themselves or by the aid of other devices; but that if one party consented to make the burner, and another party the chimney, and each was sold to be used with the other, the parties must be deemed to be joint infringers of the patent, and that each was liable for all the damages. The learned judge drew the inference of an actual concert between the parties from the nature of the case, and the distinct efforts of the defendants to bring the burner in question into use, which could only be done by adding the chimney. He admitted that he found no proof "that the defendants had made an actual prearrangement with any particular person to supply the chimney to be added to the burner; "but," says he, "every sale they make is a proposal to the purchaser to do this, and his purchase is a consent with the defendants that he will do it, or cause it to be done. The defendants are,therefore, active parties to the whole infringement, consenting and acting to that end, manufacturing and selling for that purpose." '1'he principle of the above case, after careful consideration, was indorsed by this court in Turrell v. Spaeth, 8 O. G. 986; by Judge SHEPLEY in Saxe v. Hammond, 1 Ban. &. A.. 652; by Judge LOWELL in Bowker v. Dows, 3 Ban. & A.. 518; and again by the same learned judge in Richardson v. Noyes. 10 O. G. 507. Let a decree be entered for the complainant, with costs.
/Oircuit Gourt, D. New Jer8fY/1. July 31, 1884.)
1. PATENT-ToPHAM'S PATENT FOR "IMPROVEMENTS IN SPITTOONS."
The invention claimed by Topham in his second claim of reissued lettete patent (No. 5,514) is void for want of novelty.
SAME-VOID EXPANDED CLAIM-EFFECT AS TO OTHER OLAIMS.
Although a reissue may be void as to new or expanded claims, it may still be held good for claims that are not expanded, or which do not show a different invention from the original patent.
Wetnwre, Jenner rt Thompson, for complainant. . A., B. Cruikshank, (with whom was F. P. Fiteh,) for defetidants. NIXON, J. This bill is filed·forthea.lleged infringement of the second cllfim of Topham's reissued letters patant No. 5,514, 'and dated July 29, 1873, for "improvement inapittoons." The claim is asfollows:
!l.]lbstantia:\yasand for thepnrposes8J?ecified."
of material of which the' bottom of the spittoon or siinilar vessel iscomp9soo,
Three defenses ara set up: (1) The invalidity of the reissue, as for a different invention from the original; (2) the want of novelty of the invention, in view of the prior state of the art; (3) non-infringement. 1. The first cannot be maintained. The objection to the reissue is that the first claim thereof is an expansion of the first olaim of the original patent, which applied the invention only to spittoons, pails, and vessels made of paper; whereas, the reissue is designed to make it applicable to all spittoons, pails, or vessels, liable to be over· tumed, without regard to the material of which they are oomposed. As the present suit is not upon the first claim, it is unnecessary to express any opinion concerning the correctness of such an objection. The second claim of the reissue, for the infringement of which damages are demanded, is the same as the second claim of the original, and it is now well settled that, although a reissue may be void as to new or expanded claims, it may still be held good for claims that are not expanded, or which do not show a different invention from the original patent. . 2. The second alleges a want of novelty. Waiving any ewression of opinion in regard to the several patents which the defendant put in evidence to show anticipation of Topham's second claim, I cannot resist the conviction that his alleged invention was in Pllblic use. in Ohicago before the date of the issue of his patent, to-wit, August 2, . 1870, which, in. the absence of all proof to the con.trary, be regarded, for the purposes of this case, as the date of hiE! invention, , Six witnesses have been called-three by the complainant and three by the defendant-in regard to the manufacture and sale of cuspidors by the firm of Crerar, Adams & Co., carrying on business at Nos. 11 and 13 Wells street, Chicago, during the years 1868, 1869, and 1870. They all !1gree in the statement that during these years large quantities of cuspidors with weighted bottoms were sold to railroads and hotels, and that they were generally loaded with lead, or mixtures of scrap metal melted together. But Sararan Muller, who packed all the goods manufactured by the firm,an.d J OSEjph Kruselin, one.ofthe' workmen, testify that at the 1?eginning and during the year 1868 a number of spittoons or. cuspidors were manufactm:ed, loaded with sand in the bottom, and that' when sand was used it was secured and heldipplace by a tin plate, which was soldered above and on the top of the sand, andwhicb. forme4.Jheinside bottom of the vessel. One of the members of the firm,:Mr; McGregor Adams, confirmed their testimony to the extent of 'asserting that, while he does not remember seeing the s!tnd used, he haea p()sitive recollection that the workmen told him; (Httirtg'tne.year, that they were making l1!nd loading their bottoms . with,sarid, .secured byametal plateovedhe sand. ,Muller and Kruselinentet into 8dch particular!Hn tegard to the 'safidbeing brought :fromthe lake to the manufaCtory'in bamilS';an:ditsfrequeutfiae by them, iUi t.he. tba.ti.u..
facture, that their evidence must be accepted as true. The fact is uncontradicted, except by the negative statement of the three witnesses summoned by the defendant, who are able only to say that they have no recollection that sand was ever used by the firm in weighting the bottom of spittoons or cuspidors. The invention claimed by Topham in his second claim is so accurately described by these manufactures of the Chicago firm, anticipating the date of his patent, that I must hold the claim to be void for want of novelty, and dismi,ss the bill of complaint, with costs.
(Oircuit Oowrt, D. Ne1D Jersey. July 31,1884.)
PA'l'ENT-BOTTOVS OJ!' CUSPIDORS-DISMISSAL OJ!' BILL.
Law announced in decision in case of Havemeye7 v. Randall, ant,. 404, applied to this case.
NIXON, J. For the reasons assigned in the case of The Complainant v. Randall, ante, 404, in which the same questions are involved, the above bill of complaint must be dismissed, with costs; and it is ordered accordingly.
WORDEN and another
(Oircuit (hurl, D. New JBrBeY. July 22, 1884.)
In hearing a case formerly tried before another court, no new question being suggested or newly-discovered evidence adduced, the judgment of the former court should be assumed to have been correct. 2. 8,AMJIl-PATENT WHIP-fiOLDERS-INVALID (,UIM-CoSTs-REV. ST. f 4922. The invalidity of a new claim in a reiBBue does not render a patent void or impair the validity of the first claim, and suits may be maintained on 'the parts which the patentee is entitled to hold, although if such suits are commenced before a disclaimer is entered no costs can be recovered.
PATENT LAW-JUDGMJIl:NT IN TRIAL OJ' BAMJIl ISSUES BEJ'ORE ANOTHER CoURT.
InEquity. Sprague It Hunt, for complainants. T. P. Fitch, for defendant. NIXON, J. This is a suit in equity. brought for the infringement of the first, second, and third claims of certain reissued letters patent, dated February 18, 1879, and numbered 8,581, for "improve-