« EelmineJätka »
whom these batteries were to be supplied was a railway company in Detroit, Mich., and one in Washington city, D. C. After the issuing of the preliminary injunction on May 13, 1892, the defendant corporation again made application to this court for a modification of that writ, under circumstances very similar to those under which the modifications of the restraining order had been previously made: That the Washington Railway Company, known as the “Eckington & Soldiers' Home Railway Company," were in immediate and pressing need of certain elements, more than 1,500 in number, of the storage batteries which were in use, or had been in use, upon the cars of that company, and which the complainants had been and were unable to furnish, their type of battery being somewhat different in structure; that, unless the said elements were furnished immediately, the operation of the railroad must cease, because by the charter of that railroad company neither horses nor the overhead electric system could be used for motive power. After the arguments of counsel, and a fuli presentation of the necessities and demands which called for and seemed to justify a modification of the preliminary injunction, and chiefly for the two reasons that the citizens of Washington would suffer the greatest possible inconvenience from the stoppage of the road, and the court of appeals had not yet affirmed the decree of the lower court, the injunction was modified so as to permit the defendant to supply, either from stock on hand, or by manufacturing, “1,584 positive piles for storage batteries, of a type known as "23 M. G.,' to the Eckington & Soldiers' Home Railway Company of Washington, D. C., in renewal of positive piles heretofore furnished to said railway company by the said Accumulator Company; upon the express condition, however, that the said Accumulator Company do pay, or cause to be paid, into this court, before the delivery of said piles or any of them, a sum of money in cash equal to a royalty of three cents per pound of said piles,”—which money was to be held for the benefit of the complainants.
Upon the modification of the restraining order and of the preliminary injunction, the storage batteries were furnished under the contracts which the defendant company had with the respective railway companies, and the conditions upon which the modifications were made fully complied with by it. The complainants now allege that the defendant corporation, or its officers or agents, have knowingly and willfully violated the restraining order and the writ of injunction, and have done acts which they were restrained and prohibited from doing, willfully, and in express disregard of the order of this court. The acts complained of, and of which it is alleged the defendant corporation has been guilty, consist, generally speaking, in its continued general supervision of the preparation, use, and operation of the storage batteries as furnished by it to the Eckington & Soldiers' Home Railway Company, both in respect to the installation of the said batteries, as well as their operation after the installation; and they insist that by the very language of the injunction, as well as of the restraining order, the defendant was prohibited from directly or indirectly making, using, preparing, selling, or disposing of any secondary or storage batteries to anyone; that the modification simply
permitted the defendant to sell or furnish, and did not permit it to use or to supervise the use, yet this use and this supervision of use were acts of which the defendant was admittedly guilty.
Beyond question, if the restraining order and the preliminary injunction are to be construed strictly, and the respective modifications construed with equal strictness, the defendant may be said to have been guilty of a technical violation of both. It is not disputed that the defendant's agents and servants have supervised the preparation, installation, and operation of the storage batteries furnished to the railway company mentioned; but under the circumstances of the case, as presented to the court, it is not conceived that the modification of the injunction should be so strictly and literally construed as to limit it as contended. At the time of the application for the several modifications, there was presented to the court for inspection the original contract between the Eckington Railway Company and the defendant. By that contract the defendant was to equip a certain number of cars with storage batteries sufficient to operate them for a given distance at a certain rate of speed. The electrical energy with which said batteries were to be charged was to be furnished, and the conductors and motormen upon the cars were to be employed and paid, by the railway company; but the defendant company was to supervise the operation of the electrical equipment to be supplied by it for a period not exceeding three years from the date of the contract, January 23, 1891; and, that it might efficiently perform this part of the contract, it was to furnish and pay the salary of a supervising electrician or superintendent, who should have the general charge and direction of the operation and use of the respective storage batteries, and whose orders as to the use and operation of the batteries were to be fully obeyed by the employes of the railway company. There were also provisions in the contract which raised a question as to the title to the storage batteries furnished,—whether it passed to the railway company, or was retained for a specified time by the defendant company. Now, it was after the inspection and consideration of this contract by the court, and for the reasons, inter alia, that the continued operation of the street railway depended upon the immediate performance of it by the defendant company, that the several modifications in the enjoining order and writ of injunction were made. Those modifications were intended to give to the defendant company the right to furnish the infringing storage batteries to the Eckington Railway Company under the contract in question, and upon the express condition that the satisfaction of all pecuniary damages which the complainants might show themselves to be entitled to thereafter, arising from the furnishing of said batteries in question, should be first provided for. The application to the court was for permission to furnish storage batteries under the contract in the case.
The contract was exhibited to the court to advise the court of its terms. The only inference to be drawn was that the batteries, when furnished, were to be used in compliance with and under the conditions of that contract. It was so understood by the court at the time the modification was made. While, therefore, the words in which the modification was made apparently limit the privilege of the
defendant corporation to the furnishing of the storage batteries solely, it was intended by the court, and should have been understood, that these batteries, when furnished, were to be used under the conditions of and in the way stipulated by the contract. The modification meant, if it meant anything at all, that the defendant corporation could furnish the needed elements of the batteries to the Eckington Company, in a limited number, to be installed upon the cars of the Eckington Company for motive power, and to be used and operated under the terms and conditions of the contract, in compliance with which the defendant company was permitted to furnish them. No other construction ought to be put upon the action of the court. Simply to permit the defendant corporation to supply the Eckington Company with storage batteries would have carried with it no benefit to the traveling public, whose interests were being considered by the court; for the operation of the cars of the Eckington Company by those storage batteries when furnished depended, to a certain extent at least, upon the supervision of their use and operation by the electrical supervisor furnished by the defendant company. It is no answer to this to assert that, if the defendant company had not supplied the supervisor necessary for the successful operation of the storage battery, the Eckington Company would have been driven to obtain that supervision and assistance in the operation of their road from the complainants, at a pecuniary benefit to said complainants. Non constat that the complainants would have been willing to supervise the defendant's batteries. Had they refused, the inconvenience to the public, which the court was endeavoring to lessen, would have been intensified. The fair construction of the modification is that by it the defendant company was permitted to furnish the storage batteries in question to the Eckington Company under the terms and conditions of the contract which it exhibited in court with that company. As the acts alleged by the complainants as acts violative of the injunction are only such as the contract called for on the part of the defendant company, it is neither fair nor equitable to adjudge it guilty of willfully violating the injunction or enjoining order by their performance.
Besides, it is perfectly clear that the injury arising from the modi. fication, and sustained by the complainants, springs out of the permission to furnish the storage batteries. The complainants' letters patent cover and protect the construction of a certain storage battery. No one has the right to make a similar, or substantially the same, battery as that protected by those letters patent. To make and sell and dispose of such similar, or substantially similar, battery is a violation of the complainants' right. Simply to supervise and attend to the operation of such storage battery, after the court has permitted it to be installed, inflicts upon the complainants no additional pecuniary damage. Hence they have no special ground for complaints in the premises. The motion for attachment is denied.
AMERICAN PIN CO. v. SCHEUER et al.
(Circuit Court, S. D. New York. January 14, 1893.) PATENTS FOR INVENTIONS_VALIDITY-NOVELTY.
Letters patent No. 300,744, issued June 17, 1881, to Elbert A. Whittelsey, for an improvement in a locking device for shawl straps, having endless bands wound upon a handle, disclosed patentable invention. In Equity. Bill by the American Pin Company against Isaac Scheuer and others for infringment of a patent. Decree for complainant.
Sherman H. Hubbard, for plaintiff.
WHEELER, District Judge. This suit is brought upon patent No. 300,744, dated June 17, 1884, and granted to Elbert A. Whittelsey, for an improvement in shawl straps of endless bands wound upon a handle, locking the handle to hold the straps by a slide' with an angular slot moving against and grasping an angular part of the spindle. The handles had been held by ratchets before, and similar slides had been used to hold spindles of locks before. The principal objection to the patent is want of invention in putting such a slide to this use. But the parts with which it is made to work here are quite different from those of a lock, and to contrive it into this place for this purpose was something more than merely putting it to a new use, and required more than the ordinary skill of a workman. The defendants' slide does the same thing in about the same way.
Let a decree be entered for the plaintiff.
NEW YORK BELTING & PACKING CO. V. NEW JERSEY CAR SPRING
& RUBBER CO. (Circuit Court of Appeals, Second Circuit. December 6, 1892.) 1. DESIGN PATENTS-LIMITATION OF CLAIM-PRIOR ART-RUBBER MATS.
Design patent No. 11,208, issued March 27, 1879, to George Woffenden, for a design for rubber mats in which kaleidoscopic, mosaic, and moire effects are produced by a series of parallel corrugations, which in different sections of the mat make angles with, or are deflected to meet, ihe corrugations of other sections, must, in view of the prior state of the art, as shown especially by the English patent to Fanshawe and Jacques of November 29, 1860, No. 2,935, be limited to the specific design shown in
the drawing. 48 Fed. Rep. 556, affirmed. 2. SAME-INFRINGEMENT.
Although the patentee in his specifications says that the square mat exhibited in the drawing might be made “oblong or other desired shape," the patent is not infringed by an oblong mat having much the same general appearance as the mat of the patent, but in which the exact arrangement is not such as would necessarily result from an attempt to adapt the patentee's design to an oblong mat. 48 Fed. Rep. 556, reversed. Appeal from the Circuit Court of the United States for the Southern District of New York.
In Equity. Bill by the New York Belting & Packing Company against the New Jersey Car Spring & Rubber Company for infringe ment of design patent No. 11,208, issued March 27, 1879, to George Woffenden, assignor to complainant. The circuit court on a demurrer to the bill held that the patent was invalid, (30 Fed. Rep. 785,) and from a judgment entered in pursuance thereof an appeal was taken to the supreme court of the United States. The supreme court reversed the judgment and remanded the cause, (11 Sup. Ct. Rep. 193) and on a final hearing in the circuit court an interlocutory decree wus entered sustaining the patent as to the specific design shown therein, anel declaring infringement, (48 Fed. Rep. 556.) From this decret's defendant appeals. Reversed.
Arthur v. Briesen, for appellant.
LACOMBE, Circuit Judge. The patent is for a design for rubber mats. The specification sets forth that, "In accordance with this design the mat gives under the light different effects, according to the relative position of the person looking at it. If the person changes his position continuously, the effects are kaleidoscopic in character. In some cases moire effects, like those of moire or watered silk, but generally mosaic effects, are produced. Stereoscopic effects, also, or the appearance of a solid body or geometric figure, may at times be given to the mat, and under proper conditions an appearance of a depression may be presented. The design consists in parallel lines of corrugations, depressions, or ridges, arranged to produce the effects as above indicated.”
Then follows a reference to a drawing of the mat and a description of the same, after which the specification proceeds:
"The above forms simply one of the many ways in which my invention may be carried into effect. The corrugations in the center and outer border need not extend entirely around the mat, but in each of the sections a depression in one section may be opposite a ridge in the next. And it is not necessary that the corrugations be parallel with the sides of the mat. They may run in any direction. The ridges and depressions in the intermediate borders might be made to form different angles with each other, or with those in the other sections, or the borders might be increased or diminished in number. It will of course be understood that the effect produced, and the manner in which the appearance varies, are modified more or less by these changes. Instead of making the corrugations in the center of the mat to bend four times, they may be made to change their line of direction any desired number of times, in a regular or irregular way; that is to say, instead of having four series of parallel depressions and ridges, a number of series, less or more, arranged at various angles with each other, may be employed. I may divide the mat by a number of imaginary lines representing a projection of any geometrical figure, and in each of the sections so formed make parallel corrugations or alternate ridges and elevations, the different sets of corrugations making with each other the proper angle to give the effects sought for. To give the moire effects, I usually make the ridges and depressions undulating, while maintaining the parallel position with relation to each other. I desire, therefore, to have it understood that I do not intend to limit the design to parallel corrugations which are straight throughout any considerable portion of their length, (as represented on the drawing, for example,) but that it includes the undulating ridges and depressions, or other disposition or formation in which the corrugations alter their direction irregularly, or in which they may be straight for a certain distance, and then formed in undulations, and that it includes the corrugations arranged in concentric circles, in spirals, in zigzags, or according to any desired figure.”