that the defendant has been doing for seven years what is now complained of, and that in 1880 the plaintiff sued the defendant at law in the circuit court of the United States for the district of Massachusetts for the infringement of the patent now sued on, and that such suit at law, after proceeding to a declaration, has been allowed by the plaintiff to remain unprosecuted. It appears that what the defendant did before such suit at law was brought was of the same character with what it has done since. The plated articles it now has on hand for sale as parts of sewing-machines must have been plated by it since such suit at law was brought. The plaintiff does not plate, but licenses others to plate. It is shown that the defendant's license-fee would be about three hundred dollars a year. That would be the amount of profits or damages to be recovered by the plaintiff. The defendant is shown to be pecuniarly responsible. Under the foregoing circumstances there ought not to be an injunction before final hearing. [United States Circuit Court-Southern District of New York.] URNER v. KAYTON ET AL. Decided August 2, 1883. 24 O. G., 1178. PRACTICE IN THE COURTS--PAYMENT OF MASTER'S FEES. Prior to final decree and taxation of costs, the defendants having been adjudged infringers and decreed to account for the gains, profits, and damages of their infringement, are to bear the necessary expenses of the accounting, among which are the master's fees. Mr. John A. Shields, master, pro se. Mr. Andrew Comstock for the orator. Messrs. Wetmore & Jenner for the defendants. WHEELER, J.: This cause has now been heard on motion of the master for payment of his fees on the accounting. It is agreed that his fees amount to $150. Each party insists that the other should pay them. The question now is not how the cost shall finally be allowed and taxed in favor of either party against the other, which can be determined properly only at the making of the final decree, but is, which party shall pay these fees, in the first instance. As the defendants have been adjudged to be infringers and decreed to account for the gains, profits, and damages of their infringement, they are to go forward in the accounting and bear the necessary expenses of doing so, among which are the master's fees This was so held in Bridges v. Sheldon, district of Vermont, October term, 1879. Let an order be entered that the defendants pay these fees within fif. teen days from the entry of the order. [United States Circuit Court-Southern District of New York.] WILCOX & GIBBS SEWING MACHINE COMPANY v. FRAME. Decided August 4, 1883. 24 O. G., 1272. 1. A MONOPOLY SECURED BY LETTERS PATENT CEASES UPON EXPIRATION OF THE PATENTED TERM. Whatever was patented to the inventor and enjoyed by him and those operating under him during the term of the patent belongs to the public and is free to all at the expiration of the term. 2. SAME-CANNOT BE PERPETUATED BY REGISTRATION AS A TRADE-MARK. The monopoly cannot be perpetuated by means of making the form, shape, general configuration, or ornamentation of a machine a trade-mark after the expiration of the patent for the design or mechanism. Mr. Stephen A. Walker and Mr. A. C. Brown for the orator. Mr. J. Hampden Dougherty and Mr. Joseph C. Fraley for the defendant. WHEELER, J.: This suit was brought in the Supreme Court of the State to restrain the use of frames in sewing machines in the shape of the Roman capital letter G. A preliminary injunction restraining such use until further order was granted ex parte, and before further proceedings the cause was removed to this court. It has now been heard on motion to dissolve this injunction. As the case now stands it appears that Letters Patent No. 21,129 were granted to James E. A. Gibbs, under date of August 10, 1858, for improvements in sewing machines, the drawings and model of which showed this frame, but it was not claimed as a part of the patented invention; that Design Letters Patent No. 1,206, under date of February 21, 1860, were granted to him for this form of frame; that upon the surrender of the original patent, No. 21,129, Reissue Letters Patent No. 2,655, under date of June 18, 1867, were granted to him, in which this shape of frame was particularly described, and its advantages set forth Which not only stamps it with a peculiar character, but is also exceedingly useful, as it affords the greatest possible space for the cloth or material to be sewed, of being turned and twisted under the needle and upon the table. And there was claimed as a part of the patented inventionCombining with the vibrating needle-arm a frame shape substantially like the Roman letter G, as herein shown and described, and for the purpose set forth. The orator operated under these patents until they expired-the design patent February 21, 1867, and the reissue patent August 10, 1872. The orator registered this form of a frame as a trade-mark, and obtained certificate No. 8,356, dated June 14, 1881, in the declaration for which it is stated that This trade-mark has been used continuously in the business of the said company since the year 1859. The orator manufactured and sold sewing-machines having this form of frame so extensively and for such length of time, while others were excluded from doing so, that their machines came to be known to the trade by this feature. The defendant makes and sells machines with the same style of frame, which to some extent indicates to those not informed that his machines are of the orator's make. The question now is, whether the defendant has the right to continue such use of this form of frame or the orator has the right to have him restrained from such use. This frame is an essential part of those sewing-machines, as it supports most of the moving parts of the machinery in the proper place for doing their work. This form of frame has some advantages over others in that it requires less room for itself in proportion to the room afforded by it for the other parts and the material sewed, as described in the patent for it. Sewing-machines made with these frames, otherwise good, were good machines. The frames in this form were a part of the manufacture to be identified as to source, and not an identifying mark merely of source, indifferent to the manufacture. The orator in the use of this frame made a good machine in this respect. Without the protection of a patent, however, the orator could not, by making good ma chines, either in form or style, or in other respects, exclude others from making the like in either or all of these particulars in the first instance; certainly not until a feature had been used long enough to be known as a mark of the orator's machines could the employment of it by others be a representation that their machines were the orator's. At common law this form was open to everybody, and but for the exclusive use conferred by the patents it might have been employed by others so extensively that the employment of it by the orator would not have been any representative at all that machines having it were of the orator's make. The exclusive rights of the orator up to the time of the expiration of the patents appear to have rested upon the patents, and not upon any right acquired independently of the patents. All rights acquired under the patents expired with them. Congress was given power to promote the progress of science and use. ful arts "by securing for limited times to authors and inventors the exclusive right to their writings and discoveries." (Const., Art. 1st, sec. 8.) The grant to the inventor of the exclusive right is in consideration of the benefit which the public will derive from the invention after the expiration of the term. Grant v. Raymond, 6 Pet., 218. Whatever was patented to the inventor and enjoyed by the inventor and those operating in any way under him during the term belongs to the public and is free to all at the expiration of the term. Accordingly a manufacturer of a patented article, after the expiration of a patent, has a right to represent that it was made according to the patent, and to use the name of the patentee for that purpose. Fairbanks v. Jacobus, 14 Blatchf., 337; Singer Mfg. Co. v. Stanage, VI Fed. Rep., 279; Singer Mfg. Co. v. Riley, XI Fed. Rep., 706; Singer Mfg. Co. v. Loog, 48 L. T. R. N. S., 3, XV Reporter, 538. Anything descriptive of the properties, style, or quality of the article merely is open to all. Canal Co. v. Clark, 13 Wall., 311; Mfg. Co. v. Trainor, 101 U. S., 51. While no one has the right to sell his own wares as the wares of another, every one has the right to make and sell any wares not protected by patents. Marks, symbols, or dress placed upon the wares might unlawfully misrepresent their source; but when left to speak for themselves alone there could be no wrongful misrepresentation. These principles are not much controverted by the orator's council, but it is claimed that as the orator's machines are somewhat known by this frame, and other shapes easily distinguishable from this might be equally useful, some of which in hexagonal or octagonal, instead of curved, shape are suggested, the defendant should use some of those. But those, doubtless, would have been infringements of the patents, and the style used is as much freed by the expiration of the patents as those are. All the effect which these frames have in representing machines to be those of the orator appears to be due to the monopoly enjoyed under the patents, and to give the orator the benefit of the effect by calling the frame a trade-mark would continue the monopoly indefinitely, when under the law it should cease. It is obvious that the registration of the trade-mark in 1880 would not affect rights which the public already had acquired. It is not claimed that it should. Motion granted. [United States Circuit Court-District of New Jersey. ] THE DELAWARE COAL AND ICE COMPANY v. PACker. Decided April 13, 1880. 24 O. G., 1273. CONSTRUCTION OF A PATENT-IMPERFECT CLAIMS. It is the office of the claims of a patent to reveal to the world what the characteristics of the invention are for which the patentee desires protection. If he fail to state these fully and correctly, he may remedy the omission by a surrender and reissue, but until then the court has no power to give him relief against infringers. NIXON, J.: The complainants are owners of certain letters patent numbered 73,684, and dated January 21, 1868, issued to John Henry Wood, for improvements in wagons for unloading coal, and have brought their suit against the defendant for infringing the same. The defendant, in his answer, denies, first, the novelty and usefulness of the patent, and, second, the alleged infringement. The complainants' patent is for a mechanism to accomplish a certain result, to wit, the unloading of coal or other material from wagons. The inventor, in his specifications, calls it an improvement upon old devices for the same object, and he is entitled to have the benefit of all original devices or combinations that accomplish new and better results than existing organizations, but only for such. Whatever he has incorporated into his patent from the common property of the public at the date of his invention still belongs to the public. Railway v. Sayles,. 7 Otto, 554. The first inquiry then will be, what is claimed as new in the complainants' patent? The patentee says in his schedules that the nature of his invention consists in the funnel-shaped mouth attached to the cart or wagon, in combination with the chute and valve. He claims: 1. The attachment of a funnel-shaped or incline mouth, D, of any material, to the rear or side of a cart or wagon, as herein described, and for the purpose set forth. 2. The valve or gate E, at the end of the mouth D, or in the chute or tube G, when combined as herein described, and for the purpose set forth. 3. The hinged or sliding chutes or tubes H, when attached to an open mouth or to the end or side of a cart or wagon, for the purpose herein set forth. He is presumed to know what he invented, and he tells us with sufficient clearness. He must stand here upon his claims, for the thing is what the inventor claims, and not what he shows. If he states these too narrowly, the law authorizes him to surrender the patent and reissue the same with ampler statements; but until this is done the courts cannot give him more than he asks for. (Couse & Blood v. Johnson, Black & Co., 16 O. G., 719.) He says the patent is for a combination. Looking for the combination, we find three elements: (1) a funnel-shaped or incline month attached to the rear or side of the wagon; (2) a valve at the end of the mouth or in the chute, and (3) hinged or sliding chutes, when attached to an open mouth or to the side of the cart or wagon. It is not claimed in the argument that either of these elements is new. The first, standing alone, is clearly anticipated by the English Letters Patent No. 2,909, and dated December 21, 1859, granted to Samuel Plimpsol, for "facilitating the unloading and transferring from railwaywagons into carts, &c., coal and other matters with which they may be loaded." The second is found in Letters Patent No. 14,301, issued to William Bell on the 29th of February, 1856, where it is called a slide, and is used for the same purpose and performs the same functions as in the complainant's patent. Indeed, it may be observed that unless a very limited construction is given to the patent of the complainant, it is difficult to see how it can be allowed to stand at all, in view of the quite similar instrumentalities patented by Bell to accomplish the same results. He states that he has invented a new and improved method of depositing anthracite and bituminous coal in cellars from carts and other vehicles through scuttles in sidewalks, and that it consists in providing a conductor and attaching the same to a hole in the bottom of a cart or other vehicle, of sufficient diameter to allow coal to pass through the same, through the coal-scuttle and sidewalk, without dropping it upon |