NOBTON 11. HAIGHT.
enough to say that the proof in this case shows abundantly and conclusively that George W. Brown used scrapers upon machines which he manufactured in the year 1861, and over 1,100 of which were put into the market and sold in the spring of 1862, where the scrapers used are precisely the kind shown in the Bergen patent No. 46.629. It is true, that courts are qsually wary in allowing parol evidence to defeat a patent; but the proof in this case is so complete and satisfactory as to the number of machines made, the time when they were made, and one of the original machines is also produced in evidence, with the testimony of the persons who bought it in 1862 and used it that year, showing an automatically-acting scraper, precisely as described in the Bergen patent, that it leaves no room for doubt that this device was well known, and in public use for at least three years before the date of the Bergen patent. The bill is therefore dismissed for want of equity.
MoFARI,AND fl. BROWN. (Circuit Oourt, N. D. llli1Wis. January 5, 1884.)
In Equity. J. G. Manahan and C. H. RoblJ'l'tB, for complainants. John R. Ben'Mtt, for defendant. BLODGETT, J. This case was argued and submitted upon the same proof as the case of this 8MM Complainant v. DelJ'l'e tI: Mansur Manuf'g 00., ante, 781, and the reasons which led me to the conclusion that there was no infringement in the first case are equl\l1y l\pplicable to this case. The bill is therefore dismissed for of equity.
NORTON V. 1IA.IGHT.
(O(rcuit Oourt, N. D. Illinois. November 25, 1884.)
proved paint-can having a top with an annular disk, with an upward projectlUg bead, presenting a round, smooth surface to the brush, compared with patent No. 225,499, issued to Francis A. Walsh, on March 16, 1880, for a paint-can having a top with a similar annular disk, but with a sharp upturned inner edge, and held not infringed thereby.
070 AND 225,499. Patent No. 209,070, granted to Edwin Norton, October 15, 1878, for an im-
Patent No. 209,070 did not differ substantially from the patent granted to H. M. Olark, October 1. 1872, for an .. improvement in dredge-boxes," and was not a patentable invention.
In Equity. Munday, Evarts il Adcock, for complainant. N. O. Gridley, for defendant. GRESHAM, J. The complainant, by this suit, seeks to enjoin the defendants from infringing letters patent No. 209,070, issued to the complainant on the fifteenth day of October, 1878, for an "improve-
ment in paint-cans," and for an account of profits and damages. The answer denies that the complainant is the first inventor of the alleged improvement, denies infringement, and justifies under patent No. 225,499, issued to the defendant Francis A. Walsh on the sixteenth day of March, 1880. The specifications describe the complainant's invention as follows:
"It is customary to put mixed paints into tin cans for shipment, and purchasers for use are in the habit of cutting away the cover, OI a portion thereof, and using the paint direct from the can. As such cans are now made, when the cover or a part of it has been cut away, a rough edge remains with which the brush will come in contact when drawn over the edge of the opening, which it is desirable to do to Iemove and save the surplus paint which is likely to adhere to the brush in use. The object of my invention is to obviate this difficulty, which I accomplish by providing an annular disk which forms a portion of the cover, with a bead at the inner edge, so formed that upon the inside there wiII be a recess to reeeive the edge of the disk, which may fQ.rm the remailJ(lerofthecover.Said bead projects upward, and forms a smooth sUIface over which the brush can be drawn after the neCESsary portion of the covel' has been removed to give access to the paint. I also provide a secondary cover, fitting over said bead and held by friction, which can be used after a portion of the main cover has been removed. "In the draWings, A represents the body of a paint-can made of tin. B is an annular disk or ring stamped into the form shown, a being a bead at the inner part of the disk, B, projecting upward, b being a recess on the under side, formed by the walls of the bead, a, and c being another recess on the under side of the disk, B, adapted to fit over the upper edge of the body of the can, which upper edge is turned over, forming a flange, d. D is a piece of sheet metal, the edge of which is turned at right angles, forming a flange, which enters the recess, b, in B, and is there secured either by solder or suitable cement. The outer wall, e, of the bead, a, is perpendicular most of the way. E is a secondary cover, which fits over the bead, a, and is held thereon by friction. * * * When the paint is to be used, that portion of D which is within the bead, a. can be cut out by means of a knife or other suitable instrument, and the bead, a, will furnish a smooth surface over which to draw the brush to remove and save the surplus paint which adheres thereto in" usej and if, in cutting out said portion of D, by accident any parts are left so projecting as to interfere with the brush, they can be easily bent down and under the edge of the opening. The secondary cover, E, is a desirable feature. It frequently happens that only a part of the contents of the can is required for immediate use, and this cover, E, fits nearly air-tight, and is a very good protection. As shown, the central portion, D, of the cover is secured in the recess, b, in Bj but it is not essential that it be so securerl. The object of this part, D, is to effectually close the central opening in the ring, B, during transportation, and D, or anything performing its office, may be secured in place in some other manner. It might lap over the reeess, b, and be soldered to the under side oftha part, B. Any sheet so secured as to close tlle central opening in B during transportation will answer the purpose, and perform the functions of the part, D, provided such sheet can be conveniently cut away to give access to the contents of the can."
The claim is as follows:
"In a can, a cover consisting of the annular ring or disk, B, having an upwardly projecting bead, a, and a central portion, D, adapted to be cut away, in combination with the secondary cover, E, fitting over the bead, a, substantially as and for the purposes set forth. "
The defendant's can has an annular disk similar to the complainant's, but instead of forming a bead at the inner edge, the defendants simply turn up the edge of the tin or metal in a vertical direction, thus forming a flange to receive the supplemental cover or slip. '£heyalso use a diaphragm composed of taggers iron, or other thin metal, adapted to be cut away, which they extend across the entire top of the can under the annular disk, and secure both the diaphragm and disk to the walls of the can by seaming, instead of securing thtl diaphragm in an upward sunk 'groove in the annular disk, or by soldering it to the under side of the disk, as does the complainant. The defendants' can has no bead with a smooth, rounded surface at its inner opening upon which to wipe the brush when the can is used as a paint-pot. The complainant's patent is for a combination of old elements. Whatever merit it has is in the specific arrangement of its parts. His invention, if it can be called such, consists in the precise device which he has described and claimed; and his patent is not infringed, unless the elements entering into the defendants' device are arranged in substantially the same way. Does the defendants' can contain the same elements, or their equivalents, and is it constructed or rangetl in the specific form described in the complainant's patent? The complainant's invention consists in so constructing a paint-can that it may be used as a paint-pot after the cover has been removed to give access to the paint. The bead is formed at the inner edge of the annular disk, projecting upward, to furnish a smooth surface upon which to wipe the brush, and relieve it of the surplus paint. It is obvious that a brush wiped against a round or smooth surface will wear much longer than when drawn over a rough or sharp edge. 'l'he complainant, by using the bead, obviates the difficulty of bringing the brush into contact with the rough or sharp edge of the tin or other metal. The defendant disregards the function of the upwardly projecting bead, and in its place employs substantially that which the complainant discards or rejects. ,The complainant has limited himself in his claim to a can with an annular ring or disk, having an upwardly projecting bead, and he must stand by his claim as he made it. The elements constitnting the defendant's can are not constructed in the same form as complainant's. The one employs an annular disk with a sharp, upturned edge; the othe:t;, an annular disk with an upwardly projecting bead, presenting a round, smooth surface to the brush. One combination is not the same as another if it sub· stantially differs from it in any of its parts. The defendant's annular disk, with its sharp, upturned inner edge, is not the equivalent of the complainant's annular disk, with its smooth, rounded bead, projecting upwards. The complainant distinctly describes the bead, and claims it as a material part of his device. Mathew8 v. Machine 00. 105 U. 8.54; Briage v. Excel8ior 00.21 O. G. 1955; 8.0.12 FED. REP. 928, note.
Lette.rspatent issued to H. M. Clark, on the first day of October, 1872, for an "improvement in dredge-boxes." Clark's device or can is provided with a cover, constructed with an annular ring or breast, at the inner edge of which is a vertical flange, or ledge, adapted to receive and hold, a secondary slip-cover. Underneath, and fitting to the annular top-cover, a thin metal diaphragm is secured, by adapting its edges so that they fit closely inside the turned down outward edge of the top-cover, and so that the ring of the cover, when inserted with its down-turned edge at the top, secures and confines the diaphragm against and within the top-cover. The diaphragm is perforated. It is not hl!lrmetically sealed in the cover, and there is no rounded upturned bead at the inner edge of the annular ring or breast. Any experienced mechanic, with Clark's dredge.box or can before him, could readily construct the complainant's paint.pot. In mechanical construction there is no substantial difference in the two devices. Clark's can was oonstructed to hold pepper, spice, and other dry substances, and, of course, a tight joint was not called for. A can constructed in the same way, with a diaphragm soldered to the annular ring, and thus adapted to hold liquid, shows no invention. The bill is dismissed for want of equity.
THE HAMILTON J. MILLS. THE WALTER A. SHERMAN. FORTIER V. FIVE HUNDRED AND FORTy-THREE THOUSAND THREE HUN-, DRED AND TWENTy-FIVE FEET OF PINE LUMBER, late Cargo of the Barge Hamilton J. Mills. SAKE and another 'V. FIVE HUNDRED AND SIXTY THOUSAND AND SIXTYTwo FEET OF PINE LUMBER, late Cargo of the Barge Walter A. Sherman.
D. New York. January, 18811.)
DBMURRAGB - CONTRACT - " GOOD DISPATCH"-WAIVER OIl' DEMURRAGB - EVI. J)ENCE-DIIlMISSAL OIl' LlBEL. .
Upon examination of the evidence and the circumstances in this case, held, (1) that an agreement binding upon respondent to give good dispatch is not proven; and (2) that it is shown that the libelants waived their claim for de· murrsj[e, and the libel should be dismissed.
These are demurrage cases. On the twenty.fifth day of October, 1883, the libelants, as owners of the barges Mills and Sherman made a contract through Warner & Becker, ship·brokers, of Cleveland, Ohio, the special agents of Mary