494 plied ,oyanypersorr :to 'any chair; then the reissue is for a different invention than that disclosed in the. original patent. In conclusion, in view of the former decision of this court the complainants can only succeed,upon the theory that by imparting a concave form to his chair' seat he has impart,ed sufficient, patentable novelty to his article to sustain a' patent; and this when such a form of chair seat was old, the material used old, and the method of imparting the form to the material was old. This theory cannot stand. ' The bill must be difimi'8sed.
(O'u-cult Oourt,8. D. N61JJ, York.
.Tune 28, 1882.)
PJl:RlI'OltMIN'G DIFFERENT', FUNCTIONS.
Where, the dtjviceain "the hod elevator patented by defendant are not the equi,valents the complainant's, butJ?erform a different fq.nction, there is DO infringement .of I?laint,itf's patent. , ..
Kitchen d; Brown, for complainant. Frost d; Co., for defendant. WALLAOE, C. J. Themst claim of the letters patent No. 95;262, .granted September 28, 1869, to Thomas M. Pelham for an improved hod elevator, 'is in controversy,inthis action. Tnatclaim. reads as ;follows:' "A, hod-elQJ'iating platform arranged to support the hods by the shanks at the edgespn the bottom or, floor, and by leaning the under side of the top and' the upperpai't of the shanks against notch. bars, substantially as specified.." The invention relates. to improvements, ip hod-elevating platforms '!luoh as are used by builders;for ele·vatingand returning the hods oontaining bricks, mortar, etc., and has for its object to provide'ian a,rrlJ,ngement whereby the persons who take the hod from the platform after.it is elevated may do so with,out being required to stepon'theplatform in shouldering the hod. The French patent of March, 1860, granted to George Johnson, of .London,describel\ a hod Qlevator ha.ving the, same purpose as, Pelham's device, and soconstructedth!ltthe theplatf.orm is elevated, can beremo.ved froJ;ll thep1atforxn by the workman without him to step qpon the, platforIJl., . In view of this Fren6h 'J2atent,. the e.omplaiuant'sp8ltent is to, be ,limited so as "to
only the particular devices described in his patent, and their equiva;;, lents for' performing the samefuD.ctions.::· Aparticnlar descripiion of . these is their is such that when the end of the' hod shank rests in the floor socket the bowl and shank of the hod at and near their junction. will be a;upported by the cross-bar, and be so ftl,r inwardly out of perpendict1lar with the floor socket that they will be be kept in place by the weight of the hod-bowl and its contents, the center of gravity being ·onthe inward side of the cross-bar. A practical disadvantage results from the principle of thecQmplainant's invention, whereby the opeI1'·,endof the hod-bowl is prasented to the workm.an when remove the hod, ana,'he is required to ll"everaethe eud,of the bowl, and.the,(lontents of the bowl are thus liable to..fa.ll out. Upon the proofs the conclusion is reached that the a.pparatuS!actullIUyuse/l by the whicll is alleged toinfDinge the compltloinant's described:-in letters' patent issued to the defendant, No., 231,021, bearing ,August 10, 1880. The devices in the hod elevator patented by-the defendant ate not the equiv.alents of the complainant's, but perforln a,different function. Their oftjQe. is hod,in: :80 -:vertic!!:l position, and resting on its shank instead Q'! on the ·the defendant's devices the closed end oftqe'hod.bowl,ma.y be on the outer side of the cross-bar, and when it is thus presented to man he /loes not require to reverse the end of; tlw bowl, and ·thet.e is no liability that the contents of the bowl will escape. The defendant does not infringe, and the bill is dismissed, with costs.
FISHV. DOMESTIO SEWING. MAcmNE .
"; · '''/ C
(Circuit Oourt, S. D. New York. May 13, 1882.)
FOR INVllINTION-DELAYIN APPLIOATION' Jl10It . REISSUE.
The numerous, patents obtained by the patentee between the time of his alleged in ven tion and the time of his application tends strongly to refute his theory for delaying to make sueh application.
2. REISSUE-REFERENCE TO FORlolER Al'PLICATI01i.
The fact that a patentee failed to refer in a former application to a feature to and used for the same purpose as subsequentlypaten,ted l,y him the former, allege.d,tohave been made by him ppiQr the one first patented, is very improQable,:as,the·mention of suchwoul.d1llave been.a mostimpllrtant contribution to the value of the former. .