LOOKWOOD v. OUTTER TOWER
TJOOKWOOD v. CUTTER TOWER liO.
(Circuit Oourt, D. Massachusetts. November 22, 1883.)
PATENTS FOR INVENTIONs-APPLICATIONS FOR THE SAME lNVENTION.
The plaintiff adjudged to be the first inventor of an " improvement in Indiarubber erasers," for which letters patent No. 167,455, dated September 7,1875, were granted to him, as against letters patent for the flame invention, No. 233,511, granted to one Holton, October 19, 1880. See Lockwood v. Uutter l'oweT 00. 11 FED. REP. 724; Sama v. OlefJaland, 18 FED. REP. 37.
Browne, Holmes rJ: Browne, for complainant. Allen, Hemenway rJ: Savage,for defendant.
Before LOWELL and NELSON, JJ. , LOWELL, J. The complainant has a patent, No. 167,455, dated September 7, 1875, for an "improvement on India-rubber erasers," and Francis H. Holton in 1877 applied for a patent for the same invention, and after a hearing upon interference with the present complainant, and several appeals, a patent was granted to Holton, October 19, 1880, No. 233,511. The case .was found by the patent-office to be a difficult one. The primary examiner adjudged Holton to be the first inventor, and entitled to a patent. The board of examiners in chief decided that if Holton was'the first inventor he had not used due diligence in perfecting and patenting his inventio.n, and that Lockwood had p'ut the invention into public use some days more than two years before Holton applied for his patent. The commissioner of patents held that Holton was the first inventor, but that he had ,permitted the invention to go into public use for more than two years before his application. The supreme court of the District of Columbia reversed this decision and ordered the patent to issue to Holton. The opinion of the court is not given in the record, but it is plain that three dif· erent coltclusions were arrived at by four able and competent authorities, the last of which came back to the opinion of the primary ex' aminer. The case was before us last year, and we expressed the opinion that one of the defenses was not made out, but as a case had been pend. 'ing for some time in the district of New between the ,complainant and the owner of Holton's patent, we thought best· to ooquire the complainant to prosecute that Buit, which was between the principal parties representing the hostile patents, rather than to deoide this caSE: begnn later, in which the.defendant company merely sold the goods which were made under Holton's patent. Lockwood v. Gutter Tower Go. 11 FED. REP. 724. The case in New Jersey has now been decided by Judge NIXON upon the same evidence which is before us. He holds that Lockwood was the first inventor, and that Holton's patent is void. Lockwood v. Cleveland, 18 FED. REP. 37. We have
examined the record again, and agree with the conclusions reached by the circuit court in New Jersey. We refer to the report of that case for an examination of the facts and a history of the invention. Judge NIXON does not. say in so many words that the invention had not been in public use· more than two years bofore Lockwood applied for his patent; but that 'is a necessary part of his decision, for if he had found Lockwood's patent to be void he would have so adjudged. Lockwood v. Cleavela.nd, 6 FED. REP. 727. Rolton testifies that he made the discovery by accident in March, 1872, which was more than two years before Lockwood's application, and that he gave some samples to his friends; but Judge NIXON says he "gave the products of said experiments to his friends for trial and approval," arid this seems to us to be the fact. The use was experimental. .Besides, it is far from clear that those samples were given in 1872. 1n the matter of dates his witnesses are vague. We conclude, therefore, that Lockwood is entitled to.(I. decree. Decree for complainant.
(}ourt, S. D. NfJIJ) York. November 19,1883.)
PATENTS FOR INVENTIONS.
Patent No, 276,430 sustained.
WHEELER, J. This suit is brought upon letters patent No. 276,430, dated April 24, 1883, and granted to the orator for a gauge for forming foundations for artificial flowers. The only question arising upon the pleadings and proofs is made by the testimony of the defendant Hofheimer in stating that he does not think there is any invention in the pa.tent. No reasons are given for this opinion, and none are apparent sufficient to overcome the p1'ima facie effeetof. the patent. On the contrary, the device seems to ·be quite ingenious, and well worthy :to be called the result of the exercise of inventive faculties, especially in the absence of any proof of prior contrivance of this sort. Let there be a decree for the or(ttor for an injunction and account according to the prayer of the bill, with costs.
Joseph C. Wolff, for orator. Thoma;s .F. Byrne, for defendant.