THE: LALANCE: ING
& GROSJE:AN MANUFACTUR-
(O£rouit Oourt, S. D. New YorTc. April 28,1880.)
l' ATENT-BILL FOB INFRINGEMENT OF SEVEBAL PATENTS-PLEA TO WHOLE BILL-PBACTICE.-Where a bill was filed for the infringement of several patents, to which a plea that said patents were not connected in one mechanism, or conjointly used, was interposed, general replication made, and proofs thereon taken, held, that as the plea did nothing butdenyan averment in the bill, the complainant was entitled to recover, if it appeared that the defendant's structure embodied in it an invention covered by only one of said patents. EQUI'I'Y PLEADING-PLEA-BAD IN SUBSTANcE.-Plea to the whole hill in this case averring that the several patents set forth in the bill, are for separate and distinct inventions, not in point of fact connected together in use or occupation, and not in fact conjointly embodied in any mechanism manufactured by defendant, held, bad in substan<:e.
MATTHEWS V. L. & G. MANUF'a CO.
has made, constructed, used, and vended to others to be used, soda water and other fountains, each made according to, and employing and containing, the inventions described and claimed in each of the ahove-named letters patent and reissued letters patent." The plaintiff put in a general replication to the plea, in the form of the usual general replication to an answer, sub.stituting the word "plea" for the word "answer." Both parties have treated the putting in of this replication as taking issue on the plea, within the meaning of rule 33, in equity, and have taken proofs on the question as to whether a certain structure made by the defendant contains mechanism covered by a claim or clause in each of the five patents sued on. The testimony for the plaintiffs is addressed to establishing the fact that each of the five patents is infringed by such structure. The testimony for the defendant ignores three of the patents, and is addressed to establishing the fact that two of the five patents are not infringed by such structure. The case has been heard on these pleadings and proofs. The plaintiff asks for a decree overruling the plea, with costs, on the ground that the defendant's structure infringes each of the five patents, and granting the injunction against infringement which the bill prays for, and refusing to the defendant leave to answer the bill. The defendant asks that the bill be dismissed, with costs, on the ground that the defendant has proved that two of the patents are not infringed by the defendant's structure. The defendant, contending that two of the patents are shown not to have been infringed, invokes the rule that the plaintiff, by replying to the plea, admits it to be a valid plea, if true, and thus admits that he cannot recover in the suit unless the defendant's structure embodies an invention claimed in each oue of the five patents. As setting forth this rule, the cases of Hughes v. Blake, 6 Wheaton, 453, 472; Rhode Island v. Ma.ssachusetts, 14 Peters, 210, 257; and Myers v. Dorr, 13 Blatchf. C. C. R. 22, 2Ct, are cited by the defendant. The general rule is, undoubtedly, as' stated; but 1ll this case the plea does nothing but deny an avermentot
the bill. What is set up in the plea amounts to no more than denying and ],'.lgativing the allegation of the bill as to the matters to which the plea relates. On an issue as to 8uch an allegation, whether such an issue be raised by an answer or by a plea, the plaintiff cn. recover, even though it should appear that the defendant's structure embodies in it inventions covered by only one, or two, or three, or four of the five patents. The plaintiff must make the averment as to all five of the patents in order that he may have the opportunity of endeavoring to show that all five are infringed by the structure, but he will not fail of relief even though he succeeds in showing that only one of the five is infringed. The rules of equity practice (and the rule referred to is merely one of practice and not one of substantial right) are not so rigid and inflexible and procrustean as to require that the plaintiff should, in this case, be held to have put himself in the position, by taking issue on the plea, of losing the benefit of a right to recovery which. he would have had if the same matter set up in this plea had been set up in an answer. The language employed by text writers and in the cases cited is to be interpreted with reference to the facts of the cases to which the language was applied. Undoubtedly, pleas in some cases are allowable, in equity, which deny merely an allegation of the bill. An instance of this is found in Burnham v. Rangely, 1 Woodb. & M. 17, where the bill described the plaintiffs as citizens of New Hampshire and the defendant as a citizen of Maine, the Buit being in the circuit court for Maine. The defendant pleaded that he was not a citizen of Maine when the Buit was brought, but a citizen of Virginia. If he, was not a citizen of Maine the court had no jurisdiction. Issue was joined on the plea. If the plea was true the plaintiff could not recover. But, in the present case, the plaintiff may recover, even though the plea is true. In Hughes v. Blake, supra, the court, without applying to that case the rule referred to, held that the matters set forth in the plea constituted a complete defence to the suit. In Rhode Island v. Massachusetts, supra, the court, while announcing the general rule and overruling the plea as mul·
MATTHEWS V. L. & G. MANUF'G CO.
tifarious,-issue not having been joined on it,-said: "It is the strict and technical character of these rules of pleading, and the danger of injustice often arising from them, which has given rise to the equitable discretion always by the court of chancery in relation to pleas." In Stead's Ex'rs v. Cour.se, 4 Oranch, 403, there was a plea, a replication to it, and testimony to support the plea. The circuit court sustained the plea, and dismissed the bill. The supreme court say: "The only questions before this court are upon the sufficiency of the plea to bar the action, and, the sufficiency of the testimony to support the plea, as pleaded. On the first point the counsel for the plaintiff has adduced authority which would certainly apply strongly, if not conclusively, in his favor, if a special demurrer had been'filed to the plea; but, as issue has been taken on it, the court thinks it sufficient, since it contains in substance matter which if true would bar the action." The plaintiff contended that the plea was substantially defective, and contained defects which could not be considered as cured by the replication. The court, notwithstanding the replication to the plea, examined the plea so far as to see whether it was a good plea in substance. In the case before us the plea is clearly badin substance. Rule 33, in equity, provides that "if, upon an issue, the facts stated in the plea be determined for the defendant, they shall avail himself as far as, in law and equity, they ought to avail him." If the court should determine for this defendant the facts stated in this plea, they ought not to avail the defendant to secure a dismissal of the bill, the plea being to the whole bill. No case has been cited, or is found, where, on such a bill, and such a plea, and such an issue, the court hal'l refused to look into the substance of the plea, or has dismissed the bill when the plea was bad in substance, although the facts set up in the plea were true. Even though the facts stated in this plea should be determined for the defendant, the proper disposition of this case would be to overrule the . plea as bad in substance; therefore, the testimony taken on the issue need not be examined. The plea must be over-
ruled, and, under rule 34, with costs. Under the same rule the defendant will be allowed to answer the bill, 'on payment of such costs, within twenty days.
and others v.
(Circuit Court, 8. D. New York.
PATENT-IMPROVEMENT IN POCKET
April 29, 1880.)
RIVETS AT EDGE OJ'
OPENIKG.-The use of metal rivets, or eyelets, in fastening the end of seams in clothing, at pocket openings, so as to receive the strain from pressure within, keep the same from coming upon the threads of the seam and prevent ripping, is a patentable invention.
M. A. Wheaton and George Gifford, for plaintiffs. Gilbert W. Plympton, for defendant. BLATCHFORD, C. J. This suit is brought on re-issued letters patent granted March 16, 1875, to Jacob W. Davis and Levi Strauss & Co. for an "improvement in pantaloons," etc., the original patent having been granted to them May 20, 1873, on the invention of said Davis. The specification of the that Davis has invented an "improvement in re-issue fastening seams." It proceeds: "My invention relates to llo fastening for pocket openings, whereby the several seams are prevented from ripping or starting from frequent pressure or strain thereon; and it consists in the employment of a metal rivet or eyelet at each edge of the pocket opening, to prevent the ripping of the seam at those points. The rivet or eyelet is so fastened in the seam as to bind the two parts of cloth which the seam unites together so that it shall prevent the strain or' pressure from coming upon the thread with which the seam is sewed. In order to more fully illustrate and explain my invention, reference is had to the accompanying drawing, in which my invention is represented as applied to the pockets of a pair of pants. Figure 1 is a view of my invention as applied to pants. A represents the side seam in a pair of pants, and bb represents the rivets at each edge of the pocket opening. The seams are usually ripped or