The complainant registered twice in this country,-once in 1885, as already mentioned, and again in 1889. The mark was not the same in both instances. The registry of 1885 is not set up in the bill, and that, if it had been, it could not have availed the complainant is apparent from what has already been said, inasmuch as the defendants have not marked their goods with anything which, in the sense of the law of trade-mark, is at all like a red anchor in an oval space. The registry of 1889 was made after defendants' rights had accrued and this suit had been threatened. Furthermore, as is said by the learned judge below, the defendants never used the device covered by this registry, or any design in imitation or simulation of it. This disposes of the matter, and no further discussion of it would be profitable.

The courts of the United States take judicial notice of its treaties with other countries, but, where a treaty is relied on the burden is on the party asserting it to inform the court, when, in fact, without knowledge of the subject, of its existence and terms. In this case

it does not appear that the point was considered by the court below, but the brief for the complainant informs us that the treaty which he invokes was made between the United States and Germany, in 1871, "to remain in force for ten years, and, in case neither party gave notice, was extended each year for an additional year." The brief adds, "It is therefore understood that its terms are still effective." Article 17 is quoted, as follows: "With regard to the marks of labels of goods, or of their packages, and also with regard to patterns and marks of manufacture and trade, the citizens of Germany shall enjoy in the United States of America, and American citizens shall enjoy in Germany the same protection as native citizens." We accept this statement and the quotation, but what stipulation does the latter disclose, of which the complainant has not had the benefit? His right to enjoy the same protection as, under the laws of the United States, is enjoyed by citizens of the United States, has been fully recognized; and the question raised by him as to the effect in this country of his alleged acquisition of a right in Germany to the mark which he claims in this suit, has been adjudicated in the manner, and under the laws of this country, precisely as any similar question would be adjudicated if presented to the same court for decision, by one of our own citizens. To more than this the complainant was certainly not entitled. The plain intent of the treaty is to reciprocally assure to the citizens of the respective countries the protection of the laws of the other. It was not intended to give to the official acts, or laws, of either country any peculiar extraterritorial effect.

It follows from what has been said that the mark used by the defendants is not used in violation of any right of the complainant; and, therefore, the decree of the circuit court dismissing his bill, with costs, is affirmed.

WESTINGHOUSE et al. v. NEW YORK AIR-BRAKE CO. et al.

WESTINGHOUSE AIR-BRAKE CO. v. SAME.

(Circuit Court, S. D. New York.

November 20, 1893.)

Nos. 4,976, 4,977, and 5,315.

1. PATENTS-ANTICIPATION-AIR BRAKES.

A patent for a device to be used in connection with a quick-acting automatic air brake is not anticipated by a prior patent for a somewhat similar device, used in combination with the old direct-action air brake, which patent contained no suggestion of how the device could be adapted to the automatic system; it appearing further that, if it were so reorganized and reconstructed as to be used in the automatic system, it would be utterly inoperative for accomplishing its purpose.

2. SAME-INVENTION.

Where several patents cover a series of progressive inventions, all tending to the accomplishment of a given result, and it appears that the last of the series contains the first successful embodiment of these inventions, and that the improvement thereby added was only devised after a series of practical experiments for the purpose of obviating previous defects, this shows that the conception of such improvement involved invention.

8. SAME-LIMITATION "SUBSTANTIALLY AS DEscribed.”

A claim covering a combination "substantially as described" should not be limited to a construction which does violence to the other wording thereof, and which is not specified either in the description or claim, especially when such construction does not appear to be material, and only affects the apparatus when not in use.

4. SAME-INFRINGEMENT.

Infringement is not avoided by simply dividing one element of the patent into two parts, so arranged that the action of one necessarily causes the action of the other in the same way as though they were one, and their combined operation performs the same function and produces the same results as the device of the patent.

5. SAME-COLORABLE CHANGES.

The fact that defendants have made a different construction of one device, which is concededly inferior to that of the patent, while retaining all the other elements thereof. suggests that the difference is only a colorable one, merely designed to avoid the claims of the patent.

6. SAME-DIVISIONAL PATENTS- ENLARGEMENT OF CLAIMS.

Where a device covered by a divisional patent is described in the original application therefor as capable of being employed in connection with and supplementary to another device, which generally accomplishes the same purpose, but is not claimed in such connection, a subsequent amendment, so as to claim it only in combination with such other device, is not an enlargement, and does not render the claim invalid.

7. SAME-COMBINATION-WHAT CONSTITUTES.

When a supplementary device is only intended to operate in case the main device fails to work, but the two are so related that the very failure of the latter so directs a force that it causes the former to act, there exists the co-operation which constitutes a true combination.

B. SAME-LIMITATION.

Claims for an air-brake emergency valve "controlled" by a "piston connected to said valve," and for a "piston stem, a valve on the piston stem controlling the passage," etc.. call for a piston mechanically connected with the valve, and are not infringed by a device in which the valve is unseated by a piston whose stem merely rests against it, but which cannot be reseated by the piston for want of actual connection therewith. 9. SAME-INFRINGEMENT.

A claim in an air-brake patent for a combination containing a port through the center of the piston, described as substituted for a side port,

with which the patent dispenses, is not infringed by a device having no such center port, but using a side port in combination with different elements which are admitted by the patent to be part of the prior art. 10. SAME-ESSENTIAL SIMILARITY-APPARENT DIFFERENCES.

If a device has all the vital elements of a combination essential to the operation of a patent and to the achievement of the result Sought, working in substantially the same way, infringement is not avoided by a method of construction which, owing to a different relative arrangement of the parts, the substitution of mechanical equivalents, and variations in matters not covered by the claims, is in appearance utterly unlike the patented device, and in some respects apparently superior thereto. 11. SAME-PARTICULAR PATENTS.

The Westinghouse quick-acting automatic air brake, No. 376,837, was not anticipated or limited by the previous patents, Nos. 162,465, to Ford, Welsh & Westinghouse, and 360,070, to Westinghouse; and is valid as to the first, second, and third claims, but void as to the sixth, for want of invention. 12. SAME.

The Westinghouse divisional air-brake patent, No. 448,827, shows invention, and is valid.

18. SAME.

The Westinghouse air-brake patent, No. 172,064, is limited to a combination having a port through the center of the piston. 14. SAME.

The first and second claims of the Park patent, No. 393,784, are limited to an air-brake emergency valve mechanically connected with the piston which operates it.

15. SAME.

The Westinghouse patent for an improvement in operating cocks for fluid-pressure brakes, No. 222,803, was not anticipated by the Westinghouse patent, No. 141,685, or by the Fay & Cairns patent, No. 141,685.

In Equity. Suits for infringement of railroad air-brake patents. Decrees for complainants as to some of the claims in suit and dismissing the bills as to others.

Kerr & Curtis, Geo. H. Christy, Frederic H. Betts, and J. Snowden Bell, for complainants.

John D. Kernan, (J. E. Maynadier and Causten Browne, of counsel,) for defendants.

TOWNSEND, District Judge. These are three bills in equity for the alleged infringement of letters patent No. 376,837, granted to George Westinghouse, Jr., January 24, 1888; patent No. 393,784, granted to Harvey S. Park, December 4, 1888; patent No. 172,064, granted to said Westinghouse, January 11, 1876; patent No. 222,803, granted to said Westinghouse, December 23, 1879; and patent No. 448,827, granted to said Westinghouse, March 24, 1891. All of these patents are for improvements in railroad brakes. They describe and claim various devices used in the operation of automatic quick-action freight brakes, including the valve on the engine, operated by the engineer, and different forms of emergency valve apparatus on the cars.

The main defenses interposed to the chief patents in suit are noninfringement and lack of patentable novelty, upon the theory that the inventions therein claimed have been already described by said Westinghouse in other patents not in suit. The parties in interest are the same in each case, but a difference in the ownership of the

patents sued upon necessitated separate suits in the two earlier cases. The patent sued upon in the third case is for a modification of the invention claimed in one of the other patents which had not been patented when said suits were brought. The three cases will

be considered in the order of the relation of the patents to each other.

To understand the scope of the various claims of the patents in suit it will be necessary to examine the state of the prior art. The first practical air brake is known as the "plain brake," and is described in patent No. 88,929, granted to George Westinghouse, Jr., April 13, 1869. It consisted of a pump, operated by steam from the locomotive boiler, which compressed air into a reservoir located under the locomotive cab, which reservoir communicated by a pipe with a cock or valve in said cab, called the "engineer's valve," which was so located as to be readily manipulated by the engineer. From this valve a pipe extended back under the tender, and was connected to a similar pipe under the entire length of the first car by a flexible hose. Each of the succeeding cars had a similar pipe similarly connected. This pipe was called the "train pipe." From the train pipe of each car a branch pipe communicated with the forward end of a cylinder called the "brake cylinder." This cylinder was provided with a piston, the stem of which was connected with the brake levers on the car. When the engineer wished to apply the brakes, he opened the engineer's valve, and the compressed air from the main reservoir flowed back through the train pipe and branch pipes into the brake cylinder on each car, pushing the pistons backward, causing the piston stems to operate the brake levers and force the brake shoes against the wheels. When he wished to release the brakes, he so shifted the valve as to shut off the flow of compressed air from the main reservoir, and to open a port or vent leading from the train pipe to the open air. Thereupon the compressed air in the brake cylinders escaped into the open air, the pressure of the pistons was removed, and the pistons were forced forward again by means of springs, thus moving the brake shoes away from the wheels. The validity of this patent was sustained in Westinghouse v. Air-Brake Co., 9 O. G. 538. The operation of this plain brake was open to certain objections. It was too slow, and was attended by danger of collision in case one part of the train became detached from the other part.

The next brake to be considered is known as the "automatic brake," which appears to have been patented by George Westinghouse, Jr., about 1872 or 1873. It embodied the addition of an auxiliary res ervoir and a triple-valve device to each car. Each reservoir was of sufficient capacity to operate its brakes once, and thus to provide for automatic action in case of accident. The triple-valve device was located at the junction of connections between pipes leading to the train pipe, the brake cylinder, and the auxiliary reservoir. In addition to these three ports, there was a fourth port, leading to the open air.

The operation of this brake was radically different from that of the "plain brake." In the former the compressed air was stored

in the main reservoir until required for the application of brakes; in the latter the main and auxiliary reservoirs and train pipe were always charged with compressed air at working pressure, to prevent the application of the brakes. When the engineer wished to apply the automatic brake, he shifted the engineer's valve so as to cut off the flow of compressed air from the main reservoir, and open a port from the train pipe to the open air. The effect of this was to reduce the air pressure in the train pipe, and cause a back pressure from each auxiliary reservoir through the triple valve, which shifted it so as to close the port from the branch pipe to the train pipe, and stop the escape of air from the auxiliary reservoir, to close the port leading from the brake cylinder to the open air, and to open the port leading from the auxiliary reservoir, and connect it with the port leading to the brake cylinder. Thereupon the compressed air in the auxiliary reservoir flowed into the brake cylinder, and applied the brakes. It will thus be seen that, while the former system was operated by pressure from the main reservoir, the latter was operated by withdrawal of pressure. The result was automatic action in case of accidents whereby air was caused to escape from the train pipe, as by bursting of hose, or the train breaking in two. In such cases the release of pressure operated the triple valve, and automatically applied the brakes.

It is necessary here to consider "train-brake graduation" or "service stops," as distinguished from "emergency stops." While for the latter it may be necessary to admit to the brake cylinder the full pressure of compressed air, say 70 or 80 pounds, yet where it is desired merely to slow up without stopping, it may be necessary to admit only, say 10 or 20 pounds, graduating the amount of flow according to the character of service desired. It is important to bear this distinction in mind, because the appliances hereafter to be considered have been so devised as to provide therefor, and that such graduation shall be under the control of the engineer.

The chief objection to this automatic brake lay in the fact that it was not capable of successful operation on long trains of freight cars. The time consumed by the progressive operation of the brakes between the grip on the first and last car allowed of so much slack motion between them as to cause violent shocks. This automatic brake was publicly tested near Burlington, Iowa, in 1886. The growing importance of the subject of automatic freight graduation, the inadequacy of existing systems to protect the lives of railroad employes, and the disastrous results therefrom, had become so evident that in 1885 the Railway Car Builders' Association arranged for a series of experiments known as the "Burlington trials." The Westinghouse Company, and several other companies engaged in the manufacture of brake apparatus, competed at these trials. None of the competitors succeeded in stopping long trains of freight cars without violent and disastrous shocks. In 1887 the trials were renewed. There were five competing parties, including one of the leading experts for the defendants, and the complainant company. The latter then presented an improved apparatus, covered by patent No. 360,070, granted to George Westinghouse,