. B. B. Foster, for the United States. B. F. Tracy, for accused. BENEDICT, J. The prisoner was indicted under section 5457 for falsely making coins in the resemblance and similitude of a coil\ coined at the mint of the United States known as the trade dollar. At the trial it was shown that the accused made certain coins com· posed of tin and antimony, resembling in shape and design the trad(' dollar. There was also testimony showing that the accused intended to coat these coins with silver before putting them in circulatioll The jury was charged that no conviction could be had unless the caim put in evidence were found to bear such a resemblance to the genuiw trade dollar as to render them capable of being used to deceive l person of ordinary intelligence; and that the prisoner could be convicted if the jury found that he made the coins with intent to circulate them, and had carried the manufacture so far as to produce coins capable of being uttered as genuine trade dollars, notwithstanding there was evidence that he intended to coat the coins with silver before putting them in circulation. The charge was correct. It is true that, in one sense, the coins were unfinished; that is to say, they were not finished as the prisoner intended to finish them. But in another and a truer sense they were finished, for they were capable of being put in circulation as genuine coin. So the jury have found. The ingredients of the offense created by the statute are an act and an intent. The act is making a false coin capable of being circulated as genuine. The intent is an intent to defraud. The jury found both act and intent proved,-and properly, for the character of what the defendant did when he made the coins was in no sense. modified by proving his intent to carry the manufacture of the coins a further stage in order to make their resemblance to the genuine more com· plete. Whatever he may have intended to do in the future, when the accused made coins so like the genuine trade dollar as to be capable of doceiving persons of ordinary intelligence, he did the act described in the statute; and, having done that with intent to defraud, he committed the offense charged. Motion for new trial denied.
and another v. FRIEDMAN and another.
(Oircuit Oourt, S. D. New York. January 4, 1884.)
No. 4,802-1NFUINGEMENT. Design letters patent No. 4,802, dated April 11, 1871, and granted to William H. Walton for a design for printed material for gored skirts, consisting of printing a series of gore-shaped patterns, made to match around the lower edge in II skirt, the narrow end opposite the hroad end of another, on a piece of woven fabric, so as to fill the width of the fabric, leaving blank spaces for seams, with
DRYFOOS V. FRIEDMAN.
dotl!'d lines in the blank spaces by which to divide the fabric into part.s, having each a pattern of proper shape to be together !nto a full skirt, are not infringed by the gore-shaped ac?ordmg to the.paten.t, but ready divided, ready to be sewed together.Into skIrts, or by cuttmg RkirtfabriCs wIde of placed .alterprinted with gore-shaped' patterns, uateIy opposite the narrow' ends, fillIng the WIdth of the fabrIc, but wIthout blank spaces for seams or lines or marks by which to divide thcm other than the outlines of the patterns.
SAME-DIFFERENCES IN DESIGN.
The differences in designs necessary to take away their Identity In law are such appearances as would attract the attention of an ordinary observer, giving such attention as a purchaser of the articles in question, for the purposes for which they were intended and purchased, would usually give. There may be an infringement of a patented design without taking the whole of it, but in such cases the part taken must be a part covered by the patent.
SAME-INFRINGEMENT OF PART OF DESIGN.
In Equity. Edmund Wetmorll, for orators. Roderick Robertson, for defendants. WHEELER, J. The orators own design letters patent No. 4,802, dated April 11, 1871, and granted to H. Walton for a design for printed material for gored skirts, consisting of printing a series of gore-shaped patterns, made to match around the lower edge in a skirt, the narrow end of one opposite the broad end of another, on a piece of woven fabric. so as to fill the width of the fabric, leaving blank spaces for seams, with dotted lines in the blank spaces by which to divide the fabric into parts having each a pattern of proper shape to be sewed together into a full skirt. The claim is for the "shape or configuration of a series of patterns for gored skirts printed upon a piece" of fabric, as shown and described. This suit is brought for relief against infringement. The answer does not deny the validity of the patent, but denies infringement by the defendants or either of them. The proof shows that the defendant Abraham I. Friedman sold a lot of gore-shaped patterns printed according to the patent, but already divided, ready to be sewed together into skirts, to a person sent to purchase them for the orators, and that he has cut up skirt fabrics printed with gore.shaped patterns, the wide ends of which were placed alternately opposite the narrow ends, as specified in the patent, filling the width of the fabric, but without blank spaces for seams, or lines or marks by which to divide them, other than the outlines of the patterns. There is no proof whatever that the defendant Daniel F. Friedman has in any way done anything himself that is claimed to be an infringement, or that he has been in any way connected with Abraham 1. Friedman in what he has done that is claimed to be an infringement. The invention would seem to have been better adapted to a patent for a manufacture than to one for a design. Olark v. Bousfield, 10 Wall. 133. But as a design patent was asked for and granted, and is not attacked, it must stand good for what it will properly cover. The "ale procured by and to another for the orators, would not of itself
probably be an unlawful infringement of which they could justly complain; yet, when made in the usual course of business, as of goods kept for sale, it might be evidence of sales of ,similar goods to others. Still, as the patent is not for the design of the patterns or united in a skirt at all, but only for the design of the series of patterns as printed on the piece of fabric, it is not easy to see how the sale of the patterns divided could be an infringement of 'that patent. The design patented would not be there in that sale, imd might not have been present in any use by that seller. When the piece of fabrio was separated, and the patented design gone, there would not seem to be any infringement by a subsequent user or seller Qf the parts who WM innocent before. But the outting up of the fabric would undoubtedly be an unlawful use, if the fabrio cut up was an infringement. The only evidence that Abraham I. Fried. man cut up such fabric comes from his own cross-examination as a witness for the orators. In testifying to what he so used, he states that it is the same as used by him in 1868. If this is taken to be about which nothing prior to its grant true, as the rest is, the is shown, could properly cover nothing but the improvement upon this, which would be merely the blank spaces for seams and the lines in these spaces by which to divide the patterns. As this defendant does not use these spaces nor lines, in this view, he would not infringe. Further, the prior printing of patterns upon woven fabrios for cutting apart and making up is well shown by other evi· dence. The patent could properly cover the improvements upon such, if this defendant's testimony as to what he had done before should be laid aside. As this patent, as before mentioned, does not cover the patterns, the improvements would consist in the design of the. arrangement of them on. the fabric, advantageously to be di. vided, for the fabric was not intended for use whole, but only by cutting the patterns apart. 'rhe spaces for seams, and lines in them to divide by, were prominent and important. The appearanoe of the pieces of fabric with and without these spaces and lines might be so nearly the same that the difference would not attract the attention of a disinterested observer. but it would at once be noticeable to ordinary purchasers or users of such material. The differences in designs necessary to take away their identity in law are understood to be such appearances as would attract the attention of an ordinary observer, giving such attention as a purchaser usually gives. Gorham 00. v. White, 14 Wall. 511. This, of course, means purchasers of the articles in question for the purposes for which they were intended and are purchased. A purchaser of these fabrics would, ordinarily, be a person intending to cut them up and make them into skirts or sell them to others to make into skirts. A pur· chaser of ordinary observation, with that intention, would notice at once these prominent facilities for accomplishing those purposes. To such a person the design patented and that used by the defend·
ant would be quite different. As argued for the orator, there doubtless might be an infringement of a patented design without taking the whole of it, but in such cases the part taken must be a. part covered by the patent. Richardson v. Miller, 12 O. G. 3; Wood '\T. Dolby, 7 FED. REP. 475. The orators do not appear to have shown that the defendants or either of them infringe. . Let there be a decree that the defendants do not infringe, and that the bill for that cause be dismissed, with costs.
NOEL and another.
(Cirouit Court, S. D. New York. January 3,1884.)
PATENTS FOR INVENTIONS-ANTICrPATIONS--INDEFINITE DESCRIPTION.
Patent No. 184,933, dated November 28, 1876, granted to AlexanderVogeIey for an improvement in apparatus for beveling.glass plates, and consisting of a truck moving by hand on ways of proper height, carrying an adjustable table for holding the plate at desired angles against the grinding wheel, was not anticipated by the French patents of Remongin & Jesson, No. 60,174, dated l:3eptember 18,1863, and of Jaubert, No. 94,457, dated March 7,1872, nor is such patent void for want of explanation of the principle of the apparatus, and the best mode of applying it.
In Equity. E. Bartlett, for orator. O. Wyllis Betts, for defendants. WHEELER, J. This suit is brought upon letters patent No·. 184,933, dated November 28, 1876, granted to the orator for an improvement in apparatus for beveling glass plates. The defenses are want of novelty, and want of explanation of the principle of the apparatus, and the best mode contemplated of applying it. The apparatus consists of a truck moving by hand on ways on a frame of proper height, carrying an adjustable table for holding the plate at desired angles against the grinding wheel. The anticipation relied upon to show lack of novelty are several patents, l!'rench, English, and American, the most prominent of which, for this purpose, are the French patent of Remongin & Jesson, No. 60,174, dated September 18, 1863, and that of Jaubert, No. 94,457, dated March 7, 1872. The former is for mechanism for adjusting the grinding wheels to the plate; and the latter is for a truck moved by machinery on ways on the floor <larrying an adjustable table similar to the orator's. The former does not accomplish the same result in the same way as the orator, and leaves his invention good for his way, even if the way shown in that patent was practicable, which does not very satisfactorily appear. The testimony shows clearly that the 8uccessful beveling of these plates on grinding wheels requires that the plate in its motions should