T"iLEB V. GA.LLOWAY.
lever, which cam, by sliding in the direction in which the part to which it transmits motion moves, changes the outline of the contact end of the operating lever, and thereby changes the speed of the feedwheel. By this arrangement the interposing piece or cam can be, and is, kept steady in its slide, without danger of working loose, and all danger of any obstacle being prevented to its action whenever moved by the lever, H, is removed. There is, therefore, no heed in the defendant's machine of an elastic rod, I, such as is employed in the plaintiff's machine, and this feature, which is an essential element of the plaintiff's combination, is dispensed with. The court has been pressed to say, from an inspection of the defendant's machine, that the connecting rod employed to transmit motion from the lever, H, to the elbow lever is so made as to be elastic; but this cannot be said, especially in view of the fact that there is no necessity requiring the rod to be elastic, and the pOllitive testimony that the rod is not a spring rod, and does not yield in the direction in which it transmits motion. These differences in the action of the two machines which I have thuB endeavored to point out are, in my opinion, substantial, and sufficient to compel the con· elusion that the defendant's arrangement is not a colorable modifica" tion in form of the plaintiff's arrangement for. regulating the length of stitch, but entitles the defendant's machine to be considered as substantially different from the plaintiff's, and not an infringement upon any of the claims of the patent under consideration. The bill must, therefore, be dismissed, and with costs.
(Oircuit Court, N. D. New York. April 1,1882.)
PATENT FOR INVENTIONS-REISSUE-ENLARGING OLAIMS.
Where plaintiff in obtaining a reissue introduced an inexact clllim, which if construed according to its natural meaning would include an invention the patent is improperly enlarged. broader than the one which waS 2.
One claim in a reissue may be void without necessarily invalidating the other claims. In such case it is ·proper to disclaim the void claim.
George W. Hey, for plaintiff. H. R. Durfee, for defendants.
SHIPMAN, D. J. This is a bill in equity to prevent the infringe. ment of reissued letters patent granted August 5, 1879, to the plain. tiff, as assignee of William Sternberg, for an improvement in cheese hoops. The original patent was granted to Sternberg March 21, 1871. The object of the bill is to prevent the use of cheese hoops known as the "Frazer hoop," which are made under the patent granted to William B. Frazer January 9, 1872. The questions which are involved in this case, viz., the validity of the reissued patent and the infringement by the use of the Frazer hoop, were decided in June, 1880, by Judge Wallace, in the case of Tyler v. Welch, 3 FED. REp. 636. At the suggestion of Judge Wallace, this case was heard by another judge, as it was thought that the recently-decided cases of Miller v. Bridgeport Brass 00. 3 Morr. Trans. 419, and Campbell v. Wright present the question of the validity of the reissue in a new light. The nature of the Sternberg invention, the difference between the original and reissued patents in the descriptive part of the respective specifications, and the method of construction of the two hoops, are fully described in Tyler v. Welch, 8upra. I entirely concur with Judge Wallace, and for the reasons which he gives in his conclusions, that the Frazer hoop is an infringement of the second claim of the reissued patent, and that there is no new matter either in the descriptive part of the specifications Or in the second claim of the rt:lissue. This claim is a substantial reproduction in different phraseology of the single claim of the original patent. The original claim was as follows: "The grooved hoop, A, a, in connection with the exp3nsible ring, B, substantially as and for the purpose herein specified." The two claims of the reissue are as follows:
"(I) An expansible ring or band, in connection with the upper part of a cheese hoop, to hold the upper edge of the bandage while being filled with curd, and during the process of pressing, substantially as specified. (2) The combination of the expansible ring or band and the cheese-hoop, grooved or depressed sufficient to receive said ring or band, so that it will not interfere with the follower, substantially as specified."
Judge Wallace was of the opinion that the first claim of the reis. sue was capable of a broader construction than Sternberg's inven· tion warranted, but was disposed to limit the claim so that it should only cover the actual invention. While such limitation is in accord· anlle with the existing rules of construction, yet, in view of the recent decisions of the supreme court, and of the fact that in this case, with
THATCHER HEATING CO.
'nch a construction, both claims of the reissue would be the same, but especially in view of the late decisions, I think that such So courSE> is not advisable, and that the claim should be declared void. The plaintiff in obtaining a reissue introduced an inexact, (,lUIID, which, if construed according to its natural meanir.g, wouln include an invention broader than the one which was made.. If such a construction should be adopted the patent would be improperly enl.arged. If on the other hand a limited construction should be given, the first claim would be substantially the same as the second, and would be superfluous. One claim in a reissue may be void without necessarily invalidating the other claims. In such case it is proper to disclaim the void claim. O'Reilly v. Morse, 15 How. 62; Schillinger v. Gtmther, 17 Blatchf. 66. In this case there has been no unreasonable neglect or delay. Whenever the plaintiff shall have satisfied the court that a proper disclaimer has been filed in the patent-office disclaiming the first claim in such manner as to claim only the invention as specified ill the second claim of the reissued patent, a decree will be entered for an injunction against the infringement of the second claim, and for an accounting of profits and damages arising under said infringement, but without costs.
TRATCHER HEATING Co. v. BURTIS and others.
(Circuit Court,8. D. New York. 1882.)
PATENTS FOR IMPROVEMENTS-WANT OF NOVELTY,
The merely advantageous bringing together of parts which do not co-operate to produce a new result, and which by their aggregation contains the advantages which resulted· before separately insevel'al structures. is not a patentable novelty.
B. F. Lee, for complainants. A. J. Todd, for defendants. WALLACE, C. J. This action involves the validity of the first and second claims of the letters patent issued to John M. Thatcher for an improvement in fire-place heaters, bearing date June 14, 1870. It is conceded that these claims are to be construed broadly, so as to cover the combination of a fire-place beater having a body projecting outwards from the mantel or frame, and a furnace-like pore tion in the chimney behind the mantel, with a fuel receptacle within