the skates are infringements of all the patents, but the defendants are not required to take the chances of being compelled to litigate several distinct and unconnected controversies in one suit. The demuner is sustained.
SMITH V. HALKYARD and others.
n. Rlwde island.
PATENTS FOR INVJJiNTIONS-PRIORITY OF INVENTION-EFFECT OF DECISION OJ' PATENT-OFFICE.
The decision of the patent-office upon an interference proceeding is sufficient to entitle the successful party, as against the defeated party or his privies, to a preliminary injunction upon the question of priority of invention raised in a subsequent suit. 2.
SAME-No'l1 AN ESTOPPEJ,-INJUNCTION.
While the defeated party to an interference is not estopped in another act·ion from raising the question of want of novelty in the invention, yet if he had knowledge of the condition of the art at the time of his application, a want of novelty in the invention must be clearly apparent, or a preliminary injunction will be granted.
SAME-WANT OF GOOD FAITH.
In such a case it has been held, where there is want of good faith, the court will grant an injunction. . 4. SAME-PATENTS Nos. 259,597 AND 232,561 SUSTAINED. Patent No. 259,597, granted to Stephen N. Smith, June 13, 1882, for a machine for making lacing-hooks for machines, compared with patent No. 102,195, granted to Solomon W. Young, April 19, 1870, and the Towne patent, reissued August 9, 1881, and numbered 9,837, and held not anticipated thereby. Patent No. 102,195 held valid, and defendant enjoined from constructin,l!; and using either of said. patents.
Motion for a preliminary injunction. John L. S. Roberts, George L. Boberts, and Oscar Lapham, for complainant. Wilmarth H. Thurston and Benj. F. Thurston, for defendants. Before LOWELL and COLT, JJ. COLT, J. This motion is based upon an alleged infringement by the defendants of two letters patent issued to the complainant-No. 259,597, dated June 13, 1882, covering a machine for making lacinghooks for shoes, and No. 232,561, dated September 21, 1880, for lacing-hook stock. The complainant made application for the machine patent July 28, 1879. On the day it was allowed, the defendant Halkyard ap-
SMITH V. HALKYARD.
plied for a patent upon the same machine, his appliClttion being a copy of that filed by Smith in the Canada patent-office. An interfertmce was declared, testimony was taken by both sides, and hearings had before the primary examiner, the board of examiners, and the commissioner of patents. A decision was rendered by each tribunal in favor of Smith as the first inventor. During this contest Halkyard filed a motion to dissolve the interference on the ground of prior public use of the machine for more than two years, which was overruled. The bill alleges that in· 1879 Halkyardassociated himself with the defendant Church, and that they have since, under the name of the Halkyard Manufacturing Company, (also made a party defendant,) construoted and used machines embodying the complainant's invention. The decision of the patent-office upon an interferencb proceeding is sufficient to entitle the successful pai-ty, as against the defeated pal"ty or his privies, to a preliminary injunction, upon the question of priority of invention raised in a subsequent suit. Hanford v. [email protected]
hook; the third punch cuts out the blank, which consists of the tubular neck and contiguous indentation. The blank now drops into a carrier slide, which moves backward. A presser-foot to hold the blank in place descends, and the slide carries the blank under it. A fixed tongue mounted on the bed of the machine enters the notch in the end of the carrier to give support to the blank after it has been carried backwards. The presser-foot rises and an anvil advances over the tubular end of the blank. A vertical rod then rises from underneath and bends the end of the blank, which forms the head of the lacing-hook upwards; a horizontal slide opposite the anvil then ad. vances and bends the head of the lacing-hook over upon the anvil; at the same time indents the back, the slides retreat, and the lacing. hook falls from the machine. The first claim in the patent is for a series of punches for scoring, indenting, and cutting, jointly with the feed mechanism arranged to mo.ve the stock from the first two punches to the last. The defendants contend that this was anticipated by certain patents granted to Solomon W. Young, and especially patent No. 102,195, dated April 19, 1870, which embraced the combination of two prior patents, issued to him, No. 65,035, May 21, 1867, machine for making eyelets, and No. 65,036, May 21, 1867, machine for making eyelet stock. But it seems to us that there are differences of a material character between the Smith and Young machines. In the Smith machine there is one feeding device; in the Young machine, four. The Smith machine has a prismatic punch for scoring the inside of the eyelet barrel, unlike either of the drawing or indenting punches in the Young machine. The Smith machine consists of one feed mechanism combined with a series of punches, which produce a blank composed of a scored eyelet barrel and a con.tiguous indentation, which blank, when operated upon by the other parts of the machine, becomes a lacing-hook. The Young machine consists of a combination of several punches, each with a separate feed mechanism, the product of which is an eyelet with a smooth banel. Without entering into any fuller discussion at this time, we feel s.lfficiently satisfied for the purpose of this motion, that the combination embraced in the first claim of Smith was not anticipated by the Young patents. The second claim in the Smith patent is for a combination of the cutting punch, the cB,rrier, the sliding anvil, and the vertically and horizontally moving slides arranged to act successively, and bend the blank over the anvil. It is urged that this claim was anticipated by
the Towne patent, reissued August 9, 1881, and numbered 9,837. A comparison, however, between the two machines discloses a widelJ7. different construction. This is apparent upon and it is fully and clearly set out in the affidavit of the inventor, Towne. In place of two roda in the bending mechanism of the Smith machine, the process of bending the blank in the Towne patent is accomplished by five rods operating on the circumference of a revolving circular table. The carrier in the Smith machine holds the blank during the entire process of bending; in the Towne patent it simply pushes the blank into other mechanism for holding during the process of bend· ing·. In the Smith patent the blank is cut out by a punch of proper shape, and then drops into the carrier. In the Towne patent the cutting punch,which is dome shape at one end, acts in combination with an upward moving plunger, which strikes up one end of the blank in the form of lit dome; spring grippers strip the blank from the retreating cutting punch and the blank is held upon a way or road through which a. follower moves and pushes it to the bending mechanism. With sU<;lhdifferences of construction between the two machines, and without mentioning others, it can hardly be said, we think, that the second claim of Smith was anticipated by Towne. The foregoing reasoning is applicable to the third claim of the Smith patent, which relates to the bending mechanism in the mao chine. The fourtb, fifth, and sixth claims are not pressed at this hearing. The seventh claim covers the feeding devices in combination witb the scoring and cuHing punches. It is contendi3d that this was anticipated by the Young patent, No. 102,195, before referred to. In the Young patent a spring is inserted in the dye-hole of each of the first two dies, which, by pressing against the bottom of the eye. ll't, raises it and clears it from the female die, otherwise there would be an obstruction to feeding the stock along. In the Smith machine a spring is inserted in a groove along which the stock is first fed. The spring in the Young machine could not perform the same func· I tion in the Smith machine, because the stock fed into the Smith machine has the bottom of the eyelets punched out, so that the spring would tend to enter the opening at the bottom of the eyelet and wedge the same. By inserting a flat spring in the groove forming part of the feeding device, Smith constructed a spring-Clearer, which would work upon stock having the bottom of the cup or eyelet cut out. While it may be said, perhaps, that this claim is 1es8 free from v.16,no.3-27
doubt than the others we have: considered, we do n.ot feel warranted in. holding that it is clearly void for. want of novelty. The eighth claim is for a combination of the .indenting devices, the cutting devices, the. carrier and bending devices,. operating upon stock having tubular necks, whereby the blank is folded across its middle in the Towne pat. into a U form,. and it is said tha.t aU this is ent. We are of the opinion, however, as already stated, that the mechanism of the Towne machine is very different. The Smith stock patent, No. 232,561, consists of a,narrow strip of metal provided with a series of alternate necks and indentations, and sto,ck, so, constructed is found in no other patent to which we have been referred. That the defendants use stock of this character in the production of the lacing4,ooks made by .them we think is free from doubt. , Inj UDction granted
TOWN OF PELHAM V. THE·B.
(District Court, S. D. NfIUJ York.
CONSTITllTIONAL LAW-TITJ,E OF
A.CT. Under the constitution of the state of New York, which requires that the subject of every private or local·bill shall be single and expressed in its title, it is sufficient if the title indicate the powers given in the act by reasonable implication,Bo that the public would not naturally be misled. Where the title of an !'ct was" to authorize the town to raise money to construct a town dock," heEd, that this indicated by reasonable intendment the power to charge and collect wharfage, and that the aot was not in that respect unconstitutional
RIGHT TO COLLECT WHARFAGE.
The right to collect Wharfage is a franchise resting.only upon legislative authority.
SAME-MEANING OF "WHAJlFAGE "-WHEN CHARGEABLE.
The town having by resolution declared that the rates of wharfage for the town dock should be "one cent per ton per day; all goods to be allowed to lie on the dock 24 hours free of charge; after 24 hours to be charged five cents per ton per day,"-held, that the wl1'arfage referred to was the ordinary use of the wharf by vessels afloat in leading or unloading, or mooring for safety in the )rdinary course of commerce; and that the resolution did not authorize the as for" wharfage" against a vessel while she lay scuttled and sunk between high and low water mark, at a distance of 10 or 15 feet from the wharf, and fastened thereto by only one of several lines, others being attached to the shore.