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of one of the appellants what were the ingredients of the medicine, that the witness was instructed not to answer; and that when the further questions were put of what particular herb houses or firms the herbs were purchased, the witness was again instructed not to answer; from which the Master draws the inference that the herbs were not, in fact, imported; otherwise the questions would have been answered.
But all the facts of this case borne in mind, the inference drawn by the Master is not tenable. True, the witness may have been instructed not to answer, because a truthful answer would have divulged that no part of the herbs were in fact imported, or would have given a clue to the names of witnesses from whom that testimony might have been obtained. But it is equally obvious that the motive of the refusal to answer might have been an apprehension that if the ingredients were disclosed, or there was disclosed the names of the people from whom the ingredients were purchased, the whole value of the medicine as a secret preparation would be destroyed-a danger that the appellant was not willing to incur unless ordered by the court. And though a motion to compel an answer was filed, the hearing of that motion was continued to the final hearing, at which time it was not pressed. Now it is the right of a witness, apprehensive that some wrong will be done to his personal or property rights, to refuse to answer to a Master, any question propounded, and to stand upon that refusal until the question raised has been determined by the court; and when such refusal is followed by the failure of the other party to press the question in court, the legal inference is not that the facts are as the proponent claims them, but rather, the proponent failing to press the motion, that he acquiesces in the right of the witness to refuse to answer—the record thereafter standing as if no such question had been put.
It is true, too, that in their advertising, appellant advised the public not to inquire for the Alpenkrauter at drug stores. But this does not justify, it seems to us, the inference drawn by the Master that it was meant as counsel not to consult a physician, and to ignore the recommendations of a trained pharmacist--the plain motive for the suggestion being, that the Alpenkrauter was not on sale at drug stores, and that to inquire for it would result in no purchase of appellant's medicine, but might lead to the inquirer's being induced to purchase something else. Surely, so long as proprietary medicines are lawful commerce, precautions of this kind, obviously commercial, are not within the doctrine of unclean hands.
That the whole traffic in proprietary medicines may be injurious to the public; that remedies, the ingredients and formula of which are secret, should be forbidden; that the sick and ailing should be protected against every offer of help except those coming from licensed physicians and pharmacists, are each questions that the public can take up and decide for itself, through the legislative branches of its governments; but that not having been done as yet, by the public will thus expressed, it does not seem to us that the facts in the record before us furnish a reason why the courts should formulate a public
policy, or withhold the aid of the law to protect this commerce, as yet lawful, against the unlawful piracy of another.
The decree appealed from will be reversed, with instructiuns to grant the injunction as prayed for in the bill.
JAYNE et al. v. LODER.
Under amended rule 23 (150 Fed. xxxii, 79 C. C. A. xxxil) of the rules of the Circuit Court of Appeals for the Third Circuit, which provides that, In case of reversal, affirmance, or dismissal with costs, the amount paid for printing the record shall be taxed against the party against whom costs are given, the cost of such printing is so taxable, although it was done at the instance of the plaintiff in error and not of the clerk, as contemplated by the rule, where the record as so printed was accepted by
the clerk, and no timely objection was made, On Appeal from Taxation of Costs. For former opinion, see 149 Fed. 21.
Before GRAY and DALLAS, Circuit Judges, and ARCHBALD, District Judge.
DALLAS, Circuit Judge. Our decision in this case was one of reversal, with costs, and therefore, at least prima facie, the plaintiffs in error were entitled to have the amount paid for printing the record taxed against the defendant in error; for rule 23 (150 Fed. xxxii, 79 C. C. A. xxxii), since its amendment, as well as before, contains this unequivocal provision:
"In case of reversal, affirmance or dismissal, with costs, the amount paid for printing the record shall be taxed against the party against whom costs are given."
That this clause would not have been retained when rule 23 was altered if it had been intended that thereafter the cost of printing the record should not be taxed against the losing party is, as an abstract proposition, unquestionable; but it is contended that the amount paid for this particular printing is not so taxable, because it was done at the instance of the plaintiffs in error, as the original rule had prescribed, instead of being “caused” by the clerk, as the amended rule directs. The order of December 7, 1893, did make the clerk responsible for the correct printing of the record, but it made no change whatever in the ultimate liability for its cost. In the present case the clerk accepted copies supplied by counsel for the plaintiffs in error; but to this no timely objection was made, and none will now be considered. We must assume that, if they had been printed under his own supervision, the expense would have been the same.
There does not appear to be any substantial controversy respecting the amount to be allowed, and upon the general question presented enough has been said to show that the taxation of costs now appealed from should be recommitted to the clerk for correction in accordance with this opinion; and it is so ordered.
the clerk Change whaterke accepted
HOUGHTON V. WHITIN MACHINE WORKS.
No. 638. 1. PATENTS-REISSUE-INVENTION—THREAD-GUIDES FOR SPINNING MACHINES.
The Houghton reissued patent, No. 12,263 (original No. 753,577), for an improved thread-guide for spinning or twisting machines, was applied for within about four months after the granting of the original patent, which was within a reasonable time, and, in view of the broadened claims which were necessary to cover the actual invention, was a proper reissue. The improvement of the patent, which consists in substituting, for the wooden finger-heads of the prior art, heads made of metal accurately hinged and properly adjusted to a vertical metal strip secured to the face of a doffingrail, making it possible to change the thread-guide from soft to hard wire, permitting an accurate adjustment of metal parts at the outset, and under such conditions as to secure continued accuracy of position in operation, constitutes a positive advance in the practical art of cotton spinning and twisting, and discloses invention of such character as to relieve the patent in a measure from the operation of the narrow rules of construction which apply to improvement patents that only slightly advance the
art. Claims 1, 2, 3, and 4, also, held infringed. 2. SAME-INVENTION-SUBSTITUTION OF MATERIALS.
While the mere substitution of one material for another in a structure does not constitute invention, it is something to be considered on that issue, where it makes possible changes in other elements of a combination to produce improved operation.
(Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Patents, $ 23.) Appeal from the Circuit Court of the United States for the District of Massachusetts.
William K. Richardson and Louis W. Southgate, for appellant. · William A. Jenner, for appellee.
Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.
ALDRICH, District Judge. The patent in suit relates to cotton manufacturing, and the invention in question is for an improved thread-guide for spinning or twisting machines, and for an improved form of thread-guide support. It is a reissue patent, granted August 23, 1904, and numbered 12,263. The original patent was granted March 1, 1904, and numbered 753,577, and the application for reissue was filed July 16, 1904, about 41/2 months after the original patent was granted.
Claim 4 of the reissue patent is precisely like claim 1 of the original patent of March 1, 1904. The proofs are only directed against the defendant as infringing claims 1, 2, 3, and 4 of the reissue patent. There is no substantial controversy about infringement so far as it relates to claims 1, 2, and 3; but infringement of claim 4 was disputed.
The reissue patent was attacked both upon the ground that it was invalid as a reissue, and upon the ground that its first four claims in suit did not involve invention.
We will first consider the question whether the reissue patent in suit involves invention.
We think it does.
Though the patent in its adaptation of parts involves the original and novel idea of a sheet-metal strip to which the finger-heads are attached, it is, after all, in substance and in its general effect, a patent for an improved combination of old elements in a mechanical arrangement which at once advances the art in a new direction. What the adaptation does in practical operation upon widely used machines in cotton spinning and twisting, old and new machines alike, as compared with the older adaptations, goes far towards demonstrating the fact of invention. Though the patent is for an improved thread-guide and an improved thread-guide support, rather than for a new and original discovery, its practical success is such as to entitle it to favorable consideration, and to relieve it in a measure from the operation of the narrow rules of construction which ordinarily apply to patents for improvements which only slightly advance the art, and accomplish only unimportant and inconsiderable results.
In the older art, the adaptation of construction can hardly be said to have approached the combination in question in simplicity and necessary accuracy of position of parts in operation. The following is a fair illustration of the old construction in common use:
It will be seen that, among the old constructions in use, there was a finger-head board or doffing-rail, which was hinged to the framework of the machine. To this individual blocks of wood, or threadboard supports for the thread-guide, were hinged, and into the projecting face of the finger-head, or block, a metal thread-guide was screw-threaded and adjusted to guide the thread. In practical operation, precision of position with respect to the axis of the spindle is necessary. The requirements of accuracy of adjustment in this respect are so arbitrary as to put out of question the use of hardened or rigid wire bent into pigtails as thread-guides, both in the process of original adjustment and in the process of readjustment when the same get out of position in operation. This is so because, when the
thread-guide is screwed into the finger-head, it is found not to be in the necessary exact adjustment for properly guiding the thread, and so must be bent in order to bring the eye of the guide in proper relation with the axis of the spindle; and, in practical operation, the guide gets out of position, and must be bent or turned back in order to properly do its work. This being so, soft or relatively flexible wire, as distinguished from spring-tempered wire, was used, in order that it might be restored to its position of usefulness by bending or hammering, or by hand manipulation. . Moreover, in the old constructions in practical use, the finger-heads which carry the thread-guides are in large numbers individually attached directly to the doffing-rail by a hinge and screws.
The cut which follows represents well enough one of the old type with the thread-guide screwed into a wooden finger-head, and the
Zinger Head Boaud
oc Doffing Rail
thread-guide is represented by this cut as having been out of position, and as having been brought into position again by bending or other manipulation.
It would seem clear enough that upon cotton spinning and twisting machines carrying a large number of spindles, from which each thread under high speed must be accurately guided, greater security and precision than anything disclosed in the mechanisms of the older art was a thing needed in the work of spinning and twisting, and that industrial conditions required that, in the particular detail of guiding the thread from the spindle, the situation should be relieved from the clumsy and