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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.
West & Fairfax, for defendant.

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, and deny defendant's motion for $20 costs for attorney's docket fee as on final 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. 306,021, 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.

Thos. Wm. Clarke, for defendant.

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 master 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 hollowball 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.

(Circuit Court, D. Rhode Island. November 17, 1892.)

No. 2,362.

PATENTS FOR INVENTIONS-PLEADING-PROFERT OF PATENT.

were

A bill for infringement alleged that "on the 30th day of October, 1888, letters patent 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:

* * *

were issued,

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 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.
David S. Baker, Jr., and William C. Baker, for respondents.

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 profert 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 OTHER CIRCUITS.

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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.
Offield & Towle, for defendant.

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 Overman 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 a preliminary injunction or any preliminary relief.' We concur in this statement of the law."

I have carefully considered the additional evidence as to lack of patentable novelty presented by certain British patents and model exhibits, which it is claimed show a prior use of pedal bars like those of the patent in suit. I do not find in this evidence anything which would lead me to a conclusion different from that reached by the learned judge who tried the case in Maryland.

Un

The claim of defective title is not sustained by the evidence. der the assignment by the complainant the Overman Wheel Company, of June 10, 1886, the legal title to the patent vested in the complainant the Pope Manufacturing Company, subject only to the reservation by the Overman Wheel Company of the sole right to make pedals. like the infringing pedal. The two complainants, therefore, own ail rights under said patent, and are the proper parties in this suit. Manufacturing Co. v. Clark, supra. The decisions of the United States circuit court and the United States supreme court in Pope Manuf'g Co. v. Gormully, etc., Manuf'g Co., 34 Fed. Rep. 892, and 144 I. S. 248, 12 Sup. Ct. Rep. 637, are cited in support of the claim that the patent for the invention in suit has been judicially declared invalid, It is true that the Latta patent, therein referred to, does, in the drawings which accompany it, suggest a construction similar in general appearance to that of the patent in suit. It is also true that certain claims of said Latta patent were declared invalid by the circuit court in the above case, and that, in the opinion of the United States supreme court, affirming the decree of the circuit court, it said: "If there be any novelty at all in the Latta patent, it must receive such an exceedingly narrow construction that the defendant cannot be held to have infringed it." But it appears upon examination of the Latta patent that none of its claims embrace the invention of the defendant. It further appears that the second and third claims of said patent, being the claims which defendant in above cases was alleged to have infringed, are for pedal bars coated with rubber, longitudinally grooved. This form of pedal bar was expressly disclaimed as old by the patentee of the patent in suit. I have been unable to adopt the construction of the above decisions claimed by defendant's counsel. But, if there is any force in the claim that, by such construction, the decision of the Maryland court has been virtually overruled, this claim is one which may more properly be presented to and passed upon by the appellate court. I shall therefore follow the rule as stated in Brush Electric Co. v. Accumulator Co., 50 Fed. Rep. 833.

"The rule is well established that where, as the result of a contested controversy, letters patent have been sustained, preliminary injunctions will be granted against infringers, as a matter of course, by the court which has adjudged the letters patent valid, and, as a matter of comity, by the federal courts in other circuits."

The motion for the preliminary injunction is granted.

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