utilization of the principle would be attained by those skilled in the art who might follow in Miehle's footsteps. I therefore hold that the combination described in claim 1 of patent No. 317,663 is infringed by defendant's machine. I also hold that, in view of the circumstances of the case, the action of the patent office, and the wording of the specifications of patent No. 304,345, granted to Miehle September 2, 1884, the latter patent cannot be held to invalidate patent No. 317,663. Complainant may prepare a decree based on infringement of claim 1 of patent No. 317,663. The bill is dismissed as to patent No. 322,309.

NUTTER et al. v. BROWN et al.

(Circuit Court, D. Massachusetts. July 28, 1899.)

No. 1,038.

PATENTS-CONSTRUCTION AND INFRINGEMENT-BICYCLE BELLS.

Claims 1 and 8 of the Ericson patent, No. 491,012, for a bicycle bell which is sounded by bringing a friction roller into contact with the tire of the wheel, are limited, when construed in connection with the specification, to a device having an oscillatory plate or disk which carries both the striker and the operating mechanism therefor; and these claims are not infringed by the bell of the Barker patent, No. 608,146.

This was a suit in equity by Charles A. Nutter and others against John G. Brown and others for alleged infringement of a patent for a bicycle bell.

James E. Maynadier and William Maynadier, for complainants. Charles L. Burdett, for defendants.

BROWN, District Judge. This suit is for infringement of letters patent No. 491,012, issued January 31, 1893, to Lewis E. Ericson, for a bicycle bell. The patent describes a bell which is sounded by bringing a friction roller into contact with the tire of the bicycle wheel. This type of bell is not new with the patentee. In the specification the inventor says:

"My invention consists essentially in an oscillatory plate or disk carrying the striker and operating mechanism therefor; said plate or disk, by its movement, being adapted to throw its striker-operating mechanism into and out of engagement with the bicycle wheel, to actuate it or to allow it to remain at rest."

It is also said:

"Carried by the plate is the swinging striker H, adapted to strike the gong."

The drawings clearly show this construction. I am satisfied, therefore, that a device in which the oscillatory plate or disk does not carry both the striker and the operating mechanism therefor does not infringe the complainants' patent.

In the defendants' bell there is no oscillatory plate that carries both the striker and the operating mechanism for the striker. The complainants contend, however, that the defendants' device has what

is an equivalent of the complainants' oscillatory plate, and that because this equivalent carries the operating mechanism of the striker, there is infringement, though the striker itself is mounted upon an independent fixed plate having no oscillatory movement. The defendants' bicycle bell is described in letters patent No. 608,146, to W. H. Barker, dated July 26, 1898; and the differences and resemblances of the two devices are sufficiently illustrated by the drawings of the respective patents.

The complainants rely upon a special construction of claim 1:

"(1) In a bell for bicycles and other velocipedes an oscillatory plate or disk mounted to turn in the rear of the gong, and complementary striking mechanism carried by said plate and adapted by the movement thereof to be thrown into and out of action by contact with and removal from the bicycle or velocipede wheel."

They contend that the words "complementary striking mechanism" are applicable to a mere part of the striking mechanism; and it is urged that otherwise the word "complementary" is of no effect. Upon the complainants' contention the expression "complementary striking mechanism," used in claim 1, may be equivalent to the phrase "operating mechanism for the striker." I do not think this construction tenable. That which is carried by the defendants' oscillatory arm or plate cannot be termed "striking mechanism," since it cannot strike the bell. The mechanism described in claim 1 as carried by the oscillatory plate must be not only complementary mechanism, but complementary striking mechanism. The term "striking mechanism" properly includes the friction-wheel that takes power from the bicycle-tire, the swinging striker, and the parts intermediate. The term "complementary" indicates that the striking mechanism, when added to the bell, and to the oscillatory plate mounted in the rear of the gong, completes the full operative bicycle bell. This is a more natural interpretation of the word "complementary" than that which would hold it to signify a part of the striking mechanism, or that part of the striking mechanism which operates the striker.

The eighth claim is as follows:

"(8) In a bicycle bell, the combination of the oscillating plate or disk with the rear of the gong and provided with a striker having a pivoted handle, the rotating cam operating on the handle to force the striker back, the spring for throwing it forward and the fixed stop for arresting the spring, substantially as and for the purpose herein described."

While it is doubtful whether the language of this claim is sufficiently definite to constitute a valid claim, yet if we concede validity we are obliged to resort to the specification to learn whether it is a bicycle bell that is "provided with a striker having a pivoted handle," or the oscillating plate; and we think that the specification, with its express statement that "my invention consists essentially in an oscillatory plate or disk carrying the striker and operating mechanism therefor," controls the eighth claim as well as the first.

In view of the conclusions, as to the construction of the patent, and the finding that the defendants' device does not infringe the claims when properly construed, I do not deem it necessary to consider the

serious question whether in view of the prior and closely approximating devices the complainants' device is entitled to the protection of letters patent. The bill will be dismissed.

OVERWEIGHT COUNTERBALANCE ELEVATOR CO. v. STANDARD ELEVATOR & MFG. CO. SAME v. EATON & PRINCE CO. et al. SAME v. CRANE ELEVATOR CO. SAME v. J. W. REEDY ELEVATOR MFG. CO.

(Circuit Court, N. D. Illinois, N. D. July 19, 1899.)

PATENTS-EQUITABLE JURISDICTION-PATENT ABOUT TO EXPIRE.

Equity will not take jurisdiction when the patent sued on will expire 10 days after commencement of the suit, though the bill contains a prayer for injunction, preliminary and permanent, and the usual prayer for discovery and accounting, when no motion for a preliminary injunction is made, and the return day of the subpoena is 20 days subsequent to the expiration of the patent, and no special circumstances are shown which would make the accounting so intricate as to render an action at law inadequate. In such case a mere allegation that complainant has no adequate remedy at law will not confer jurisdiction in equity.

These were four suits in equity brought by the Overweight Counterbalance Elevator Company against the Standard Elevator & Manufacturing Company, the Eaton & Prince Company and others, the Crane Elevator Company, and the J. W. Reedy Elevator Manufacturing Company, respectively, for alleged infringement of a patent. The cause was heard on demurrer to the bill for want of equity jurisdiction.

Charles M. Peck and John W. Hill, for complainants. · Brown & Darby, for defendants.

KOHLSAAT, District Judge. The above four equity suits were commenced 10 days prior to the expiration of the patent. The only substantial ground of equity jurisdiction is the prayer for injunc tion, preliminary and permanent, although the usual prayer for discovery and accounting is contained in each bill. The return day of the subpoena in each case was 20 days subsequent to the expiration of the patent. No motion for a preliminary injunction was made. The authorities are fairly uniform that, under such circumstances, complainants will not be permitted to invoke equity jurisdiction upon the mere pretext that an injunction is desired, when the right is at most a technical one, which would only under most unusual circumstances be enforced by the court. Prior to the modern liberality in proceedings at law, courts of equity were prone to assume jurisdiction upon mere technical pretexts; but nowadays the tendency is to remit the parties to their remedies at law, unless some substantial ground of equity jurisdiction is presented. No special circumstances are shown in this case, over ordinary cases of account, which would make the accounting so intricate as to make a suit at law an inadequate and incomplete remedy, and nothing appears from the bill to show that adequate discovery cannot be had

at law. A mere allegation that complainant has no adequate remedy at law, unaccompanied by allegations of facts supporting the same, will not confer jurisdiction upon a court of equity. Without reviewing the authorities cited, it is sufficient to say that in each of the cases quoted from by either complainant or defendants it was either stated or intimated that the question was one to be left to the sound discretion of the chancellor, such discretion to be exercised in view of the facts of each particular case. The case of Clark v. Wooster, 119 U. S. 322, 7 Sup. Ct. 217, clearly states this doctrine, and the decision in that case has not since been modified. I hold that in the cases at bar no facts are disclosed by the bill which would cause the court to entertain jurisdiction in the first instance other than for the purpose of an injunction; and while there is no rule of this court which would prevent the granting of a preliminary injunction within 10 days after the filing of the bill, provided notice could be given to defendants, yet, under the practice of this court, extraordinary circumstances would have to be shown to cause the court to take such action. No such circumstances are disclosed by the bill. No affidavits were presented showing such circumstances, and no attempt was made to procure an injunction, and under the ordinary proceedings of this court, as a matter of practice, the injunction could not have been obtained. While these considerations are not presented on the face of the bill and demurrer, yet they are circumstances which influence the decision of the court in the exercise of its discretion. Believing that the technical ground of equity jurisdiction invoked was merely a pretext for avoiding an action at law, and there being an adequate remedy at law, the demurrer is sustained and the bill dismissed in each case.

LOUDEN MACHINERY CO. v. MONTGOMERY WARD & CO.

(Circuit Court, N. D. Illinois, N. D. July 19, 1899.)

No. 25,080.

PATENTS-PLEADING-MULTIFARIOUSNESS.

A bill based on a number of patents covering devices which are sold separately, used in various relations, and applicable to numerous uses and combinations, so that no one machine uses them all, and any of the patents might be infringed without infringing any of the others, is practically a bill for relief as to each of the patented articles separately, and is therefore bad for multifariousness.

This was a suit in equity by the Louden Machinery Company against Montgomery Ward & Co. for alleged infringement of certain patents for inventions. The cause was heard on demurrer to the bill on the ground of multifariousness.

A. B. & M. A. McCoid, for complainant.

George P. Merrick and Erwin, Wheeler & Wheeler, for defendants.

KOHLSAAT, District Judge. The bill in this cause is filed to restrain the defendant from making, using, or selling, or causing to

be made, used, or sold, any machine or apparatus or farming implement or hay elevator containing or employing any one or part of any one of the inventions covered by letters patent numbered 271,276, 300,687, 317,109, 345,229, 393,940, 393,941, 397,124, 434,544, 444,546, 481,263, 485,511, 493,276, 539,524, and 610,865. The several patented devices are sold separately, and used in various relations. No one machine uses them all at one time. They consist of that class of articles which are applicable to numerous uses and combinations. Any of the patents might be infringed without infringing any of the others. The bill does not seek to restrain the infringement of any specific combination. Practically the court is asked to grant relief as to each of the patented articles separately. I find that the case as presented does not come within the rule which permits a plurality of patents to be sued upon in one action, where the inventions covered by those patents are embodied in one infringing process, machine, manufacture, or composition of matter. The bill is multifarious, and the demurrer is sustained.

PERRY V. NOYES et al.

(Circuit Court, N. D. Illinois, N. D. July 27, 1899.)

No. 25,175.

PATENTS-EQUITY JURISDICTION-SUIT FOR ROYALTIES.

A court of equity cannot take cognizance of a suit simply for the purpose of construing the meaning or scope of a patent; and if the ultimate object sought is the payment of royalties, and the suit is essentially based on the contract, the bill must be dismissed, though a discovery and an accounting are prayed for in respect to such royalties.

This was a suit in equity by Perry against Noyes and others to recover royalties for the use of a patented invention.

Charles S. Burton, for complainant.

Ludington & Jones, W. Clyde Jones, and Robert H. Parkinson, for defendants.

KOHLSAAT, District Judge. The bill in this suit does not state a case of which a court of equity has cognizance. There is no precedent or authority for a court of equity taking cognizance of a case simply for the purpose of construing the meaning or scope of letters patent. The discovery, accounting, and payment of royalties prayed for would not give a court of equity jurisdiction. Under the facts presented by the bill, complainant's remedy would be at law, even granting his right to bring suit in the federal courts. The ultimate object sought is the payment of royalties. The suit is essentially one on the contract. I do not recognize the distinction sought to be shown by complainant in the wording of the decisions cited. In view of the authorities, I hold that a suit on a contract of license under letters patent is not a suit crising under the patent laws; and, while complainant has ingeniously worded his pleadings so as to fairly disguise the fact, yet I hold that under the facts alleged