specific mechanism, or its equiv/l.lent, described in the patents. n is apparent, on inspection, that the defendant's valve, made under the Mayer patents, dated December 31, 1872, and October 21, 1873, is widely different in construction from the valve of Black. In both devices we find what is common to most safety or relief valves, namely, a pressure chamber, safety-valve, spring at the valve-seat, and means for adjusting the spring; but in defendant's valve we find .no clamp for retaining the relief-valve in position until the safetyvalve causes the clamp to open, nor is the relief-valve provided with any spring, or its equivalent. Aside from certain elements common to most safety-valves, the specific mechanism of the defendant's device is snbstantially different from tha.t described in the Black patent. The broad claim of the Black patent must be limited to the particular meohanism described and shown in the specification and drawings. Nor does the defendant's valye infringe the Garland patent. It is organized in a substantially different way ir,om the Garland valve. It has two, pistons instead of one, each working in its own cylinder over the relief-valve and above the water-way; and there are material differences in construction, which we do not deem it necessary to detail. Whether the same" equilibrium of pressure" is accomplished by both devices is doubtful; but, however, this may be, the means employed are substantially unlike. A decree must be entered dismissing the bill.
ROEMER v. NEUMANN and others.
(Circuit Oourt, B.
n. Ne1JJ York.
January 14, 1888.)
PATENTll FOR lNVElNTIONS-lNTERLOCUTORY DECREE.
An interlocutory decree, entered pro COnfl!880, finding the patent valid, award· ing an injunction, and referring the case to a master to take an account of profits and damages, is not definitive. No appeal lies from it, and it is still in the control of the court.
BAME-litELEASE OF PROFITS AND DAMAGES.
A release of profits, damages, and costs having been signed at the time of the entry of the interlocutory decree, complainant was in a position to have such decree made final. The distinction between a final decree and a stipulation upon which such 8 decree may be entered, is obvious. The sanction of the court to the agreement of the parties is necessary to give such agreement the effect of a final decree.
SAME-DISTINCTION BETWEEN FINAL DECREE AND STIPULATION.
BAKE-INTERLOCUTORY DECREE AS AN ESTOPPEL.
In a prior suit between the same parties, an interlocutory decree, prD con!e880, awarding an injunction and a reference to a master, had been entered, and a release of profits and damages signed. In a subsequent suit between the
l:Reponed by Charles C. Linthicum, Esq., of the Chicago bar.
ROEMER V. NEUMANN.
same parties, exceptions setting up t.his decree as an.estoppel were overruled, in the absence of an express authorIty on the questIOn; and held, that where there is a doubt in such a case. it oU2'ht to be resolved al!'ainst the party ur2'ina: the estoppel.
This case came up for hearing on exceptions to defendants' answer. The complainant had brought suit in the circuit court for the district of New Jersey, in 1880, against the same defendants, for infringement of his patent, No. 195,233. A decree pro con. was entered in that suit, and a written agreement entered into between the parties whereby the complainant waived damageb, profits, and costs; but a perpetual injunction was issued and served. Afterwards, in 1881, the complainant moved, in the New Jersey suit, to attach defendants for contempt of court for their violation of the injunction·. Judge NIXON, in denying that motion, wrote in his opinion as follows:
"At the time that the decree pro con. was allowed against the defendants, the complainant signed a paper releasing them from all claim for damages and profits. Possibly both parties were acting under a misapprehension, and the best solution of the case, in my judgment, is for boUt to agree that the decree should be opened, the release of damages canceled, and the suit proceed to a final hearing. At all events, I am not willing. on the evidence taken, to make the rule to show cause why the defendants should not be attached for contempt. absolute."
Upon this opinion being rendered, the parties, failing to agree that the decree be opened, as suggested by Judge NIXON, suit was brought in the circuit court for the Southern district of New York, by the complainant against the same defendants, for infringement of the same patent, the bill limiting the discovery to infringements committed after the entry of the decree in New Jersey. In their answer the defendants deny the validity of the patent, and offer proof to sustain such a defense. To this part of the answer complainant filed exceptions, on the ground that the decree pTO confesso, and the agreement accompanying the same, had determined the validity of the patent as far as the parties to this suit are concerned. Briesen et Steele, for complainant. Frederic H. Betts, for defendants.. COXE, J. That the decree relied on by the complainant as an estoppel is interlocutory in form is manifest. It is, on its face, called an interlocutory decree. It leaves open the question of profits, damages and costs, and orders a reference to a master. It does not put an end to the cause. An appeal from it will not lie. It is still in the control of the circuit court. It has never been modified, and no other decree has been entered. But the complainant contends that, though it may not be definitive in form, it is so in fact, for the reason that the complainant, at the time of its entry, signed a paper releasing the defendants from all claims for profits, damages, and costs. There is nothing in the record to show that this release was filed or brought to the attention of the court at the time of the entry of the decree. It is, however, alleged in the complaint, and admitted in the an-
swer, that it was signed. The complainant was, therefore, quite likely, in a.position, upon exhibiting this release, to have the interlocutory decree made final, provided the opinion was not then entertained which the court expressed later, that "possibly both parties were acting under a misapprehension." The situation in this respect was as if the master, after hearing the parties, had made a report that there were no damages or profits. Upon presenting such a report, costs being waived, the court, although it might refuse to do sO,would, in all probability, order a final decree for the complainant. The difficulty is that this decree, though it might have been made final, was not so made. The distinction is obvious between a final decree and a stipulation upon which such a decree may be entered. The sanction of the COU1·t, even though a formal supplement to the agreement of the parties, was necessary. In the absence of an express authority, the court should hesitate before holding that such a decree is res judicata. If there is a doubt, it ought to be resolved against the party who urges the estoppel. A mistake in so deciding can be hereafter corrected; whereas, if the principal defenses are stricken from the answer erroneously, the defendants will be remediless. The ex.ceptions are overruled.
BRIDGEWATER IRON Co. and others.1
(Oircuit Oourt, D. Massachus6tt8. February a, 1886.)
PATENTS FOR INVENTIONS-GUTHRIE PATENT,
No. 125,044, OJ!' MARCH 26, 1872. This patent was for an improvement on the patent to Freeborn Adams, for casting copper tubes, sued on in Adams v. Bridgewater Iron Co., ante, 324; and sucb"improvement consisted in an upright mould in combination with a chamber or vessel into which the molten metal was poured, and arranged to be rotated. The first claim of the patent covering this combination held valid, and infringed by defendants in the use of a rotary chamber or basin in combination with a stationary mould.
The inventor and patentee having supervised and directed the building of a machine for the defendant company, and while in its employ, held, under such circumstances, the defendant company may be said to have a license to use that particular machine.
In Equity. Geo. L. Roberts and Oeo. Wm. Estabrook, for complainants. D.Hall Rice, for defendants. COLT, J:This action is brought for infringement of letters patent No. 125,044, issued to James F. Guthrie, March 26, 1872, and by him assigned to the plaintiffs, for improvement in casting copper tubes. The specification says:
by Charles C. Linthicum, Esq., of the Chicago bar.