John R. Bennett and Geo. De Forest Lord, contra. NIXON, J. On November 14, 1881, an injunction was issued by this court against the defendants in the above-stated suit, commanding them, and each of them, to desist from making, using, selling, or in anywise counterfeiting or imitating the invention or improvement described in and secured by the letters patent No. 197,314, for "improvement in processes for preserving meats during transportation and storage," issued to John J. Bates, November 20, ]877, and by the patentee assigned to the complainant corporation. Application is now made to the court for an attachment against Vernon H. Brown, individually, and .Vernon H. Brown, Albert H. Brown, Vernon C. Brown, and George F. Wilde, members of the firm of Vernon H. Brown & Co., the general agents in the United States for the Cunard Steam-ship Company, and each of them, for cO;ltempt of court in violating the said injunction. It does not appear by the affidavits filed that either of said persons named, except Vernon H. Brown, has had a personal notice served upon him of the motion in this case. Instances have doubtless arisen, and will again arise, where a substituted service has been and will be accepted by the court in the place of a personal service; but the proper practice in all such cases is to apply to the court, assign satisfactory reasons, and thus obtain its order in advance for the substituted service. No step of the kind was taken in the present case. Evidence has been offered to show that the Cunard Steam-ship Company has violated the injunction by shipping on board two of its steamers, to-wit, the Cephalonia and Catalonia, plying between the port of 'Boston, in the United States, and the port of Liverpool, in England, meats placed in refrigerators embodying the process of the complainant's patent. But the proof is clear and undisputed that Vernon H. Brown, who was personally served with notice to appear and show cause, has no control over the cargoes of the said steamer, and was not responsible for the acts complained of. The motion for an attachment must be refused.
lENNINGS and others v. KIBBE and others. SAME v. DOLAN and others.
(Oircuie Oourt, S. D. New York. January 10,1885.)
PATENTB FOR INVENTIONB-DESIGN FOR FRINGED LACE FABRIC-INFRINGEMENT.
As the novelty of design patent No. 10,448, for a fringed lace fabric having a fringe of a series of stems connected to the fabric and not to each other, " with loops at hoth sides of a central stem or rib along its entire extent," appcrtains to the fringc alonc, it is not infringed by l\ubias having such fringes
in which the similarity arises from the body of the nubias and not from the fringe. 2. SAME-LACE PURLING-PATENT No. 218,032-ANTICIPATION. Letters patent No. 218,032, for an improvemenl in lace purling, on exam. inaUon of the evidence adduced, held valid.
In Equity. Antonio Knattth and A. v. Briesen, for plaintiff. John R. Bennett, for defendnnt. WHEELER, J. These suits are brought upon design letters patent No. 10,448, dated February 12,1878, and granted to Warren P. Jennings for a design for a fringed lace fabric, and letters patent No. 218,032, dated July 29, 1879, and granted to Abraham G. Jennings and Warren P. Jennings for an improvement in lace purling. The design patent has before 'been adjudged to be valid in this court between the same parties to one of these cases, but upon different infringing articles. Jennings v. Kibbe, 20 BIatchf. C. C. 353; S. C. 10 FED. REP. 669. The design is for a lace fabric having a fringe made of a series of stems connected to the fabric and not to each other, "with loops at both sides of a central stem or rib along its entire extent." The infringing articles are nubias having such fringes of stems; but the stems have two central ribs, with loops projecting alternately at the sides, and not on both sides along its entire extent. There are so many of these things that the differences are necessarily small, and small differences make different designs. The patent is not for a design for a nubia, but of a fringed lace fabric, and/the novelty of the patented design appertains to the fringe, and not to the rest of the fabric, by the terms of the patent. Nubias with this fringe might appear to be the same as those with the patented fringe, if the fringe should not be ob· served as such; but observation of that would discover the difference readily. The similarity would arise from the body of the nubias, rather than from the fringe, and as fringed fabrics the designs as to the fringes appear to be different. This patent is not, therefore, infringed by this article. The novelty of the invention described in the other patent is denied. The anticipation relied upon is a sample in a book of samples of the defendant Dolan, purporting to contain samples of books made and sold before that invention. No article of that manufacture is shown besides the sample,and that is shown to have been pnt in the book since the iuvention and since controversy about it. The evidence of the defendants tends to show that the same one was taken out and replaced. The appearance of the book indicates that a sample of different color and size had been in that place. The force of the evidence depends upon the identity of that sample. So much doubt is thrown about it upon the whole proof as to bring it below the degree of certainty requisite to defeat a patent. After repeated examinations, serious doubts remain about the production of thatarticle as claimed. The proof should overcome these doubts in order to
ALBANY STEAM: TRAP
invalidate the patent, and as it does not, the patent stands as valid. The infringement seems to be clear, unless the patent is limited to the particular mode of reticulation described. The pillars of the fabric appear to be precisely like those of the patent. The reticulation appears to be in all respects the equivalent of that of the patent. The pillars are really the principal things, and the substance of the invention appears to be taken. Let there be a decree for the orators accordingly for an injunction and account in each case, without costs, except on the accounting.
ALBANY STEAM: TRAP Co.
FELTHOUSEN and another.
(Circuit Court, N. D. New York. August 22,1885.)
PATENTS FOR INVENTIONS-STEAM-HEATING APPARATUS.
On rehearing, former opinion (20 lfED. REP. 633) adhered to.
In Equity. Dickerson & Dickerson, for plaintiff. E. H. Bottum, for defendants. BLATCHFORD, Justice. Although a rehearing was granted by the court, held by the circuit judge and the district judge, sitting together, as to the second Blessing patent, the reasons which prevailed with them to grant it are not presented, while the grounds on which they held, at the original hearing, that, on a proper construction, the second Blessing patent was not infringed, are set forth in the decision in 22 Blatchf. C. C. 169, 175; S. C. 20 FED. REP. 633. It was held that there was no infringement of the Menill patent, or of the first or the second Blessing patent. No rehearing has been granted as to the Merrill patent, or as to the first Blessing patent. In the first decision it was said, referring to the Merrill patent and the three Blessing patents:
"The object of the invention in each of these patents was, as in the Merrill patent, to return the waters of condensation automatically to the boiler, to accomplish.the same result upon similar principles, but by different and improved mechanism. In view of the prior state of the art, and of the construction given to the Merrill or foundation patent, it may be said, at the outset, that the claims now to be examined should be confined within exceedingly narrow limits. Each inventor must be restricted to the specific improvement and the particular device described and claimed by him."
It was .held that there was a material difference between the defendants' apparatus and its mode of operation, and the plaintiff's apparatus and its mode of operation, as shown in the second Blessing patent. In view of the recent decisions of the supreme court as to reissues, the claims of the second Blessing patent cannot he construed more