Infringement of patent No. 41,395 was not shown. In rebuttal of the defendant's testimony, the plaintiff called the defendant, and now insists that he, by one answer in regard to a date, established an infringement which had not been the subject of previous testimony, and that this answer is to overthrow his uniform denial of his having made the infringing device during the life of the patent without the knowledge arid permission of t4e patentee. Such testimony is not sufficient to make out a case of infringement. The bill should be dismissed.
((lircuie Oourt, 8. D. New York.
'PATlIlNT LAW-DIB:&f;IBBAL OF
Bn,x,. Where the subject of the patent in controversy in this case hRS been by the circdt court for this district not to be patentable, such declslon is con. clusive on this court, and the bill wUl be dismissed.
James C. Cloyd and Wm. J. Underwood, Jr., for plaintiff. IIoward A. Sperry, for defendant. This is a bill in equity to rE;lstrain the alleged infringement of letters patent No. 220,767, which were issued to JohnMc.Closkey on October 21, 1879, for an improved plumbers' trap of soft metal. This patent has been twice the subject of examination by Judge WHEELEa, in the circuit court for this district. McCloskey v. I?u Bois, 8 FED. REP. 710, and 9 FED. REP. 38.. The facts which the plaintifl; proved upon the second hearing are the same which he relies upon in this case. Judge WHEELER'S opinion was that the alleged invention, which is the subject 'of this patent, is not patentable. That must be taken to be the law of this circuit until either a state of facts is proved which shall present a different case, or until the conclusion 9f law upon the facts. as now shown shall be overruled by the supreme court. My own examination of the case leads me to· concur in the result which Judge WHEELER rea.ched. The intention of.thEi plaintiffin bringing this bill "as probably to present the case 'in a clear and accurate manner that cOJ;lclusion of J ndga WHEELER might be properly by the court. TlJeplea ie sustained and the. bill is dismissed.
, .' " '. . I .. I,
(Oa'rcuitfJourt, N. D. Ohio. February Term, 1883.}
PATENTB-'REIs8UE l!n"ALID-CLAI)( TOO BROAD-LACHES.
In Equity. Arnold Green, for complainant. . M. D. <t L. L. Leggett, for defendant.
This cause came on to be heard on this fourteenth day of February, 1888, upon the bill of complaint, the plea of the defendant, certified copies of original patent No. 68,882, granted to Elizabeth Adelaidt) Lake, August 27, 1867, and of the reissue of the same, No. 9,888, granted September 27, 1881, to Elizabeth A. L. Hyatt, and argument; of counsel; and thereupon it is ordered, adjudged, and decreed 8S follows, to·wit : (1) That sltidreissuedletters patent No. 9,883, upon which said bill of complaint is based, is in"talid and of no effect, for these reasons: First, because said reis8uecontains! matter not embraced in the original; second, because the claims in said reissue are broader than the claims of the original; third, beeQ,use the patentee has been: guilty of laches in permitting morethlilin 14 years to lapse between the date of the original and that of the reissue; (2) That said plea be sustained l,and said bill of oomplaint be dis-' missed. (3) That the costs in this suit be assessed against the said complainant, and tha:t an execution issue therefor as in.a (lase at law·
(District Court, W. D. Pennsylvania. May Term, 1883,)
SEAMEN'S WAGES-SnIPprNG WITHOUT ARTICI,ES-VERBAl, AGREEMENT.
If the master of a vessel dispenses with shipping articles and disputes arise as to the rate of wages to be paid the mariners, the court will incline to allow their claim to the rate paid hy other like vessels leaving the same port at the same time on the like voyage. If the seamen can be held to a less rate, by reason of a verbal contract, such contract must be clearly established.