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disabled from business, and that up to his death, and since, he has had the entire care of their business, and in great part of his estate, and it was impossible for him to give the time and pains necessary for proceedings against the defendant. It is shown that the plaintiffs retained counsel in the early part of 1880, and sued the defendant on the patent, in New York city, in July, 1880, and moved for an injunction against him in November, 1880, but the suit was withdrawn because of a technical defect. The bill in this suit was filed in September, 1880, and the subpæna was served December 6, 1880. This motion was noticed for March 15, 1881, having been delayed because of business engagements of the plaintiffs' counsel. The foregoing facts are not contested.
The defendant shows that he began making chairs, such as his patent describes, in September, 1878, and applied for his patent June 21, 1879; that in September, 1879, he completed a building for the business, costing, with the land and the proper machinery, $12,000, and employs about 50 men at Cortland Village, New York, and that he is worth $25,000. What the defendant so did in respect to his new building was done after notice from the plaintiffs. Mere forbearance to sue, under the circumstances stated, after the notice given, cannot, in the absence of any affirmative encouragement to the defendant, be held to affect the plaintiffs' right to a preliminary injunction, in such a plain case as this is.
The plaintiffs show a case of acquiescence by the public sufficient to sustain a preliminary injunction. The defendant states generally that chairs claimed to infringe the plaintiffs' patent have been made, sold, and used in hostility to their right, “and, among others, by the Eureka Manufacturing Company, of Sterling, Illinois, who have made, sold, and advertised the said chair extensively without let or hindrance from the complainants.” No chair made or sold or advertised by the company named is produced; no advertisement is produced; what kind of chair is the one referred to, or what is meant by “the said chair," is not shown; there is no specific affidavit from which the court can see that the conclusion drawn is correct; and the statement is a statement of only a conclusion, and not of a fact which can be judicially considered. The other affidavits are even more general.
The case is a clear one, and one of irreparable damage to the plaintiffs, and not one where there would be as much probability of doing irreparable mischief as of preventing it by granting the injunction. The motion is granted.
WHITE ». E. P. GLEASON MANUFG Co.
(Circuit Court, 8. D. New York. April 28, 1881.) 1. LETTERS PATENT-GLOBE HOLDERS NOVELTY-INVALIDITY.
Reissued letters patent No. 7,286, for an improvement in globe holders, are invalid for want of novelty.
M. D. Conolly, for plaintiff.
WHEELER, D.J. This suit is brought upon letters patent reissue No. 7,286, the original of which was No.162,731, dated April 27,1875, entitled "An improvement in globe holders." The object of the invention is stated in the specification to be “to provide an elastic support or holder for globes or glass shades for gas-burners.” The principal defence relied upon is lack of novelty in the invention. Among other alleged anticipating devices, the defendant put in evidence a holder con. sisting of elastic arms, with hooks or catches at the upper ends for receiving and holding the globe, fastened to a tube or collar, to encircle and rest upon the burner for support, and marked "Exhibit CC." The patent has two claims: one for a globe-holder, having spring or elastic arms, made with curved or bent ends, forming hooks or catches for embracing the lower edge or flange around the lower opening of a globe; the other for "the improved globe-holder therein described, consisting of the disk or center, having aperture for the passage of a gas-burner and spring or elastic arms, terminating in hooked or curved ends for the purpose, substantially, as set forth.” It is claimed for the orator that each claim is susceptible of two constructions: one broad, and the other narrow,—the broad, in each, covering every form of globe-holder having elastic arms, and the narrow covering, by the first, only holders having elastic arms with the peculiar bent or curved ends for holding the globe, shown in the patent, and by the second, only holders with elastic arms riveted to a disk, center to rest on the fixtures, as described in the patent. As to this Exhibit CC, it is not claimed for the orator but that it shows the invention covered by the first claim, broadly construed, but is admitted that it does; nor but that it shows the invention covered by the second claim so construed; nor is it expressly claimed that there is anything covered by the first claim which this exhibit does not show. It is said, however, in the brief of the orator, that, “It does not, however, meet the second claim, under the limited construction suggested above, inasmuch as the base is a collar and not a disk, and the spring arms are not riveted thereto. The importance of this difference may be prop
erly stated here. The collar is designed to slip over or slide down to position on the burner. It is unprovided with any means of making it fast, and is quite obviously too insecure to permit its use to advantage. A mere touch will disturb its position and cause the globe sustained by it to topple over, lose its equilibrium, and fall. The flat center or disk of the complainant's patent, on the contrary, is designed and adapted to encircle the screw-shank of the gas fixture, and be there securely held against possibility of accidental disturbance by the burner, which is screwed down over it.”
This part of the case turns upon whether the patent covers these differences; for, if it does not, then this exhibit shows all of the orator's invention that is patented, and, if properly shown to have been known and used prior to the invention, anticipates it, although it may not show all that is mentioned or described in the patent, or all that it may be thought that the orator invented. In this view it is to be noticed that there is nothing in the patent about a flat center or disk designed and adapted to encircle the screw shank of the gas fixture, and be there securely held by the burner screwed down over it; nor any allusion to the disk, or to riveting the arms to it, as necessary, or otherwise, except that, in the description of the drawings, it is said that the “arms are to be fastened to the burner in any suitable manner, as by riveting to a disk having a central aperture through which the burner passes;” and in stating the advantages of making the arms in separate pieces, where it is said that "if they and the disk or hub, or an equivalent center, were all formed in one piece, considerable loss of material would be incurred;" and in the second claim, which, as before recited, is for “the improved globeholder herein described, consisting of the disk or center having aperture for the passage of a gas-burner, and spring or elastic arms, terminating in hooked or curved ends for the purpose, substantially as set forth.”
The patent is not for what is described, suggested, or hinted at anywhere in the patent, but is for what is fairly described somewhere, and covered by the claims of the patent, although the whole is to be looked at in order to ascertain what the claims do really cover, especially when the claims are like this second one, and are for the things mentioned in the claim, as set forth, or as described, or with other equivalent words, as is very common. This second claim, read with all the advantages of such construction, does not cover elastic arms with a disk merely, for, by its own words, it extends to a disk or center, and the center may not be a disk, although either must have an aperture for the passage of a gas-burner; and when the specification is looked to for the globe-holder, consisting of these
things substantially as described, it shows a globe-holder with elastic arms fastened to the burner in any suitable manner, as well as a globe-holder with elastic arms fastened to a disk to go on the fixtures; for both are substantially set forth. There could not be a patent for a globe-holder, with elastic arms and another feature combined, without describing the other feature as well as the arms, and also claiming it as a part of the invention. The patent cannot be held to cover anything more than a globe-holder with elastic arms, terminating in the curved ends for holding the globe, and a center with an aperture for the gas-burner, as the patentee said in the outset of his specification, “the same being designed as an improved substitute for the rigid holders with retaining screws heretofore employed.” So this exhibit, as it is conceded to be by the orator's counsel, fully covers all there is of the orator's invention that is patented.
It is also claimed, in behalf of the orator, that prior knowledge and use of that device are not shown with sufficient certainty to defeat a patent within the rule applied to this class of cases, and he cites the evidence of the witness Gleason, where he says, with reference to the Exhibit CC: "This particular globe-holder was sold to a man by the name of Brown, and used by him a number of years; his place of business being in West Houston street, New York,” as being the only evidence on the subject. If this was the only evidence it might not be sufficient; but it is not. At another place, in answer to the first cross-question, Gleason says they sold 20 or 30 gross of them in 1871 and in 1872. The witness Daley, a manufacturer and seller of gas-fixtures, says, in answer to the last direct question, that his firm has purchased and sold them since 1873; and the witness Dare, in an answer to the last question put to him, says that those like Exhibit GG in the printed record, obviously from the question meaning CC, and GG being a misprint, says that he manufactured them for the defendants either from 1867 or 1868 up to 1875, or in 1868 and 1869, and for four or five years. There is nothing in the case, other than the patent, showing the date of the invention. This evidence is not contradicted, and, standing thus, it shows satisfactorily, and beyond any fair or reasonable doubt, that globe-holders like Exhibit CC were well known and in use long before the orator's invention, and, in the language of the statute relating to defences, "that he was not the original and first inventor" "of the thing patented.” Section 4920.
Let a decree be entered dismissing the bill of complaint, with costs.
SINGER MANUF'G Co. v. HENRY STEWART MANUFG Co. and another.
(Circuit Court, 8. D. New York. May 9, 1881.)
1. LETTERS PATENT—NOVELTY-INVENTIVE SKILL.
Mechanism for adjusting the disks on the face plate of sewing machines by a thumb-screw on the top of the face plate, whereby the means of regulating the tension of the thread is accessible to the right hand, as well as to the left, of the operator, is novel and involves the exercise of sufficient skill to entitle
the inventor to a patent. 2. SAME-INFRINGEMENT-SUBSTITUTION OF EQUIVALENTS.
The substitution of well-known equivalents, for the minor parts of complicated mechanism, will not prevent infringement if the same result is accom
plished by the two machines in substantially the same way. 3. SAME-SEWING MACHINES INFRINGEMENT.
Letters patent No. 214,513 are infringed by a machine having a thumb-screw at the top of the face plate to adjust the tension of the thread by working a rigid lever of the first order inside the face plate; connected with the disks in the same manner as in the others, but having a coiled wire spring between the lever and thumb-screw to relieve against the latter's action.
WHEELER, D. J. In sewing machines having bracket-arms, tension was given to the thread by a thumb-screw on the face-plate, accessible with convenience to the left hand only of the operator, working a lever of the third order, made elastic to relieve against the action of the thumb-screw, and connected by a standard passing through the inner with the outer one of the two discs, on the face-plate, between which the thread passed. Lebbens Baldwin Miller continued to adjust the discs by a thumb-screw on the top of the face-plate, readily accessible to the right hand as well as to the left of the operator, working an elastic lever of the first order inside the face-plate, and connected in the same manner as the other with the discs. He took out letters patent No. 214,513, for this improvement, which the orator owns. The defendants make and sell such sewing machines, having a thumb-screw at the top of the face-plate to adjust the tension of the thread by working a rigid lever of the first order inside the face-plate, connected with the discs in the same manner as the others; but having a coiled wire spring between the lever and thumbscrew to relieve against the action of the thumb-screw. This suit is brought upon the patent against this manufacture and sale as an infringement. Two questions are made: one is whether the change accomplished by Miller involved sufficient novelty and skill to amount