« EelmineJätka »
"(5) The combination of the parts, b, c, the connecting pivot, and the screw, i, applied to hold the pivot as shown.”
The lateral motion or side swing of the drag bar is obtained by the pivot pin, d, which passes vertically through the forked ends of the drag bar, and through the head or block, b. This pin on which the drag bar swings or vibrates is held in place by a screw inserted in the rear side of the head, b, so that it may be made to press firmly against the pin, thus preventing the pin from rotating in the head, and allowing the forked ends of the drag bar, c, to rotate on the portions of the pin, d, which project above and below the head, b.
The court below, in a short opinion, copied into the brief of appellant's solicitor, disposed of the case by finding, from the proof, that both these patents were void for want of patentable novelty. We have looked carefully into the proof in the case bearing upon the question of novelty as to both these patents, and feel obliged to concur in the decision of the court below. It is not contended on the part of appellant that the idea of maintaining the alignment between the shovels and axle was new with Mast; and the disclaimer in Mast's patent concedes that he was not the inventor of the device for securing the vertical and lateral swing or move ment of the forward ends of the plow beam upon the axle.
The idea of maintaining the alignment between the shovels and axle is clearly shown in the Easterly patent of April, 1856; in the Swickard patent of 1873; in the Dale patent of March, 1875; in the Huffman patent of 1876; while in the Reed patent of December, 1883, we find all the essential elements of the first claim of this patent,—the sleeve, the beam vertically pivoted, and a collar working on the sleeve, the horizontal arms, and the alignment rod, all designed and operating to the same end as the same parts are designed and operate in the appellant's patent.
The four other claims of the patent all relate to the crosshead and bracket holding it. They all cover the same device in slightly different forms of expression, and the novelty is claimed to consist in constructing the crosshead with a hub-like portion enlarged at its upper and lower ends to correspond with similar enlargements of the brackets so as to increase the bearing surfaces of the two parts, and thereby prevent twisting. The mere expansion of these parts where brought in contact does not involve invention. It gives them no new function and produces no new result. It was what any skilled mechanic would do if it was found, in practice, that the parts in contact were liable to twist. It is the same idea as is involved in the common and well-known device of what is called the fifth wheel to a wagon, that is, a larger bearing surface is given, in order to secure steadiness, and less liability to breakage of the parts. It is true that the form of the parts or elements of the appellant's device differs somewhat from that shown in the prior devices which I have cited, but the essential principle of the appellant's machine is found in the prior devices which have been referred to.
"A change of form of a machine, without a change of mode of operation or result, is not patentable.” Winans v. Denmead, 15 How. 330. “A change of mechanical structure is not patentable unless it produces a new and entirely different result.” Sargent v. Larned, 2 Curt. 340; Mabie v. Haskell, 2 Cliff. 510; Aiken v. Dolan, 3 Fish. Pat. Cas. 204.
The fifth claim of the Gardiner & Downey patent is a combination claim, the elements of the combination being the head, b, the forked plate, c, the pivot pin, d, and the screw, i. All these elements are presumed to be old, but a combination of old parts may make a valid patent, if a new result is produced by such combination. The efficient member of this combination is the screw, i, which is applied to hold the pivot, d, firmly in the head, b. It is, as the specifications say, "tapped into the rear side of the head," so that it may be made to bear upon and hold the pivot. It is merely what is known in mechanics as a “set screw." A “set screw" is defined to be “a screw, as in a cramp, screwed through one part tightly upon another to bring pieces of wood, metal, etc., in close contact.” Imperial Dict. "Set screw. A screw employed to hold or move objects to their bearings, as the bits in a cutter head or brace.” Knight, Mechanical Dict. The only function or office of this set screw, i, is to hold the pin, d, in place,—the same result as is produced by a set screw in a cutter head, that of holding the bit or cutter in place; or, as the first definition quoted says, it brings the pieces of metal, that is, the pin and the head, in close contact. No new result is produced by this combination from that produced by the use of a set screw in a cutter head. This claim of the patent is therefore void for want of novelty.
The decree of the circuit court is affirmed.
ARMSTRONG et al. v. SAVANNAH SOAP WORKS et al.
(Circuit Court, S. D. Georgia, E. D. April 13, 1892.) TRADE-MARK- (-BILL FOR INFRINGEMENT-PARTIES.
The directors of a corporation may be included as parties defendant in a bill against the corporation for infringement of a trademark.
In Equity. Bill by Armstrong & Co. against the Savannah Soap Works and others to enjoin infringement of trade-mark. Demurrer for improper joinder of parties defendant. Overruled.
William G. Henderson, for plaintiffs.
SPEER, District Judge. The plaintiffs have brought their bill against the defendants named, and are met by a demurrer, first, upon the ground that the bill, as originally filed, did not state an amount of damages exceeding $2,000, exclusive of interest and costs. This has been cured by an amendment, and it will not be necessary to consider the able argument of the plaintiffs' attorney, in which he insists that the court has jurisdiction of a suit for the infringement of a registered trademark, irrespective of the amount involved. A further ground of demurrer is that the directors of the defendant corporation are joined as parties defendant, which, it is insisted, is a misjoinder. In support of this proposition the defendants rely upon Story, Eq. Pl. § 235; 1 Daniell, Ch. Pr. p. 145, note 2; 9 Ch. Div. p. 552, reporting the case of Wilson v. Church. In the case last mentioned it was held that, under the English judicature act, the defendants, being officers of the corporation, were improperly joined. It is to be observed, however, in the language of Jessel, master of the rolls:
“The legislature, in adopting this act, inaugurated a totally new system of pleading, and established a new court of justice, for that is what the high court is, and one system for all kinds of actions, whether common-law actions or equity actions. There is no other practice extant applicable to equity actions. The old practice has ceased to exist. There is only one kind of action and one kind of procedure.”
It was there held that, as the officers of the corporation were joined merely for the purpose of discovery, and as the discovery could be had by interrogatories in a court of law, the joinder was improper. It is perhaps unnecessary to point out that this system has no standing in the courts of the United States, where the domain of law and equity procedure is entirely distinct. In his admirable work on Equity Pleading, quoted above, Judge Story declares that the officers of a corporation, although they may be witnesses, may be joined in a suit against a corporation, because discovery may be sought from them; and in the case of Glasscott v. Miners' Co., 11 Sim. 305, cited in 1 Daniell, Ch. Pr. 145, the plaintiff was sued at law by a body corporate, and filed his bill for discovery only, making the governor, deputy chairman, one of the directors, and secretary of the company codefendants with the company. It was objected, upon demurrer to the bill, that an officer of the corporation could not be made a codefendant to the bill which sought for discovery only, or at any rate that the individual members could not be joined as defendants with the corporation at large; but the demurrer was overruled. These are the authorities for the decision. On the other hand, the current of authority in this country seems clearly to justify the plaintiffs' action in joining the directors. In the case of Poppenhusen v. Falke, 4 Blatchf. 493, it was held that, where persons were acting in concert in infringing a patent, although they act merely as employes of a corporation, they are liable to be sued therefor jointly in one suit. In Estes v. Worthington, 30 Fed. Rep. 465, it was held, Judge
Wallace delivering the opinion, that in torts of misfeasance, like the violation of a trade-mark, agents and servants are personally liable to the injured party; citing Bell v. Josselyn, 3 Gray, 309; Richardson v. Kimball, 28 Me.463; Mitchell v. Harmony, 13 How. 115; Phelps v. Wait, 30 N. Y. 78. It is true that there is a class of agents—such as mere workmen in the employ of a manufacturer-against whom there can be no recovery, although they may have participated in the acts of infringement, (Id.,) but ordinarily the infringer cannot escape the responsibility by showing that he was acting for another. Maltby v. Bobo, 14 Blatchf. 53; Steiger v. Heidelberger, 4 Fed. Rep. 455. In view of the authorities cited, the demurrer must be overruled.
UNITED STATES V. THE KODIAK.
(District Court, D. Alaska. December 5, 1892.) 1. ADMIRALTY JURISDICTION—“WATERS OF ALASKA”-FORFEITURE-FUR FISH
Where a vessel is seized for violation of Rev. St. § 1956, forbidding the killing of fur-bearing animals within the limits of Alaska territory, or the waters thereof, such seizure being made within the entrance of Cook's inlet, as determined by a line drawn from Cape Douglas to Point Bede, by a United States vessel acting in pursuance of orders from the government, it must be presumed that such orders were given in the assertion of territorial jurisdiction over the waters of the inlet; and, as the right to such jurisdiction is tical question, the courts will not inquire into it, but will assume jurisdiction as thus determined by the political branch of the
government. 2. ALASKAN FUR FISHERIES-FISHING BY NATIVES-TREASURY REGULATIONS.
Rev. St. $ 1936, forbids the killing of fur-bearing animals within the limits of Alaska territory, or the waters thereof, but empowers the secretary of the treasury to authorize the killing of such animals, except fur seal, under such regulations as he may prescribe. By an order of April 21, 1879, the secretary forbade the killing of such animals by any other persons than natives, prohibited the use of firearms by the natives during certain months, and declared that no vessel would be allowed to anchor in the well-known otter-killing grounds, except vessels carrying parties of natives to or from such killing grounds. Held, that this regulation was not violated by a fur company which, in pursuance of an agreenient made with natives at the beginning of the season, took on board of its ship parties of such natives, and anchored with them in the killing grounds, furnishing them with clothing, provisions, and the necessary outfit, and allowing them to live on board and make hunting excursions therefrom in their canoes, and at the end of the season usually purchasing the skins from them, though each native was free to sell his skins elsewhere; no firearms being used, and no white men taking any part in the hunting or killing, and the natives not being in any way hired or engaged by the company. In Admiralty. Libel filed in behalf of the United States for the forfeiture of the schooner Kodiak for a violation of Rev. St. § 1956, forbidding the killing of fur-bearing animals within the limits of Alaska territory, or the waters thereof. Libel dismissed.
C. S. Johnson, Dist. Atty.
TRUITT, District Judge. The libel which was filed in this case on the 15th of June, 1892, alleges that the schooner Kodiak, on or about the 6th of June, 1892, was seized by Henry L. Johnson, commander of the United States steamer Mohican, in Cook's inlet, in the waters of Alaska, and within the jurisdiction of this court, and then sets out the cause of said seizure as follows:
"That said vessel, her captain, officers, and crew, assisted by a large number of natives of Alaska, were at said time unlawfully engaged in killing, and did kill, fur-bearing animals, known as 'otter,' within the limits of Alaska territory, and in the waters thereof, in violation of the provisions of section 1956 of the Revised Statutes of the United States in such cases made and provided."
This section is as follows: "No person shall kill any otter, mink, marten, sable, or fur scal, or other fur-bearing animal, within the limits of Alaska verritory, or in the waters thereof, and every person guilty thereof shall, for each offense, be fined not less than two hundred nor more than one thousand dollars, or imprisoned not more than six months, or both; and all vessels, their tackle, apparel, furniture, and cargo, found engaged in violation of this section, shall be forfeited. But the secretary of the treasury shall have power to authorize the killing of any such mink, marten, sable, or other fur-bearing animal, except fur seal, under such regulations as he may prescribe; and it shall be the duty of the secretary to prevent the killing of any fur seal, and to provide for the execution of the provisions of this section, until it is otherwise provided by law. Nor shall he grant any special privileges under this section.”
After the filing of the libel herein, on June 18, 1892, the master of the Kodiak, intervening for and in behalf of the vessel, her tackle, apparel, furniture, and cargo, appeared and alleged that at the time of the seizure of said property he was in possession thereof, and that it belonged to the Alaska Commercial Company, a corporation duly organized under the laws of California. This company in subsequent proceedings appeared as claimant, and on the 4th day of October, 1892, filed an answer to the libel. In this answer, by failing to deny, it admits, the allegations of the libel as to the time, place, manner, and authority of the seizure, but denies any violation of the provisions of section 1956, or any other statute whatever, or the commission of any act which it might not lawfully do under and in pursuance of the authority conferred by regulations of the secretary of the treasury of the United States, issued and prescribed on the 21st of April, 1879. The regulations referred to in this answer were issued by Hon. John Sherman, and are given in the following notice or circular:
"Washington, D. C., April 21, 1879. "Section 1956 of the Revised Statutes of the United States provides that no person shall, without the consent of the secretary of the treasury, kill any otter, mink, marten, sable, or fur seal, or other fur-bearing animal, within the limits of Alaska territory, or in the waters thereof, and that any person convicted of a violation of that section shall, for each offense, be fined not less than two hundred nor more than one thousand dollars, or be imprisoned not more than six months, or both, and that all vessels, with their tackle, apparel, furniture, and cargo, found engaged in violation of that section, shall be forfeited. No fur-bearing animal will, therefore, be allowed to be killed, by persons other than the natives, within the limits of Alaska territory, or in the waters thereof, except fur seals taken by the Alaska Commercial Company in pursuance of their lease. The use of firearms by the natives in kill