for the same invention as this patent. This was for a collar or cuff made of two layers of muslin, with the wearing edges folded to prevent unraveling and improve the appearance, and all cemented together by a mixture of starch, spermaceti, and indigo; this is for a collar or cuff made of a single thickness of celluloid, or other pyroxyline material, with the edges turned over on to itself, and cemented down, to form a hem. Neither are the paper collars, with their edges turned over, the same as the collars of the patent. Their edges are not cemented down to form a hem, and the material is not adapted to that treatment. There is no question but that the patent is infringed, if valid. The motion for a preliminary injunction is granted.
(Oircuit Court, 8. D. New York. July 1,1881>.)
PATENTS FOR INVENTIONS-OAPs-REJSSUES Nos. INJUNCTION.
Preliminary injunction rcfused because of doubt as to the validity of the reissued patent.
In Equity. C. Wyllys Betts and Frederic H. Betts, for plaintiff. Gilbert M. Plympton, for defendent. WHEELER, J. Marks v. Fox, 18 Blatchf. 502, S. C. 6 FED. REP. 727, upon this same patent, reissue No. 7,807, division A, and No. 7,808, division B, granted to Marcus Marks, July 24, 1877, on surrender of original No. 166,395, dated August 3,1875, for an improvement in caps, would be ample authority for granting this motion for a preliminary injunction, if that decision was to be followed now. It would, of course, be implicitly followed but for the decisions of the supreme court upon reissued patents made since. That such a case been decided differently in the light of those decisions, is might recognized in Coon v. Wilson, 113 U. f::). 268; S. C. 5. Sup. Ct. Rep. 537. This motion must be passed upon in view of these later cases. The original patent was for a head covering, as a whole, consisting of a crown, a forward band, and rearward neck-protector, moving up and down, at pleasure. The original application was for a patent for the combination of the neck-protector with the body of the cap, without including the forward band. The application was rejected on references to anticipating devices, with a suggestion that the forward band be included. Thereupon the claim was amended, according to the suggestion, by the solicitor of the applicant, and the patent was issued. The alleged infringement does not have the forward
RICHARDS 'V. HAYS.
band, which the patentee, under the direction of the patent·office, made material in the original patent, and would not infringe that. Fay v. Cordesma,n, 109 U. S. 408; S. C. 3 Sup. Ct. Rep. 236. If it infringes the reissue, the infringement must be of the combination without the forward band, which was applied for and rejected, and the rejection acquiesced in. What was so given up by the applicant was effectually disclaimed and surrendered to the public, (Mahn v. Harwood, 112 U. S. 354; S. C. 5 Sup. Ct. Rep. 174;) unless there is some· thing to distinguish this case in this respect from that. The patentee appears to have been ignorant of the rejection and change of claim until shortly before the reissue. Had he known of the rejection he might, and probably would, have pursued a different course from what the solicitor took for him. It is argued that therein was a sufficient mistake to allow of a restoration of the original claim by a reissue asa correction. But there was no mistake in the presentation of the original claim. No part was left out or varied, by any misunderstanding between the inventor and the draughtsman of his applicacation. He succeeded in applying for exactly what he wanted. The patent-office acted upon his application understandingly and in due course. The mistake, if any, lay between him and the solicitor in not prosecuting the application in the direction of an appeal. This does not appear to be such a mistake as would allow him to resume what the records of the patent-office would show he had for so long a time left surrendered. These considerations make the validity of the reissue in respect to this infringement too doubtful to warmnt a preliminary injunction. Motion denied, and provisional stay of proceedings vacated.
(Oircuit Oourt, E. D. Penn8ylvania.
April 28, 1885.)
PATENTS trOR INVENTIONS-SQUIBS FOR BLASTING-NOVELTY-PRIOR USE.
The prior use of fU,ses embodying the essential features of the patents Nos. 8,361 and 134,128 belOg shown, held, that such patents are void for want of novelty.
In Equity. Chas. Howson and E. G. Buller, for plaintiff. Guy E. Farguhar, F. T. Chambers, and George Harding, contra. PE:& CURIAM. This bill is founded upon two patents issued to Sam- . uel H. Daddow, and to Esther H. Daddow, executrix of Samuel H. Daddow, Nos. 8,361 and 134,128, respectively. They are both for improvements in squibs for blasting, and it is alleged that the first claim 8,361 and the second claim of 134,128 have been infringed