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together, by taking hold of any part of it, as the patented structure can be. The result is attained of separating the threads into more skeins than one, and of allowing of the convenient separation of the skeins, and there is the continuous winding. But there is nothing which can be called "a card” in the sense of the plaintiffs' card, and in the sense of the description in the original specification, nor are there any sections of a card.

It is shown by the testimony of McCauley that it was old to put up cord by winding a given length on a notched piece of board, and then continuing the cord to another notched piece of board, and winding an equal length of the cord on that, and so on to the number of a dozen; and that he had known of this being done for at least 20 years iu New York, with Butler & Pitkin, 356 Broadway, who subsequently became Butler, Pitkin & Co., 476 Broadway. It is shown by the testimony of John E. Read, a member of the firm of Howard, Sanger & Co., of New York, dealers in fancy goods, and who has been in that business for 28 years continuously, that for over 20 years past he has known of fishing lines put up on notched boards and continued from one board to another. The testimony of these two witnesses was objected to on the record as “not within the pleadings." What this was intended to mean is not further stated in the record. It is too indefinite to be regarded. In argument it is contended that the testimony of McCauley and that of Read are inadmissible, because knowledge by them is not set up in the answer. But the answer sets up that the patented invention was before known by Edwin T. Butler, of “Butler & Pitkin, in business at No. 356 Broadway, New York city,” and by "Howard & Sanger, in business at No. — Broadway, New York city;" and that the patented method of having one continuous thread in skeins of two and more, substantially as described in the reissue, was known to the following persons, and at the following times and places, to-wit: “Butler, Pitkin & Co., 356 Broadway, New York city, more than 10 years past; Howard, Sanger & Co., 462 Broadway, New York city, more than 10 years past.”

The statute (Rev. St. § 4920) does not require the names of witnesses to be given, but only the names of those who knew of the thing, and where they can be found, and where and by whom the thing was used. Aside from the want of point in the objection stated on the record, the notice in the answer was sufficient to admit the testimony of the two witnesses. The testimony of McCauley was also objected to, on the record, as immaterial; and that of Read as irrelevant. The testimony was material and relevant as tending to show that the

defendant's structure existed before the patented invention, and therefore that the defendant's structure was not the same as the plaintiffs'. In this view no notice in the answer was necessary as to names, as the testimony was admissible under the issue of noninfringement.

Nothing is shown to invalidate the plaintiff's reissue, properly construed; but, in view of the original patent, the reissue cannot be so construed as to cover the defendant's device. Moreover, the existence of the devices testified to by McCauley and Read requires that the reissue shall be limited to covering sections strictly attached and requiring cutting to detach them; and, in view of such limitation, the defendant has done no more than was done before. Putting in the cross-pieces to keep the detached pieces in position is not within the patented invention.

The bill is dismissed, with costs.

COLLIGNON and others v. HAYES.

'Circuit Court, N. D. New York. May 7, 1881.)

1. LETTERS PATENT_FOLDING CHAIRS—INFRINGEMENT.

Letters patent No. 96,778, for an improvement in folding chairs, granted November 16, 1869, to Claudius O. and Nicholas Collignon, are infringed, as to claim 1, by chairs made under and in accordance with letters patent No. 221,

062, granted to the defendant, October 28, 1879. 2. INFRINGEMENT-FORMAL CHANGES.

Where the same result is effected by corresponding parts and by an identity

in the mode of operation, mere formal changes will not avoid infringement. 3. PRELIMINARY INJUNCTION-DELAY.

Where the patentee gave prompt notice to an infringer to cease infringing, and, in the period of two years intervening between the time when the fact of the infringement first became known to him and the date of the commencement of legal proceedings, repeated the notice three times, and where, during this time, the business engagements of the patentee were many and pressing, and no affirmative encouragement was ever given by him to the infringer, held, that the right to a preliminary injunction, in a case otherwise plain, will not be affected by the delay.

Blair, Snow & Rudd, for plaintiff.
R. H. Duell, for defendant.

BLATCHFORD, C. J. This is a motion for a preliminary injunction, founded on letters patent No. 96,778, granted November 16, 1869, (erroneously stated in the bill as October 16, 1879,) to Nicholas Collignon and Claudius 0. Collignon, for an "improvement in folding chairs." The specification says:

“This invention relates to chairs which fold up into a small space, whereby they are rendered much more convenient for transportation and storage than chairs of ordinary construction, and consists in the peculiar arrangement and combination of parts, as hereinafter more fully described. In the accompanying sheet of drawing, figure 1 represents a side elevation of the chair, as when ready for use. Figure 2 shows the chair folded up. Figure 3 is a backside elevation. Similar letters of reference indicate corresponding parts. A is the back, the sides of which extend to the floor and form the front legs, B B. C C are the back legs. D represents the seat, and A represents a brace in each side, which is pivoted to the front and back legs, as seen in the drawing. The seat is pivoted or jointed to the side pieces which form the back and front legs, as seen at f, and to the back or rear legs, as seen at g. These joints may be formed by short pivots or bolts, or by rods extending across from leg to leg of the chair, as may be deemed best. A suitable number of rounds, h, may connect the back legs, C, and also the front legs, B, together.

It will be seen that when the seat is raised the upper ends of the back legs (against which the back of the chair bears in supporting a weight on the chair) are thrown down, and the lower ends are thrown up, and the chair will fold together, as seen in figure 2, thus rendering the chair much more useful than ordinary chairs, as it may be laid away when not in use, and may be packed in boxes or in bundles, for transportation. *

* * The ends of the back legs may be provided with pins, which shall enter holes in the back, where the bearing comes, as at r, should it be considered best to do so."

His claims are:

“(1) The seat, D, pivoted to the front leg, B, and at its rear, and to the back legs, C, whereby the several parts are adapted to be folded together as herein shown and described, for the purpose specified. (2) In combination with the above, the brace, E, arranged to operate substantially as described.”

The defendant constructs and sells folding chairs made in accordance with the letters patent No. 221,062, granted to him October 28, 1879. It is alleged that chairs so made infringe claim 1 of the plaintiff's patent. It is plain that that claim relates to the pivoting together, in the manner shown, of the parts named in the claim, in such manner that the parts can fold together, and the chair become a folded chair. The parts named are the seat, D, the front legs, B, and the back legs, C. The side rail of the seat on each side is pivoted to the front leg at a point in such side rail intermediate between the front end and the rear end of such side rail, and at a point in such front leg intermediate between the top and the bottom of such front leg; and such side rail on each side is pivoted at its rear end to a point in the back leg near the upper end thereof. By raising such side rails towards the back of the chair, the upper ends of the back legs are

v. 8, no.12-58

thrown down and the lower ends of such back legs are thrown up, and such side rails, the back, the front legs, and the back legs, are thus folded together. Corresponding parts are pivoted together, and will fold together in a like way, and by an identical mode of operation, in the defendant's chair. The piece, D, in the defendants' chair, which extends from the front cross round, J, at the forward end of that piece, to the upper part of the back leg, E, to which it is jointed by the working joint, M, corresponds to the side rail of the seat, D, in the plaintiffs' chair, which extends from the front cross-piece at the forward end of such side rail to the upper part of the back leg, C, to which it is jointed at g. In the defendant's, the piece, D, is, at a point in it intermediate between the front cross round, J, and the back leg, C, pivoted to the front leg, E, by the working joint, G, at a point intermediate between the top and the bottom of such front leg. In the plaintiffs', the side rail of the seat, D, is, at a point in it intermediate between the front cross piece at its forward end and the back leg, c, jointed to the front leg, B, at f, which is a point intermediate between the top and the bottom of such front leg. In the defendant's, when the pieces, D, are raised towards the back of the chair, the upper ends of the back legs, E, are thrown down, and the lower ends of such back legs are thrown up, and the pieces, D, the back, A, the front legs, C, and the back legs, E, are thus folded together.

The specification of the defendant's patent says that “the chair is folded by raising up the seat and pulling up the rockers." The raising up of the seat is effected by raising up the piece, D, towards the back of the chair. Raising up the piece, D, in the defendant's, and the side rail of the seat in the plaintiff's, effects the folding to an equal extent. It does not avoid infringement of claim 1 that the defendant changes the direction of the piece, D, so as to form a greater forward angle with the direction of the back leg, when the chair is fully unfolded, than the angle formed in like case by the side rail of the plaintiffs' seat, with the direction of his back leg, or that the place of sitting in the defendant's, instead of being at the same angle as the angle of the pieces, D, (as the plaintiffs' place of sitting is at the same angle as the side rails of his seat, D,) is made to be at a proper level or angle, by stretching a flexible seat from the front cross round, J, to the round I, which latter round is elevated above the jointing places, G and M. All the opinions as to non-infringement, expressed by witnesses for the defendant, are based on an erroneous view of the plaintiff's patent, and on the idea that because the plaintiffs' patent speaks of the seat, D, as pivoted, and its side rails are pivoted, and the sitting part is in the plane with such side rails, and as the defendant's sitting part, N, is flexible and of carpet or leather, so as to fold, and as N is not pivoted to the back legs at all, and is connected only at its back end to the round, I, in the front leg, C, therefore the defendant has no seat pivoted as in claim 1 of the plaintiffs' patent. This view overlooks the identity of the piece, D, in the defendant's folding mechanism, with the side rail of the plaintiff's seat in his folding mechanism.

The plaintiff shows that the defendant has made and sold chairs constructed in accordance with the drawings of the defendant's patent. This is not denied by the defendant. Claim 1 of the plaintiffs' patent does not cover the entirety of either claim of the defendant's patent; and to make a structure in accordance with the description and drawings of the defendant's patent infringes claim 1 of the plaintiffs' patent. Either claim in the defendant's patent may be valid as a whole, and yet there may be no right to make the whole structure shown in its drawings without a license under the plaintiffs' patent.

Vaill's patent, No. 38,132, of April 7, 1863, does not; nor does Exhibit No. 3, purporting to represent it; nor does Exhibit No. 4, purporting to represent Crain's patent, No. 13,479, of August 21, 1855; nor does that patent; nor does any other prior patent referred to,-show what is found in claim 1 of the plaintiffs' patent, and in the defendant's structure, in the view above set forth.

The plaintiffs make no claim that model No. 1, presented by the defendant, infringes their patent.

The general assertion of the defendant and others that folding chairs, like those described in the plaintiffs' patent, were known and used before the invention of the Collignons was made, is not supported by a particle of evidence. No prior article is shown or described. The plaintiff C. O. Collignon shows that he and the other joint inventor, his brother, who died in June, 1880, or he and his said brother's executors, have always owned the patent; that they have been, since 1869, making chairs with the improvements covered by it, and have never been interfered with except by the defendant; that their business in such chairs is to the extent of about $30,000 worth per year; that they have two licensees who pay them royalties; that the licensees complain of the defendant's infringement, and the license fees are endangered thereby; that he, C. 0. Collignon, first learned of the defendant's infringement in 1878, and promptly notified him to cease infringing, and has repeated such notice three times since; that soon after the first notice his brother became seriously ill and

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