mGB"i 'D. OOLUMBa BUB;BEB 00.
HIGB"i V. COLUMBIA. RUBBER CO.
(Oircuit Oourt, D. Massacl,u8eU8. November 22, 1883.)
PATENTS FOR INvENTIONS-PRACTICE.
A decree in this case, previously entered by consent against the defendants for nominal damages and costs and a perpetual injunction, held not to he such a general decree in favor of the plaintiff as will allow him to obtain an attachment for violation of the injunction upon motion. Where a pll.tent has been fully discussed and understood in the trial of the case, and the case has not been· closed, hut' an account is being ta!l:en, such a course may sometimes be taken for convenience and the saving of ·expense, but when such is not the case a bill must be filed and the issues made up in the usual
In Equity. Gilbert M. Ptympton, tor complamam. F. P. Fish, B. F. Brooks, and H. G. Nichols, for defendant. LOWELL, J. The plaintiff filed his bill in February, 1883, alleging himself to be the owner oHwo patents for improvements in bustles,one granted to Moses K. Bortree, dated February 25, 1873, No. 136,127, and the other to himself as assignee of Henry W. Moulton, dated October 17, 1882, No. 266,}85,-and that the defendant had infringed these patents. No answer or other pleadings were filed by the defendants, and a decree was entered, by consent, for the complainant, for nominal damages and for costs, and a perpetual injunction was issued. The complainant now moves for an attachment for violation of the injunction, by an infringement of the Moulton patent. The patent of Bortree iii not in this case, at this stage of it, and should not have been sued on, as it was surrendered 10 years ago. The defendants reply to this motion that before the suit was brought they had made bustles precisely like those described in the Moulton pat· ent of 1882, in ignorance of the existence of that patent, and that they understood that those only were complained of; that the specimen of their bUEitles now produced in court by the complainant, as an exhibit of the alleged violation of the injunction, is substantially like what was made by them long before the injunction was issued, and ever since, but different from the one enjoined, and that it is not an infringement of the Moulton patent. . The plaintiff does not deny that the bustle now exhibited is somewhat different from that which was enjoined by consent, but insists that it is substantially like it, and an infringement of the Moulton patent. Both claims of that patent include in the described combination "elastics" attached to an opening in the apron, which make the bustle more comllietely adjustable than it would be without them. The defendants do not use these elastics in the bustles complained of, and the experts differ in their views of their importance to the bustle, as described by the patentee. The patent has never been construed, either by a court or by the consent of the parties, and the infringement Jepends upon a construction of the claims. Sometimf?s
it is a great convenience to the parties to bring supposed infringements to the notice of the court by motion; and, if a patent has been fully discussed and understood in the trial of the case, and if, in the light of that discussion, it is clear to the court that the change which, has been made in a machine or a manufacture is merely colorable, there is no objection to this course. When a case has not been closed, butanaccount is being taken, an arrangement may sometimes be made to instruct the master to include the profits received from the alleged violation in his account, together with such evidence as may be given of its construction and mode of operation; and if the issues are reformed so far as need be to meet this new case, there is a great saving of expense. The case upon the patent was closed months since, and, upon the present motion for an attachment, no regular issues are made up, and the evidence is taken ex parte; and it is understood that no appeal can betaken from my order. Hayes v. Fi8che.., 102 U.S. 121. Under the circumstances of the case, the plaintiff cannot justly assert that the consent of the defendants amounts to a general decree in his favor, or will aid me to construe the patent. If he wishes to enjoin the bustle nowcomplainedof"he must do it by bill in the usual way. Motion denied.
and others ".
& M. S. By. Co..
(Circuit Oourt, N. D. New York.
December 4, 1883.)
Where the specifications for a patent showed that one material part of the invention was the detachment of the piston from the piston-rod, held, that a steam bell-ringer not containing this contrivance did not infringe the patent, although the most important features of the bell-ringer were suggested by the invention of· the patentee.
In Equity. Jame8 A. Allen, for plaintiffs. Oeo. Pay80n, J. H. Raymond, and E. 8. Jenney, for defendant. WA.LLAOE, J. Although the complainant's patent of June 11,1872, suggests the principal and the most valuable parts of the combination found in the defendant's steam bell-ringer, the plain and explicit language of the specification requires a construction of the first claim which will enable the defendant to escape liapility as an infringer. The first claim must be limited to a combination in which the piston and piston-rod are detached from each other. The patentee doubtless considered that the detachment of the piston and piston-rod would assist materially in effecting one of the two expressed objects of bis invention, viz., the prevention of leakage of steam. To prevent the
Bee 7 Sup. Ct. Rep. 1S48.