« EelmineJätka »
the whole case, therefore, I think that the tobacco involved in this proceeding must be classified as leaf tobacco, unstemmed, suitable for cigar wrappers, and dutiable at two dollars a pound.
In re MEGROZ et al. (Circuit Court, S. D. New York. June 13, 1892.) CUSTOMS DUTIES—CLASSIFICATION-SILK AND COTTON VELVETS-SELVEDGES.
Silk and cotton Velvets imported subsequent to October 6, 1890, are dutiable on the weight of the goods, including the selvedges, under paragraph 411 of the tariff act of October 1, 1890.
At Law. Application for review by the importers of a decision of the Board of United States general appraisers under the provisions of section 15 of the customs administrative act of June 10, 1890, as to the rate and amount of duty on certain silk and cotton velvets imported by them October 30, 1890. The collector of the port of New York assessed the merchandise for duty on the weight of the goods, including the selvedges, under paragraph 411 of schedule L of the tariff act of October 1, 1890, at $1.50 per pound and 15 per cent. ad valorem. The paragraph under consideration is as follows:
*411. Velvets, plushes, or other pile fabrics, containing, exclusive of selvedges, less than seventy-five per centum in weight of silk, one dollar and fifty cents per pound and fifteen per cent. ad valorem; containing, exclusive of selvedges, seventy-five per centum or more in weight of silk, three dollars and fifty cents per pound and fifteen per centum ad valorem; but in no case shall any of the foregoing articles pay a less rate of duty than fifty per centum ad valorem."
The importers protested on the ground that, in determining the number of pounds upon which the duties were assessed, the dutiable weight consisted only of the weight of the goods, exclusive of the selvedges. The board of United States general appraisers, in their decision of the case, found, among other things, as findings of fact:
“(2) That said velvets were composed of silk and cotton, and contained, excluding the selvedges, less than 75 per cent. in weight of silk; (3) that said velvets were pile fabrics woven with plain selvedges, which were integral portions of said fabrics; (4) and the specific or pound duty was levied upon the weight of the entire fabric."
As conclusion of law the board found that the duty was properly assessed according to the above findings of fact. The importers appealed, according to law, to the circuit court.
Curie, Smith & Mackie, (W. Wickham Smith, of counsel) for importers.
Edward Mitchell, U. S. Atty., and James T. Van Rensselaer, Asst. U. S. Atty.
After argument, the circuit court, LACOMBE, Circuit Judge, affirmed the decision of the board of United States general appraisers without delivering any opinion.
EDISON ELECTRIC LIGHT CO. V. MATHER ELECTRIC CO.
In a suit by a corporation for infringement of a patent, defendant de murred to the bill because it failed to allege a written assigament of the patent, or that the article had not been patented or described in any
printed publication prior to the invention. Complainant then moved for leave to file an amended bill supplying these omissions. Held, that such a bill was not a new bill, and that defendant was not entitled, as a. condition of allowing the same to be filed, to have his demurrer sustained as on final hearing, but the filing would be allowed on payment of defendant's reasonable costs, without passing upon the demurrer.
In Equity. Suit by the Edison Electric Light Company against the Mather Electric Company for infringement of a patent. On motion for leave to file an amended bill. Granted.
Dyer & Seeley, for complainant.
TOWNSEND, District Judge. Defendant demurred to the orig. inal bill because it failed to allege a written assignment of patent to complainant, and that it had not been patented or described in any printed publication prior to the invention. Complainant thereupon moved for leave to file an amended bill. Defendant claims that, if complainant is given leave to amend, his demurrer to the original bill should be sustained as on a final hearing. He cites no precedent or authority for this course, but claims that the amended bill is virtually a new bill. I do not find any material difference between the original and amended bills, except that in the latter the omissions above stated have been inserted. The motion is granted upon condition that complainant pay to defendant the probable disbursements to which it has been subjected by reason of the amendment, say $10, and with leave to defendant to file a pleading to the same on the next rule day. As I understand it not to be the practice in granting such a motion to pass upon the demurrer, I decline to make any order thereon, ind deny defendant's motion for $20 costs for attorney's docket fee as on fnal decree.
BALL GLOVE FASTENING CO. v. BALL & SOCKET FASTENER CO. (Circuit Court, D. Massachusetts. December, 1892.)
No. 2514. PATENTS FOR INVENTIONS-INFRINGEMENT ACCOUNTING—Master's FINDINGS.
In a suit for infringement of the Kraetzer patents, No. 290,067, and No. 304,021, for glove fasteners, the court held that the first claim of the former and the fourth claim of the latter were infringed by the "Mead solid-ball” fastener, and accordingly ordered an injunction and accounting. The master found that the "Mead hollow-ball" fastener was included in the decree, as being only colorably different from the solid-ball fastener. Held, that the finding should not be disturbed, the only difference being that in the solid-ball fastener the connecting shank goes down through the upper plate and the material, and is upset underneath the lower plate, on the underside of the material, while in the former the connecting shank goes up through the lower plate, material, and upper plate, and is upset or compressed in the hollow ball. In Equity. Bill by the Ball Glove Fastening Company against the Ball & Socket Fastener Company for infringement of the Kraetzer patents, No. 290,067 and No. 306,021, for improvements in glove fast
eners. An injunction was heretofore granted. 36 Fed. Rep. 309. Subsequently the court entered a decree for complainant, and an accounting was ordered. 39 Fed. Rep. 790. The cause is now heard on exceptions to the master's report. Overruled and report confirmed.
William B. H. Dowse, for complainant.
COLT, Circuit Judge. This case now comes before the court upon exceptions taken by the defendant to the master's report.
As to the first exception, which relates to the question of jurisdiction, I have nothing to add to what is said by the court in the opinion in this case on motion for injunction. 36 Fed. Rep. 309.
The remaining exceptions relate to the Mead hollow-ball fastener, and the question is whether this fastener comes within the terms of the decree. This court has decreed that the Mead solid-ball fastener is an infringement of the second claim of the first, and the fourth claim of the second, Kraetzer patents. 36 Fed. Rep. 309. The mas. ter found the Mead fastener with a hollow ball to be identical in principle and appearance with the Mead solid-ball fastener, the difference being merely in construction; and he declined to enter into the prior state of the art, or to specifically compare the hollow-ball fastener with the claims of the Kraetzer patents, or to permit the introduction of testimony relative to the merits of the hollow-ball fastener. These devices relate solely to the button member of a fastener. In the solid-ball fastener, the connecting shank goes down through the upper plate and the material, and is upset underneath the lower plate, on the underside of the material; while in the hollow. ball fastener the connecting shank goes up through the lower plate, material, and upper plate, and is upset or compressed in the hollow ball. Upon a comparison of these two structures, I agree in the conclusion reached by the master. In the opinion referred to, the court said:
"The Kraetzer patents should not be limited to the exact forms found described in the specifications; and the defendant should not be permitted to escape by making colorable or immaterial changes in construction, while retaining all the vital parts of Kraetzer's improvements.”
It is evident that the master, upon examination, considered that the difference between the solid-ball and the hollow-ball fasteners was merely colorable, and he therefore concluded that the hollowball structure was within the opinion and decree of the court, and that it was therefore unnecessary and, perhaps, improper, for him to go any further. I can see no sufficient reason for changing the master's findings. The exceptions are overruled, and the master's report confirmed.
DICKERSON V. GREENE et al.
A bill for infringement alleged that “on the 30th day of October, 1888, letters pateat of the United States numbered No. 391,875 * issued,
as by a certified copy of said letters patent in court to be produced will more fully appear." Held, that this was sufficient profert of the patent to make the same a part of the bill. Bogart v. Hinds, 25 Fed. Rep. 484, and American Bell Tel. Co. v. Southern Tel. Co., 34 Fed. Rep. 803, followed. In Equity. Suit by Edward N. Dickerson against William R. Greene and another for infringement of a patent. On demurrer to the bill. Overruled.
Statement by CARPENTER, District Judge:
This is a bill in equity to enjoin an alleged infringement of letters patent for an invention. The bill alleges that “on the 30th day of October, 1888, letters patent of the United States numbered No. 391,875 were issued,
as by a certified copy of said letters patent in court to be produced will more fully appear.” The respondents demur because the complainant “has nowhere set forth what the medical compound' is, the alleged sale of which by said respondents he claims to be an infringement.”
Cowen, Dickerson, Nicoll & Brown, for complainant.
CARPENTER, District Judge. The respondents, in support of their demurrer, argue that the bill should set out the nature of the patented invention, or at least should make the specification of the letters patent a part of the bill in express words. But it seems to be settled, at least in the practice of the federal courts, that prs. fert of an instrument, such as this bill makes, is sufficient to make such instrument a part of the bill. Bogart v. Hinds, 25 Fed. Rep, 484; American Bell Tel. Co. v. Southern Tel. Co., 34 Fed. Rep. 803. This demurrer must therefore be overruled, and the respondents or dered to answer over.
OVERMAN WHEEL CO. et al. v. CURTIS.
(Circuit Court, D. Connecticut. October 17, 1892.) 1. PATENTS FOR INVENTIONS SUIT FOR INFRINGEMENT ADJUDICATIONS IN
The fact that the judiciary act of March 3, 1891, took away the appellate jurisdiction of the supreme court in patent cases, did not extinguish the doctrine of comity between circuit courts, so as to diminish the weight which should be given to a prior decision in another circuit in relation to the same patent. American Paper Pail, etc., Co. v. National Folding Box,
etc., Co., 51 Fed. Rep. 232, followed. 2. SAME-INVENTION-VELOCIPEDE PEDALS.
Claims. 1 and 2 of letters patent No. 329,851, Issued November 3, 1885, to Albert H. Overman, for an improvement in pedals for velocipedes, cover a patentable invention. Pope Manuf'g Co. v. Clark, 46 Fed. Rep. 789, followed. Pope Manuf'g Co. v. Gormully, etc., Manuf'g Co., 34 Fed. Rep. 892, and 12 Sup. Ct. Rep. 637, 144 U. S. 248, distinguished. In Equity. Bill by the Overman Wheel Company and the Pope Manufacturing Company against Henry J. Curtis for infringement of a patent. On motion for a preliminary injunction. Granted.
Chamberlain, White & Mills, for complainant.
TOWNSEND, District Judge. This is a motion for a preliminary injunction against the infringement of claims 1 and 2 of letters patent No. 329,851, granted to Albert H. Overman, November 3, 1885, for improvement in pedals for velocipedes. These claims were sustained, on final hearing, in Manufacturing Co. v. Clark, 46 Fed. Rep. 789. It appears from the pleadings and proofs and the decision of the court in the former suit that the questions of patentable novelty and infringement were fully presented by counsel, and carefully considered by the court. The learned judge, after reviewing the patents introduced by way of defense, says:
"Nothing has been adduced by the defendant in this case to show that the state of the art was other than is frankly set forth in the specifications of the Overnian patent, and I think that it appears that Overman made a distinct step in the adaptation of pedals to the requirements of improved bicycles. The utility is not denied, and the difference, although slight, appears to be important, and one of principle, not attainable by mere mechanical improvement. That it required the exercise of invention, and is patentable, I think has been successfully maintained."
At the hearing upon this application defendant claimed, by way of defense, lack of patentable novelty, prior use, noninfringement, defective title, no injury to complainants, and that the patent in suit had been virtually declared invalid by the United States supreme court. Most of these defenses seem to me to be disposed of by the decision in Manufacturing Co. v. Clark, supra. But defendant's counsel claims that this decision should not stand as an equity against the defendant, because the act of March 3, 1891, by taking away the jurisdiction of the United States supreme court, has virtually extinguished the doctrine of comity between co-ordinate courts. I am unable to adopt this view. In fact, in a very recent case - American Paper Pail, etc., Co. v. National Folding Box, etc., Co., 51 Fed. Rep. 232,—the circuit court of appeals has decided otherwise. In that case, Judge Shipman, speaking of the weight which is to be given to a previous adjudication which is the foundation of an application for a preliminary injunction, says:
"In the absence of some controlling reason for disregarding it, the former adjudication should have the same weight in this court which it has as the foundation for a preliminary injunction before the circuit court. The effect which is to be given such adjudication in the circuit court is well stated in the syllabus of Mr. Justice Miller's opinion in Purifier Co. v. Christian, 3 Ban. & A. 42, as follows: "Where a patent has been established by a decision of a circuit court after careful consideration, that decision is entitled to very great weight in a subsequent application, either before the same court or any other for & preliminary injunction or any preliminary relief.' We concur in this statement of the law."