The defendant also sets up against those claims English patent No. 444, to Gabriel Benda, dated October 19, 1852,-provisional specification filed that day; sealed April 16, 1853; full specification filed April 19, 1853,-for "improvements in apparatus for obtaining fire for smokers." The record shows that the attention of the patent-office was directed to the Benda patent in granting No. 8,490, and that the claims were amended in view of that patent. No expert witness for the defendant asserts that Benda is an anticipation. The Benda patent shows a case with a coil or strip of ignitable compound within it, so arranged as to be fed from the case by a feed-wheel, and when fed beyond the case it is ignited by bending it over and scraping it with the loose cover which serves, when the apparatus is not in use, to close the opening through which the strip is fed. There is not in any nose-piece projected beyond the passage for the match, and serving to uphold the match against the action of the igniting device. There is not any igniting device arranged parallel, or nearly so, with the passage through which the match goes to be ignited. There is no permanently attached igniter, acting in conjunction with such a nose-piece. Benda had a repeating match, and a toothed-wheel match-feeder, feeding the match through a nose-piece to the point of ignition, and something on which the match rested while being ignited by friction produced by hand through an igniting device; but the mechanisms of the two structures are different, and their parts do not co-operate in the same way to attain the result of an ignited match.

it

11. It is claimed that the defendant's apparatus infringes the first five claims of No. 8,490. The plaintiff's structure operates by the friction of the igniter made to move crosswise by the hand against the match. In the defendant's the feeding of the match raises a spring-hammer, which, when the pellet on the match is at the proper point, is released, and ignites the pellet by percussion. But the defendant's structure contains, nevertheless, all the elements which constitute the first five claims of No. 8,490. The differences between the two structures are formal and unsubstantial, in view of the state of the art and of the real invention of the patentees and of the claims of No. 8,490. No expert witness for the defendant testifies as to noninfringement. There may be features of improvement in the defendant's structure, but still it is an infringement. The same structure is alleged to infringe claims 1 and 2 of letters patent No. 206,835, granted August 6, 1878, to said Selden, for an "improvement in cigar lighters." The device described in that patent has a case

within which is coiled a strip of material having upon it ignitable pellets. This strip is fed out of the case by a feeding device, and, when one of the pellets has arrived at the proper position, it is struck by a hammer, and thereby lights a wick or flexible punk, which is contained in a tube which has a feeding device to govern the motion and position of the wick, and is provided with an extinguisher. The wick tube is so arranged in relation to the point of explosion of the successive pellets as to insure the lighting of the wick by such explosion when the extinguisher is removed from its closed position and the wick is fed forward by the feeding device. Claims 1 and 2 cf No. 206,835 are as follows:

"(1) In a pocket lighting device the combination of an adjustable percussion tape, ignited by any suitable mechanism; (2) in a pocket lighting device a box or case having a hammer capable of operation from the exterior, a wick duct or tube, means for feeding and exploding a pellet by the action of the hammer, and a wick feeder."

The "adjustable tinder" is described as a wick or flexible punk, placed in a tube and adapted to be fed forward or upward by a star wheel or other suitable device for that purpose. The "adjustable percussion tape" is described as fed forward by a pawl. A mechanism such as "a star wheel or other suitable device" to feed the wick is an essential element in claim 1. It is a necessary feature of the “adjustable tinder" of that claim. It is also a necessary element of claim 2 as "a wick feeder." In the defendant's structure there is no such mechanism. The wick is pulled by the hand in both directions without any feeding mechanism. Therefore, there is no infringement. There must be a decree for the plaintiffs, on the first five claims of No. 8,490, for an injunction and an account, with costs.

BERNARD and another v. HEIMANN and others.

(Circuit Court, S. D. New York. October 7, 1881.)

1. LETTERS PATENT-HEAD-COVERINGS-NOVELTY.

Letters patent granted to Robert Gray, September 9, 1879, for an improvement in head-coverings,-the claim being for a head-covering consisting of a support of buckram or the like, a top layer of flock, and a canton-flannel or other similar lining, substantially as and for the purpose described,-are not anticipated by the Kendall turban, Bracher's frame, the Morse hat, or the hats of 1876 of the Novelty Company.

S. J. Gordon, for plaintiffs.
J. H. Goodman, for defendants.

BLATCHFORD, C. J. This suit is brought on letters patent granted to Robert Gray, September 9, 1879, for an "improvement in headcoverings." The specification, which is accompanied by and refers to a drawing, which represents a sectional side view of a hat embodying the invention, says:

"This invention relates to the manufacture of hats, bonnets, or other headcoverings with a top layer of flock. Hats of this description have been made by applying the flock to a buckram support, but have invariably been stiff owing to the fact that in order to give the article the required body or strength it was necessary to use a heavy or thick piece of buckram. One objection to this hat is the stiffness referred to, it being desirable in some cases to furnish a soft hat, and another the visibility of the buckram tending to defeat the object of the flock-layer, which is to produce a felt-like article. My invention is a head-covering, consisting of a support of buckram or the like. a top layer of flock, and a canton-flannel or other similar lining, whereby the article is rendered capable of taking a soft finish, while both surfaces thereof have the appearance or semblance of felt-one of plain felt and the other of napped felt. In the drawing the letter A designates the support, B the flocklayer, and C the canton-flannel or other similar lining. In carrying out my invention I first cement the lining, C, to a piece of buckram, or other like fabric, by a suitable adhesive substance, with the nap of the lining exposed, and then press the two together in any usual or suitable manner to the desired shape. In lieu of canton flannel the fabric known as 'glove lining' may be used. I now apply to the buckram a layer of cotton, woolen, or other flock, this process consisting in coating the buckram with an adhesive substance, and strewing the flock thereon in finely-powdered form. The article is then in a state for trimming. The buckram, A, supports both the flock-layer, B, and the lining, C, and being re-enforced by the lining, a light or thin piece of such material may be used, rendering the article pliable or soft, substantially like soft felt. The appearance of the article, moreover, is felt-like, inasmuch as the lining has the semblance of napped felt and the flock-layer that of plain felt."

The claim is as follows:

"A head-covering consisting of a support of buckram or the like, a top layer of flock, and a canton-flannel or other similar lining, substantially as and for the purpose described."

The only defence is want of novelty. It is plain that the hat of the patent must be a hat made by pressing the materials into the shape of a hat, and not made, the top in one piece, the side crown in another, and the brim in another, and then these joined. There must also be

(1) A layer of flock on a support of buckram, or the like; (2) a support of buckram, or the like, next the flock, with a coating of adhesive substance on the buckram, on which the flock is strewn; (3) a canton-flannel or other v.9,no.6-26

similar lining on the face of the buckram, to which the flock is not applied, with the napped face of the canton flannel exposed, and not next to the buck

ram.

The Kendall turban, defendants' Exhibit No. 3, has no side crown or brim. Irrespective of this, it is not satisfactorily established that that article had in it any stockinet support, or anything but canton flannel, with flock applied directly to the unnapped face of the canton flannel. Bracher's frame, No. 6, if made with the unnapped face of the canton flannel exposed, had only flock enough put on the buckram to take an impression of the straw braid, and was made, not for use in that condition as a hat, but solely to be stamped as an imitation of a straw hat. The flock was put on only as a pulp on which to emboss, and the flock, by the embossing, lost its identity and parted with all resemblance to felt. The Morse hat, No. 13, is a flocked buckram hat, with a strip of canton flannel put in separately as a brim. Hats such as the Novelty Company hats of 1876, made of canton flannel, muslin, and flock, with the napped face of the canton flannel not exposed, were not the Gray hat. It is plain that cementing the nap to the buckram tended to destroy the pliability or softness aimed at by Gray, by reason of the absorption of the nap by the cement, and that there could be no appearance of napped felt.

The case is one where there was sufficient invention to support the patent, and there must be a decree for the plaintiffs, with costs.

DOWNTON V. THE YAEGER MILLING Co.

(Circuit Court, E. D. Missouri. March 28, 1879.)

1. LETTERS PATENT-MIDDLINGS FLOUR.

Certain instruments, set out in full in the opinion delivered by the court, held not to amount to such an assignment by Downton, a patentee for a process patent, of which the claim is for manufacturing middlings flour by passing the middlings through or between rolls, of his right as patentee, as to preclude him from suing third parties who infringe his patent.

In Equity.

W. G. Rainey, for complainant.

G. M. Stewart, for respondent.

DILLON, C. J., (orally.) We are prepared to announce our conclusions in the case of Downton v. The Yaeger Milling Co. This is a bill in equity by the complainant, as the patentee in a certain patent granted by the United States for an invention,-in character a process patent,-against the Yaeger Milling Company for infringing the

monopoly or rights granted by that patent. The issues have been made up, and proofs have been taken. We ordered an argument on the question of assignment and estoppel, since that question, if decided in one way, would end the case against the complainant and obviate the necessity of the court going into the proofs on the merits. Some time about the year 1872-that, perhaps, is common knowledge in this country now-there was brought into successful operation and practice the manufacture of flour of a superior quality or grade, from what is known to millers as the "middlings." Before that time, in America, at all events,-although it was shown by the proofs in another case that they had much more intelligent conceptions on this subject abroad, and especially in France,-in America, however, prior to that time, what is known as the middlings, which constitute the most nutritious portion of the grain, by reason of a greater relative portion of gluten,-a nitrogenous substance which is more nutritious than the other parts of the wheat,-by what is known as the "new process," were shown to be susceptible of making flour, as I said before, of a superior quality, and had the effect of revolutionizing the process of manufacturing flour very largely, and, at all events, to bring the spring wheat of the country, for economical purposes, in more favorable competition, if not on a par, with the winter wheats of the country. Now, when that improvement was practiced or brought into successful operation a year or two afterwards, the United States granted to Mr. Downton, the complainant in this case, what is known as a process patent, as distinguished from a patent for a mechanical device, which sufficiently appears from the claim which he made. After describing the state of the art, as required, he proceeds to state in the claim what he insists is covered by his invention, and for what he wants a monopoly or patent. Now, that claim is this: "The hereinafter-described process of manufacturing middlings flour by passing the middlings through or between rolls." The middlings are a comparatively coarse product, and instead of regrinding them at once, as had been theretofore practiced, Mr. Downton claims a patent, and procured one, for passing them between rolls, (instead of comminuting or triturating them and reducing them to an impalpable powder,) which has the effect of flattening certain impurities, and they are enabled by a sifting process to eliminate said impurities before the middlings are reground; that is the process, viz., by the use of rolls as an intermediate step or process in the art of manufacturing flour. So he says: