V. ELKIHSMAHOF'G .. GAS 00.
,Oircuit Oourt, N. D.
(JUSTOllS DUTIES-BILK AND COTTON BUAWLS,
January 22, 1884.)
Certain shawls worth 15 shillings and 6 pence, containing one shtlling and six pence worth of silk, and the rest cotton, held, subject to a duty of 35 pel' cent. only, as" shawls, cotton chief value," instead of 60 per cent., as" wearing apparel, silk chief value."
At Law. Storck If Schumann, for plaintiff. Gen. Joseph B. Leake, Dist. Atty., for defendant. BLODGETT, J. The only question in this case is whether certain shawls imported by the plaintiff and which were classed as "wearing apparel, silk chief value," and charged with duty at the rate of 60 per cent. ad valorem, were improperly so classed and should have been classed as "shawls, cotton chief value," and charged with duty at 35 per cent. ad valorem. The proof shows, without dispute, that much the larger component in value of these shawls is cotton. According to the proof the value of these shawls was 15 shillings and 6 pence each, while, if all cotton, they would have only cost 14 shillings each, thus showing that they contained only a very small proportion of silk, and that their value was not increased over 1 shilling and 6 pence by the silk they contain. The issues will be found for the plaintiff.
KIRK and another v.
Multnr'a & GAB Co.J
(U6rMt Court, E. D. PennsUloa'Tl.ia. February 13, 1884.) _
PATENT FOR INVENTION-INFRINGEMENT.
Patent No. 201,536, for improvement in bronze alloys, not infringed hy defendant's metal or alloy, known as "Ajax Metal." in which copper, tin, and arsenic occur in proportions dilferent from the proportions specified in complainant's patent.
Hearing on Bill, Answer, and Proofs. This was a bill to restrain an infringement of ,patent No. 201,536, dated March 19, 1878, for improvement in bronze allo)'s, issued to Edward C. Kirk. H. T. Fenton, for complainants. John G. Johnson, for respondents.
by Albert B. Guilbert.
of the Philadelphia bar.
McKENNAN, J. The compound described and claimed in the patent consists of in the proportion of 75 to 90 parts of copper, 10 to 25 parts of tin, and one·fifth of 1 per cent. to to the copper and tin when the 10 per cent. of arsenic. to be latter are at the melting point in the crucible. The patentee was not . the first:to produce an alloy of and tin. The specification shows that castings of these metal1ic constituents were made before the date of the patent; and, indeed, the patent of Randall, for a metal alloy of copper, tin, and arsenic, is expressly referred to. The 'patentable novelty of the described alloy consists, then, in the proportions in which the copper and tin are compounded and in the addition thereto, in the process of of .tl;te prescribed quantity of arseni'C; for the purpose of deoJi:idizing th-e metallic oxides always ,found in ordinary alloys of 'copper and tin. The only evidence of infringement is furnished byanlj,lyses ofi b6rihgs froms6veralsamples of Ajax metal manufactured,by the respondents. These show it to be composed of copper, tin, zinc, lead, 'and'arsen'ic;eopper within the range of pro. portion stated in the patent,tin and ars,enic generally below the mini. stated 'and lead and zinc in proportions, as high as f3per ce'nt. Whitt differential effect lipon the character andpropertiesof tIle compound resu1ts from the, reduced proportiolls of tin and ars;enicand the. addition of lead and zinc we areuninfonned by the evidence ; but,it ieclear that so far as the constituents of the two' compounds are concerned they are nbtthe same. But the respondent/!, denfthat they have added arsenic to the other metallic components 'of their alloy, and allege/that whatever portion of arsenic it may be found to contain was only in combination with the copper, which they used in its natural state. This is fully sustained by the testimony of their superintendent, who was alone cognizant of the ingredients of their compound. He says he desired to get ridJlf aU., could, and hence that no ar· senic was artificially introduced; that he used only the copper of commerce, whiah always contains more or less arsenic; and that he began the use of this in the manufacture of Ajax metal in 1874, and hlj.scontinued to useit since withoM material change in proportions. Considering, therefore, that the alloys manufactured by the com· plainantsand the respondents, respectively, are not constituently the same, and that the respondents have not used arsenic except as it may have been found in with commercial copper, and that their use of ,this begauin 1874, we cannotad'judge them to be infringers,' and the bill must therefore be dismissed, with costs.
(Circuit (Jourt, S. D. NetJiYork. February 20,1884.)
t'BELDlINARY INJUNCTION-WHEN TO BEGRANTEI!.
A injunction will not be granted while another to tb,e is in force in a different suit. .
elleet . I
Edward N. Dickerson, Jr., for orator. R08coe'Conkling and Samuel A. Duncan, for defendants.
WHEELER, J. This cause has been heard on the motion of the tor for a preliminary injunction to restrain infringement of the second claim of the orator's patent.. In a prior suit in this court, 80 lately brought by the orator against these same defendants that the time for an answer and taking of testimony ha's not yet expired, a preliminary injunction the defendants from infringing this second and the third claims of the patent has, on motion of the orator, been granted, and is still in force. The time for pleading in bar the pendency of the first suit has not arrived. In an affidavit by an expertj filed by the orator on this motion, it is stated that he is faniiliarwith the patent, and made an affidavit on the fornler motion, and that the apparatus claimed to be an iIifringement on this motion "is in all material respects, so far as the second claim is concerned, the same apparatus as that enjoined in the previous motion." The defendants object to this mode of procedure by a new bill, and cite Wheeler v. McCormick, 8 BIatchf. 267. The orator insists that it is proper to file successive bills for successive infringements, and cited Rigby v. Columbia Rubber Co. 18 FED. REP. 601. . It is also urged in support of the orator's position that the prior suit could not be maintained on an infringement subsequent to the fili,ng o(thafbill only; while this may be, and that that may fail and this sucooed. .That is one ground stated by WOODRUFF, C. J., for maintaining the second suit in Wheeler v. McCormick, although the principal ground was that the prior suit was in another district and circuit. That reason does not obtain here, however, as this case now stands, for it is adjudged in thEl prior suit, and that adjudication still stands insisted upon by the orator, that there was an infringement prior to the filing of the former bill sufficient to uphold it to an accountiug and final decree. That the ing in that case would extend to the ,time of taking, and cover the infringement now aimed at, is not at all questioned. That ·distinguishes this cilise from what waS said by LOWELL, J., in Rigbyv.Columbia Rubber Co. There the account had been olosed, and although the former injunction was in force a 'new bill w'ouldbe neoessarytofuU relief for the ,new infringemimt. is alsourged that as a proceeding for conteuipt would be a harsher remedy thn a motion fori a >new injunction, the injunotion might be granted" On a case on which,the