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level with the flame, the chimney is abruptly enlarged outward, at or nearly at right angles, to any suitable degree, so as to afford a larger space for the flame to spread in; and this horizontal portion, c, forms a radiating surface, through which the light is freely reflected downward from this enlargement. The chimney tapers upwards towards the top at any suitable angle, where it may be of any desired size, the sides forming straight or nearly straight lines. By the above-described construction an unusually large and expanded flame is produced, which is not only very steady, but not easily blown out by a blast of air. The conical contraction upwards makes the draft regular and free from eddies, and, should a puff of smoke suddenly start upwards, it is not thrown against the inside of the chimney, but passes out freely without coming in contact therewith.”
The claim is as follows:
“A lamp chimney having an abrupt or nearly right-angled enlargement on, or nearly on, a level with the flame, in combination with the conical sides and contracted opening at the top, substantially as set forth.”
It is plain that the abrupt enlargement is required to be about on a level with the flame. In the drawing this result is secured by having a straight circular flange on the lower end of the chimney, which raises it up so that the abrupt enlargement is about on a level with the flame. If the chimney were sunk by dispensing with the straight flange, so as to bring the abrupt enlargement substantially below the level of the flame, the structure would not be within the claim.
The defence in the case is alleged want of novelty. Mayer testifies that while he was in the employment of Christopher Dorflinger, a glass manufacturer, from 1852 to 1862, Dorflinger made and sold “thousands of dozens” of lamp chimneys “having an abrupt rightangled, or nearly so, enlargement at or nearly on a level with the flame, with straight conical sides and contracted opening at the top;" and that they were packed and shipped away to customers. Not a chimney then made is produced, but a chimney freshly made (No. 5) is produced as showing what he says was then made. It is a chimney which contains the plaintiff's invention, if used with the enlargement about on a level with the flame. Mayer says that three sizes of the same shape were made by Dorflinger; that they were made in 1858 and part of 1859, by Dorflinger; and that they were made and sold from 1865 on by the witness and one Koelsch, as Mayer & Koelsch. He says that those made by Mayer & Koelsch had a lip on the bottomthat is, a horizontal lip, extending outwardly from the bottom of the straight circular flange; that they were made by Mayer & Koelsch for Henry Russell & Co., from wood models furnished by the latter, and were not made by them for any one else; and that they made about 2,000 packages of them from 1865 on, for at least 10 years. Mayer & Koelsch were both of them in the employ of Dorflinger in 1858 and 1859. Russell testifies that as early as 1865 Mayer & Koelsch made lamp chimneys for Henry Russell & Co. almost precisely like No.5, but with a shorter neck than No. 5, and with a lip at the base; that they made that shape for two years; that T. D. Moore & Co., a firm with which he (Russell) was clerk, bought in 1860 and 1861, from Dorflinger & Co., chimneys like No. 5, without the lip, which were used for the Dietz burner; and that Moore & Co. had such burners made for two years or more. When asked to give the names of parties to whom they were sold, he names Stanford & Co., of San Francisco and Melbourne, but no others. He testifies that those Russell & Co. had made by Mayer & Koelsch were fitted for other kinds of burners than the Dietz burner. None of these old chimneys are produced. No books or papers are produced containing any record evidence as to the shapes of these old chimneys. No testimony of any customer who bought any of them from Dorflinger, or from Russell & Co., is produced. Everything depends on unaided memory as to exact shape. Dorflinger, although his name is set up in the answer, was not produced, and no sufficient excuse was shown for not producing him.
Testimony to rebut this evidence of Mayer and of Russell appears in the case. Schneider, who says that he is acquainted with all chimneys which have been sold largely since 1861, says he never saw one like No. 5; that he sold the Dietz burner in large quantities, and chimneys for it; and that a bulb chimney was used for it, and no other chimney, so far as he knew. Tripp, familiar with chimneys from 1863, says he never saw a chimney like No. 5 before or during 1865; that he is familiar with the Dietz burner, and never saw any chimney like No. 5 sold in connection with that burner; and that prior to 1867 the shape the nearest he saw to the shape of No.5 was a bulb chimney, with a lip instead of a neck. Dietz, who made the Dietz burner, says he never knew of chimneys like No. 5 being sold in connection with it. Brox, who worked blowing glass for Dorflinger, in Dorflinger's factory, from 1857 to 1860, and from 1861 to 1866, says he does not remember seeing there a chimney like No. 5, with a square shoulder; that Mayer was employed in making pots for Dorflinger, in the pot-room; and that the only chimneys Dorflinger made were bulb chimneys and straight tubes. Morey, a dealer in lamp chimneys from 1858, says that he does not know any chimney like No.5, and that he never saw any chimney like Crosby's before Crosby's was introduced. Crosby, the inventor, acquainted with the lamp and chimney business since 1855, in Boston, New York, New Bedford,
Philadelphia, Pittsburgh, and Wheeling, says he never saw or heard of a chimney with the abrupt enlargement before his. Martin, acquainted with the lamp shade and chimney business for 30 years, in Boston and New York, and in New Jersey, and acquainted with the chimneys in the New York market from 1863 to 1867, says he never saw any chimney like No. 5 in the market. The plaintiff, familiar with lamp chimneys from 1864, says that no chimney with an abrupt enlargement at the base was introduced to the trade before 1873. In regard to chimneys alleged by Russell to have been sold to Stanford & Co., of San Francisco, Day, who has been acquainted with the lamp-chimney trade there since 1855, gives sketches of all the chimneys known in the San Francisco market from 1858 to 1868. No one of them is shown to contain the patented invention.
It is contended, for the defendant, that the positive testimony of Mayer and of Russell ought to outweigh the negative testimony in reply. The burden of proof is on the defendant to establish affirmatively the defence of want of novelty beyond a reasonable doubt. It is apparent that a chimney with a right-angled enlargement too low down does not meet Crosby's invention; and the evidence tends to show that all the chimneys made for Russell & Co. had short necks and lips, and that the enlargement was not up as high as the flame. The evidence also tends to show that the chimneys testified to as made by Dorflinger were bulb chimneys, for the Dietz burner, and not like Crosby's. On the whole evidence, it must be held that the defence is not established.
The testimony of Gillinder, Weidner, Bennett, and Brady was properly objected to as not rebutting, and because no foundation was laid in the answer for their evidence. Besides, it does not appear that either No. 6 or No. 7, or the Stella chimney, contains Crosby's invention.
The invention is shown to be useful, and infringement is proved. There must be a decree for the plaintiff and for a reference as to profits and damages, and for a perpetual injunction, with costs.
SUTRO and another v. MOLL.
(Circuit Court, 8. D. New York. February 18, 1881.)
1. LETTERS PATENT_IMPROVEMENT IN CORDS FOR WRAPPING THREAD.
Reissued letters patent No. 6,751, granted November 16, 1875, to Hugo Sutro, for an improvement in cords for wrapping thread, are not infringed by the
device of August Moll. 2. SAME_EXTENT OF THE PATENT.
In view of arrangements already in use, the reissue most he limited to cover. ing sections strictly attached and requring cultiug to delach them.
J. P. Fitch, for plaintiff.
BLATCHFORD, C. J. This suit is brought on reissued letters patent No. 6,751, granted to Hugo Sutro, November 16, 1875, for an "improvement in cords for wrapping thread,” the original patent, No. 130,672, having been granted to him August 20, 1872, and reissued to him, as No. 5,725, January 6, 1874. The following is the specification of reissue No. 6,751, including what is outside of brackets and what is inside of brackets, and omitting what is in italics :
“This invention relates to a new form for holding (and a new method of putting up] braided or other threads, and [it] consists in (pasteboard, card, or other equivalent material, notched] notching a card at the ends (so as to produce visible and accurate subdivisions of the skeins wound thereon; (and also in perforating or equivalently weakening or cutting such card lengthwise to allow convenient separation of any one or more of the sections of card with the thread or skein upon it.] This is for the purpose of keeping the skeins so fully separated that they cannot become entangled, and that they can-each skein containing a certain length of thread-be (separated) cut apart with their sections of card, (so as] to furnish a desired measure of thread or braid. A, in the drawing, represents the card (or form] around which the braided or plain thread, cord, or tape is wound lengthwise. The ends of this card are notched, as at a a, in figure 1, there being as many notches as there are to be skeins or separate subdivisions wound about the card. In this manner the card is subdivided into a series of narrow sections, 6 b, (each) all containing [a certain] equal (quantity] quantities of the fabric, the projecting prongs, d d, between the recesses, a, keeping the several skeins properly separated. The card may be perforated (or otherwise equivalently weakened or cut] lengthwise [along a line or lines, indicated by the broken line or lines in figure 1 of the drawings, so as] to allow convenient [separation] detachment of any one or more of the (skeins with their sections of card, b,] sections, b, with the cord on it, so that, in retail trade, the skeins can be disposed of separately without requiring their unwinding and special measurement. The (fabric is] skeins on the card may be wound [in skeins of the desired length] upon [each of] the sections, b, [of the card, as described, and all or a part of the skeins remain connected together] so as to constitute (an
unbroken length] one continuous thread, cord, or tape, or else the skeins upon the card that is simply perforated, or otherwise equivalently weakened between the said sections, may be disconnected, so as to form] they may be independent [and] of each other; i. e., separate pieces (of the fabric upon] on the several sections, b. Thus put up, on any pattern card, the fabric, which may consist [in] of woven, braided, or twisted cord, tape, ribbon, braid, or thread, [wire, or any other narrow articles measured by the yard,] cannot tangle (twist or] nor soil, neither in the hands of the actual consumer, merchant, or manufacturer. Under the old style of putting up such goods they were very apt to become entangled, and, as they had to be separately measured in dealing out certain lengths, [they] their delicate tints were often soiled [and] or they were twisted out of shape.”
Reading in the foregoing what is outside of brackets and what is in italics, and omitting what is inside of brackets, we have the specification of the original patent. The claims of the reissue are as follows:
" (1) The device for holding thread, consisting of card-board notched at the ends, so as to separate said threads into two or more sections, or skeins, as set forth; (2) the device for holding thread, consisting of card-board, notched at the ends, and perforated lengthwise, so as to be formed into sections, to allow of convenient separation of the sections and skeins of thread, as and for the purpose set forth; (3) the improved method described of putting up thread, or any narrow fabric, in skeins, on card-board notched at the ends, by winding the fabric continuously from one notched section of the card-board to another, as and for the purpose set forth.”
The original patent had only one claim, as follows:
“ The device for holding thread, formed of a card, A, notched at the ends, so as to be formed into sections, bb, as set forth."
The putting up of the skeins by winding the fabric continuously from one section to another is found in the original specification. So, also, is the perforation of the card lengthwise. But the original does not suggest that the sections can be other than parts of the same continuous card, attached together only because and as parts of the same unit, and requiring detachment by the cutting or physical severing of the body of such unit in order to become sections. The reissue omits the cutting apart and detaching, and the expression "a card."
The defendant's arrangement, which is alleged to infringe, consists of detached pieces of notched card-board, with the fabric wound continuously from one to another, and then the pieces laid side by side, and two pieces of loose card-board laid crosswise of the first-named pieces between their upper faces and the lower sides of the wound fabric, so that the whole is capable of being taken up and moved