case is referred back to the master, with liberty to the plaintiffs to apply to him for leave, to be granted or refused in his discretion, to give further proofs as to profits, and for a further report from him, based on the principles above laid down.
September 29, 1881.)
(Oircuit Oourt, S. D. N(J'IJ) York. 1.
DESIGN IN TRIMMING-INFRINGEMENT-INJUNCTION.
A design for trimming, produced by embossing on fluting machinery, con. fers the exclusive right to impress that appearance, and an imitation of the design will be restrained by injunction.
In Equity. Arthur v. Briesen, for orator. Jacob L. Hanes, for defendants. WHEELER, D. J. This suit is brought for relief 'against infringe. ment of design letters patent No. 11,186, granted to the orator on application made March 19, 1879, for a design for trimming, pro. duced by embossing on fluting machinery, dated May 6, 1879. The orator makes and sells trimming according to his patented design, as he claims it to be, and the defendants admit having made the same thing; but they set up in defence that the patent does not cover that design; that the orator was not the original and first producer of the design which it does cover; and that so much of the design as they have made use of had been in public use and on sale, with the consent and allowance of the orator, for more than two years prior to his application for the patent. The impression created at the hearing was that the defendants had not, in view of all the evidence on both sides, sustained either of the last two defences by the requisite measure of proof. A careful reo view of all the evidence confirms that impression. The specification and drawings of the patent, taken all together, show a row of embossed, smooth, oblong, and half-cylindrical projections between and parallel with two rows of ordinary fluting, which are the prominent and original features of the design, and are what the orator's trimming, made under the patent, show. This design is what he invented. It proved attractive, and his patent conferred upon him the exclusive
SEIBERT CYLINDER OIL CUP CO. V. PHILLIPS LUBRICATOR 00.
right to impress that appearance upon trimmings. The defenda.nts appear to have infringed upon that right. Therefore, there must be a decree for an injunction and an account, according to the prayer of the bill, with costs.
SEIBERT CYLINDER OIL CUP Co. tJ. PHILLIPS LUBRICATOR Co.
(Oircuit Court, D. Massachusetts.
February 23, 1882.)
Where an assignment is made the motive is not material. The legal title passes to the assignee, who may maintain suit for infringement without jom. ing the patentee.
J. P. Treadwell, for complainants.
T. W. Clarke, for defendants. C. J. The complainants are assignees of patent No. 138" 243, granted to John Gates for a very ingenious and useful lubricator for steam-engines. The defendants contend that one Parshall made the same invention a few weeks or a few months before Gates, though he took a patent some six years later. The evidence is not in a very satisfactory state, being a copy of that which was taken in a case of interference to which Gates was not a party. I have read it carefully, and do not find that Parshall completed and reduced to practice the invention in question before Gates made it. The idea was probably conceived by the two inventors nearly at the same time. Which was the earlier to conceive it I cannot say, but Gates fully tested and proved and adapted it to use while Parshall was trying to overcome a practical difficulty of construction which the particular form of his machine required him to overcome, and he did not succeed until years after Gates' machine had been in general use. The assignment to the plaintiffs was made an assignment, rather than a license, in order that they might sue in their own names-so the contracts recite; but there is no legal objection to this: the mati ve is not material, and, the whole legal title being in the plaintiffs, they may maintain this suit without joining the patentees. Decree for complainants.