invention, and which is recognized as being merely the improvement due to use of the machine. If these views of the actual working of the dampers manufactured under the Farwell patent, as compared with the working of the dampers manufactured according to the claims of the Ohnermus and Sanner patent, are substantially correct, there seems to be no escape from the conclusion that the latter must be held to infringe upon the combination protected by the Farwell patent.

In considering the question presented for determination I have viewed the same from the position taken by counsel for the defendant company, which is that the dampers manufactured by the defendant company were so manufactured under the rights conferred by the patent to Ohnermus and Sanner, the defendant claiming in the arguiment and brief to hold a license from such patentees, although it is not so averred in the answer; and, so viewing the case, the conclusion reached, as already stated, is that the defendant company, in the manufacture and sale of the dampers modeled in the form of those described in the patent to Anton Ohnermus and Henry Sanner, have infringed upon the rights of complainants secured to them by the letters patent No. 493,548, and the usual decree for an injunction and accounting in favor of complainants must be granted.

WHITE v. PEERLESS RUBBER MFG. CO.

(Circuit Court, W. D. Pennsylvania. September 26, 1901.)

1. PATENTS-INFRINGEMENT.

No. 15.

One who appropriates a patented invention so as to gain imperfectly and to a limited extent only the advantages thereof, does not thereby free himself from infringement.

2. SAME-PACKING.

The White patent, No. 337,000, for a packing, consisting of a tubular, nonelastic core, capable of being bent or flattened, incased in an elastic tube, held valid and infringed.

In Equity. Suit for infringement of patent. On final hearing. James Bredin and Christy & Christy, for complainant.

Dickerson & Brown and Ernest Hopkinson, for respondent.

BUFFINGTON, District Judge. Complainant charges infringement of both claims of his patent No. 337,000, dated March 2, 1886, for packing. The claims are as follows:

"(1) As a new article of manufacture, a packing consisting essentially of a tubular, practically nonelastic core capable of being bent or flattened, and a casing or covering of elastic material adapted to constitute a seal, substantially as described. (2) As a new article of manufacture, a packing consisting of a tubular lead core incased in a tube of rubber, substantially as described."

While the patent concedes the value of lead and rubber combined as packing material was known, yet no such combination as White's, viz. a tubular lead core incased in a tube of rubber, is shown to have existed prior to this patent. The prima facies of novelty and pat

entability arising from the grant of the patent have not been overcome. The utility of such a device is shown in several statements made by respondent's expert. The testimony of Logan is positive of its efficiency in actual use, and is not controverted. The fact that White did not manufacture under his patent, the reason for which is shown, did not lessen the intrinsic worth of the device, and will not deprive him of the monopoly granted him for what is now proved to be a meritorious combination. The respondent company sells a packing which, when in use, consists of a section of rubber tubing and a short section of tubular lead core introduced into each end of the tubing to form a joint, which joint is tightly wrapped with a rubber band. As thus fitted for operative use, the respondent company has at the joint a tubular lead core incased in a rubber tube, and for the rest of the packing a rubber tube alone. In the joint section it thus uses the combination of the second claim, viz. “a packing consisting of a tubular lead core incased in a tube of rubber." It seeks to escape the consequences of the use of this combination by the fact that the lead tube does not extend through the entire length of the rubber tube. While White points out certain advantages resulting from carrying the lead through the entire length of the rubber, yet there is no limitation in his claim which compels him to so extend it. While such construction is not suggested in the patent, yet nothing is stated which precludes the use of a section of rubber tubing as a section of packing in conjunction with another section, where the rubber and lead tubes are used conjointly. White shows a ring construction and a straight construction as well, but neither form is made an element of the claims. The claim is for "a packing consisting essentially of a tubular, practically nonelastic core, capable of being bent or flattened, and a casing or covering of elastic material adapted to constitute a seal." Respondent uses such tubular, nonelastic core. It is capable of being bent or flattened. Because of the particular construction used, it does not avail itself of the lead's capacity to bend and maintain an angular position, as does White, to make the packing conform to the angular shape of a particular joint, but it does avail itself of the tubular, nonelastic, and flattening capabilities of the lead in conjoint use with the rubber to secure, at the point where it uses the combination, a tight joint, just as White does, and by use of the two elements in the relation first shown by White. If this section of respondent's packer be located at the most vulnerable point, to wit, where the surfaces are uneven, it is evident that the action of the compressible lead tube and the sealing rubber is exactly that detailed by respondent's expert as a feature of White's patent, viz.:

"I also recognize the correctness of the statement as to the conjoint action of the lead core and rubber casing, as in fact the rubber is compressed tightly between the opposite faces of the flattened lead core and the faces or seats of the joint; and if the latter are irregular, or not perfectly flat, the lead core against which the rubber is pressed will be caused to conformi to the shape of the surface against which it rests, that is, the surface of the rubber,which also conforms to the surface of the seat. The space between the seats is thus completely filled by the closely compacted lead and rubber, even if such space is not regular in form."

At the joint, which is the most vulnerable place in the packing, and at the point where there are inequalities in the surface, which is the most difficult place to seal, the respondent uses the identical elements of White's combination operating in the same way. If it secure the same result as White by using his device where its use is essential and substantial and discards it where it is nonessential and immaterial, we must still hold, if the patent serves to substantially protect, that the respondent has taken the substance of White's device. We therefore hold the respondent an infringer, for one who appropriates an invention so as to gain imperfectly or to a limited extent the advantages which may be derived therefrom, does not thereby free himself from infringement. Sewall v. Jones, 91 U. S. 171, 23 L. Ed. 275, and cases cited. To the extent the respondent uses White's combination, to such an extent it acquires the full measure of benefit from it. Celluloid Mfg. Co. v. Chrolithion Collar & Cuff Co. (C. C.) 23 Fed. 397, is akin to this case. By using some of the complainant's packing, respondent uses enough to make it an infringer.

BURRILL et al. v. CROSSMAN et al.

(District Court, S. D. New York. October 21, 1901.) ADMIRALTY-PLEADING-AMENDMENT.

Where respondents in a suit in admiralty pleaded a special defense, which they permitted to stand in the same form during the litigation of the case in the district court, the circuit court of appeals (where new pleadings were filed), and the supreme court, by each of which it was considered and adjudged insufficient, they will not be given leave to amend the answer so as to present such defense in a new form after the cause has been remanded for a retrial upon another issue.

In Admiralty. On motion for leave to amend answer.
Black & Kneeland, for libelants.
Wheeler & Cortis, for respondents.

ADAMS, District Judge. This action was brought in 1894, by the owners of the bark Kate Burrill, against the charterers thereof, to recover 53 days' allowance of demurrage for detention of the bark in the port of Rio de Janeiro, Brazil, in September, October, and November, 1893. The bark was chartered in March, 1893, to carry a load of lumber to Rio. On the voyage out she lost a portion of the cargo by perils of the sea, and delivered the remainder during the said months. The answer to the libel, after some general denials, set up affirmatively, in the fourth article, that, under a cesser of liability clause contained in the charter, there was no liability on the part of the respondents; and, further, in the fifth article, that, owing to a state of war which prevailed in Brazil at the time, it was impossible to remove the cargo from the vessel any sooner than it was removed. Exceptions were filed to the answer by the libelants, to the general effect that the respondents had not answered fully and distinctly, and, further, to the sufficiency of the fourth

article, which set up the cesser clause, and to the fifth article, which set up vis major by reason of the state of war mentioned. The fourth and fifth, subsequently, in an amended answer, became the fifth and sixth articles. After lengthy proceedings in this court, the exception to the original fourth article was sustained, and the exception to the original fifth article was overruled. The libelants. thereupon moved for leave to withdraw the exception to the original fifth article of the answer, and to amend the libel so as to confess and avoid and explain the new matter set forth in that article of the answer. This motion was denied, and, after some testimony was taken, the libel was dismissed, with costs. 65 Fed. 104. The libelants then appealed to the circuit court of appeals, and assigned as error the overruling of their exception to the said fifth article of the answer, in denying libelants' motion for leave to withdraw the said exception, and in dismissing the libel. The libelants then moved in the court of appeals for leave to amend the libel in the manner moved for in this court, which motion was granted. An amended libel was then filed, which, in addition to the allegations in the original libel, alleged certain facts with respect to the anchorage of the vessel at Rio, her discharge there, proceedings touching an account, and want of authority on the part of any one there to enter into an accord and satisfaction of the demurrage in question. An answer was filed to this libel, substantially denying its allegations, and again setting up, in the fourteenth and fifteenth articles, the matters of cesser and war difficulties, which were the subjects of the fourth and fifth articles of the original answer. The answer, in the sixteenth article, also set up an accord and satisfaction, which the libelants had anticipated and denied. The libelants thereupon excepted, inter alia, to the fourteenth, fifteenth, and sixteenth articles of the answer, on the ground that they were insufficient in law to constitute a defense. The exception to the fourteenth article (original fourth) of the answer was sustained, the opinion of the district judge being adopted as a satisfactory discussion of the question involved. The exception to the fifteenth article was also sustained; and the exception to the sixteenth article overruled. 16 C. C. A. 381, 69 Fed. 747. Testimony by depositions in Brazil and New York was taken, and a decree was subsequently directed to be entered in the district court in favor of the libelants for the sum of $3,151, with costs. 33 C. C. A. 663, 91 Fed. 543. A writ of certiorari was then applied for by the respondents, and issued by the supreme court, to review the said decree of the circuit court of appeals. It was there determined (179 U. S. 100, 21 Sup. Ct. 38, 45 L. Ed. 106) that the decisions below sustaining the exception to the article of the answer setting up the cesser clause of the charter party as a defense were correct. It was also held that the questions of accord and satisfaction were rightfully determined below, on conflicting evidence. The decree, however, was reversed, on the ground that it was error to sustain the exception to the defense of state of war in Brazil or vis major, and the cause was remanded to this court for further proceedings in conformity with the opinion rendered.

111 F.-13

The cause is now again in this court, and the respondents move for leave to amend their amended answer, filed in the circuit court of appeals, by substituting a new "fourteenth" article.

The article in question reads as follows:

"Fourteenth. And, further answering, the respondent alleges that the charter party referred to in the libel herein contained a clause providing that the vessel should have an absolute lien upon the cargo for freight and demurrage, and that the charterers' responsibility should cease upon the loading of the cargo and signing of the bills of lading; that said vessel was fully laden, as alleged in the fourth article of the libel herein; and that thereafter, and long prior to the said 4th day of September, 1893 (the date upon which it is alleged in the fifth article of said libel that notice in writing was given to the agents of the respondents at Rio Janeiro that said vessel was ready to discharge her cargo), bills of lading of similar tenor for the whole of said cargo were duly signed by the master of said vessel, a copy of one of which is annexed hereto and made part hereof, and said bills of lading were duly assigned and delivered to the Companhia Industrial do Brazil, and by them assigned and delivered to Messrs. Manoel da Cruz & Filho, who thereby became the consignees of said cargo; and that thereupon all liability of these respondents to the owners of said vessel under said charter party ceased, and it became the duty of the master and owner of said vessel, upon the failure, alleged in the fifth article of said libel, of the consignees of said cargo to discharge the same at the agreed rate per day, to notify said consignee of the amount of the demurrage claimed by reason of said failure, and to hold said cargo until the same should have been paid, in accordance with the terms of the charter party.” The proposed new article reads as follows:

"Fourteenth. And, further answering, respondents allege that the charter party referred to in the libel herein contained a clause providing that the vessel should have an absolute lien upon the cargo for freight, dead freight, and demurrage, and that the charterers' responsibility should cease upon the loading of the cargo and signing of the bills of lading; that said vessel was fully laden, as alleged in the fourth article of the libel herein; and that thereafter, and long prior to the said 4th day of September, 1893 (the date upon which it is alleged in the fifth article of said libel that notice in writing was given to the agents of the respondents at Rio Janeiro that said vessel was ready to discharge her cargo), bills of lading of similar tenor for the whole of said cargo were duly signed by the master of said vessel, and said bills of lading were duly assigned and delivered to the Companhia Industrial do Brazil, which company was the owner of the lumber mentioned in said bills of lading, and had purchased the same from the respondents before the charter was made, and in December, 1892. Such charter was effected for the purpose of transporting said cargo of lumber from Pensacola to Rio Janeiro. The whole purpose of the issue of said bills of lading was to enable respondents to attach them, or one of them, to a draft for the purchase price of said lumber, which was drawn against a letter of credit issued by Jacob Walter & Co., of London, in favor of said Companhia Industrial do Brazil. Said draft was paid to respondents, and the lumber was delivered in Rio Janeiro to the purchaser thereof, said Companhia Industrial do Brazil, or to its order; and the function of said bills of lading was thereupon fully performed, and said Companhia Industrial do Brazil, or its vendee or agent, received the said lumber,-not by virtue of said bills of lading, but pursuant to said charter party and the consignment of said lumber to it."

The contention on the part of the respondents is that it appears by an expression in the opinion of the supreme court (page 109, 179 U. S., page 41, 21 Sup. Ct., and page 111, 45 L. Ed.) to the effect that, because it was not pleaded in the case that the indorsees of the bills of lading were the persons who had originally authorized.