwed in position by screwing it into the jamb-casing; also, in the combination, with said case, of a longitudinally-moving and flat-sided plunger, fitted into a flatsided bearing in said case; also, in a general combination of parts, all as hereinafter described.

The claims are three in number, of which the first and second are as follows:

1. In a sash-supporter, the cylindrical case having a screw thread on its periphery, and internal longitudinal spring-chamber, and two bearings for the plunger, substantially as described, and for the purpose specified.

2. In a sash-supporter, the cylindrical case having an external screw-thread and two plunger-bearings, one of which is flat-sided, in combination with the longitudinal plunger fitted to said flat-sided bearing, and having, also, a projecting end of corresponding form adapted to receive a wrench for turning the case to screw it into the jamb, substantially as described, and for the purpose specified.

The defendants manufacture under letters patent to Franklin Babcock, dated September 29, 1868, a window spring-catch for supporting a window at a certain height or heights, the bolt to be held in notches cut in the edge of the sash. This device has a cylindrical shell-case, having a screw on its outer periphery for the purpose of screwing it fast to the window frame. The patent says that all the several parts are old, and claims only the specified combination. The only question in the case is as to the infringement of the first claim of the reissue. The second claim is not infringed, because the plunger must have the described roller or its equivalent.

This case shows the mischiefs which sometimes result from long-postponed reissues with expanded claims. Schaefer invented, in 1867, a device for preventing windows from rattling. It was to press against loose sash so as to prevent lateral motion, and so as to push the sash toward the side upon which the lock or fastener was placed. The claim of his patent was for the combination of the various parts. One of the defendants, who are manufacturers of builders' hardware, invented, in 1868, a window-catch for holding up a window, and, among other old elements, used the cylindrical case. The defendants have been manufacturing this article since that date. The plaintiff, a manufacturer in New Britain, bought the Schaefer patent and had it reissued in 1879. The spring roller has become a sash supporter, the shank of a pulleyfork has become a longitudinally-moving and flat-sided plunger fitted into a flat sided bearing, and the screw-cylinder has become a separate claim.

In considering the question whether the cylinder of the spring-catch is an infringment of the first claim of the reissue, it must be remembered that Schaefer's sash supporter is simply a device to prevent lateral motion of loose window-sash, and is not to be confounded with the ordinary window-catch or sash-fastener by reason of the general name which is

given the patent. Both articles are used upon a window, and both are screwed or fastened into a jamb-casing; but there is no analogy in the uses to which they are applied. The roller presses the sash against the catch; the catch holds up the window when it has been raised. Because Schaefer first applied his screw cylinder to a window friction roller he is not therefore entitled to the exclusive use of the cylinder when it is applied in other and not analogous' mechanisms to produce a new effect. It cannot properly be said that the effect which was to be produced by each cylinder was simply to hold a plunger. Screw-cylinders had been often used to hold plungers before either Schaefer or Babcock made their invention, as the bell pulls and hooks for blinds which were used on the trial show, but each screw-cylinder was to hold a very different kind of plunger, used for a different purpose, from that of its fellows. The effect which was to be produced by the socket of Babcock was to hold a bolt which should support and securely fasten a window, an effect very different from that produced by the Schaefer roller. Had the original friction-rol'er patent contained the first claim of the reissue, I think it would hardly have been contended that the claim covered all fasteners or catches in which such a socket should be used. The two articles as a whole are unlike, and the objects for which the cylinders are used are unlike.

There is no infringement, and the bill is dismissed.

[United States Circuit Court-Northern District of Illinois.]

SINGER ROCKING CHAIR COMPANY v. TOBEY FURNITURE COMPANY.

Decided August 4, 1882.

23 O. G., 93.

1. LETTERS PATENT No. 92,379 INVALID.

Letters Patent No. 92,379, granted July 6, 1869, to Charles Singer, for an improvement in rocking-chairs, construed and the first claim held to be invalid, it not covering a patentable invention.

2. SAME-OLD DEVICES-MERE MECHANICAL CHANGE.

A rocking chair constructed to move upon a stationary platform having a base or rails upon which the rockers move, the base being tongued and the rockers grooved so that one fits into the other, the ends of the base being elevated to prevent the rockers from working off, with flexible rubber bands connecting the rockers to the rails of the stand to prevent the seat from moving back and forth on the rails or rocking too far either way, is a mere mechanical change from chairs in previous use, and in such a device there is nothing that can be the subject of a patent.

Messrs. Banning & Banning and Mr. C. K. Offield for the plaintiff. Messrs. Coburn & Thacher for the defendant.

DRUMMOND, C. J.:

There are nine suits by the same plaintiff against different defendants, two of which have been brought in the circuit court of the United States for the Eastern District of Wisconsin, and the remaining suits in this

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