HALLInAy 11. COVEL.
plaintiff were parties to that bOI).d or liable on it, and the averment presents simply an immaterial matter for traverse and testimony. The motion will be sustained.
HALLIDAY and others v. COVEL.s
(Circuit Oourt, N. D. Illinois. March 22,1886.)
PATENTS FOR INVENTION!l-INFRINGEMENT-SAW-SHARPENING MACHINES.
Claims 12,13, and 14, of reissued letters patent No. 10,252, granted December 5,1882. and the fourth claim of patent No. 254,869, granted March 14,1882, for improvements in saw-sharpening machines, construed, and held infringed. The only defense in this case was non-infringement; and while it was true that defendant's mechanism was not an exact copy or reproduction of the patented machines, and there was a noticeable display of ingenuity and skill in an attempt to evade the patent, held, that defendant's mechanism worked out the same result as complainants'. and by substantially the same means, using equivalent parts to perform the functions performed by the complainants' construction. '
In Equity. G. L. Chapin, for complainants. Pliny B: Smith, for defendant. BLODGETT, J. Complainant, by this bill, seeks an injunction and accounting for the alleged infringement of reissued patent No. 10,252, granted December 5, 1882, to complainant, as assignee of W. L. Covel, for "an improvement in saw-sharpening machines," and patent No. 254,869, granted March 14, 1882, to William H. Halliday, for "an improvement in saw-sha.rpening machines." As to the reissued patent, the original was granted May 11, 1876, but the infringement is only alleged as to claims 12, 13, and 14 of the reissue, which are substantially the claims found in the original patent. As to the Halliday patent, No. 254,869, infringement only of the fourth claim is charged. 'fhe bill in terms also charges the infringement of patent No. 222,386, granted December 9, 1879, to W. L. Covel, and assigned to complainant; but this charge in the bill was not pressed, and no claim was made under it at the hearing. Both patents in controversy pertain to machines for sharpening saws, in which the saw and the grinding wheel are brought in contact automatically. It is shown by the proof that saw-sharpening machines were used before any of these devices were invented; but it is contended by complainant that a difficulty was encountered in all the older machines from the fact that as the teeth in the same saw are not of equal length, therefore no reliable automatic adjusting feed had been obtained be1 Edited
by Charles C. Linthicum, Esq., of the Chicago bar.
fore the Covel patent, and that the chief merit of this device Is in overcoming this difficulty, and in making a mechanism which shall automatically sharpen the teeth of the saw, without further attention, by bringing the teeth in contact with the grinding wheel. The chief feature of the Covel device is the latch-feed, by which the pawl or dogfeed acts upon the tooth of the saw next after the one to be ground, to bring the tooth to be ground in contact with the grinding wheel, and the claims of the patent in controversy here all refer to this feature of the mechanism, and the parts by which it is operated. These claims are:
"(12) 'fhe combination of the latch-feed, i, and screw-threaded pivoted bolt, and a suitable guide, as shown, and for the purpose described. (13) The combination of a sliding-block and screw-rod, d, lever, e, piston, f, and crankshaft, g, as and for the purpose set forth. (14) The combination of a latchfeed with a pivoted lever, j, pitman k, rock-shaft, 0, crank ?n, m, tappet, p. and crank, l, as and for the purpose described."
The special features of the Halliday patent, No. 254,869, are an oscillating device which operates, with a tilting frame, to bevel the edges of the saw-teeth during the sharpening process, and a continuous cam, which co-operates with the tilting frame, and the oscillating support to the grinding wheel, to secure the movement by which the is done. '1'he claim of this patent in controversy is the fourth, which is as follows: "(4) The tilting frame, 2,3,4, and m, in combination with the continuous cam, l, a supporting frame, 16, and m, a wheel, f, with the feed devices, 8, T, t, and x, as and for the purpose specified. " The only .defense relied upon is non-infringement. After careful consideration of the proofs, I am satisfied that the defendant's rna· chine embodies in its con8truction and mode of operation the principle of the reissued Covel patent as to its feeding device, and the Halliday patent as to its mechanism for tilting the grinding wheel. It is true the defendant's mechanism is not an exact copy or reproduction of the machines described in the patent. There is, in fact, as there often is in infringing machines, a noticeable display of ingenuity or skill in attempting to evade the complainants' patent, but the defendant's mechanism works out the same result as the complainants', and by substantially the same means, using equivalent parts to perform the functions performed by the elements of the complainants' construction. There may be a decree prepared finding the defendant infringes the two patents as charged, and for an accounting.
BUTLER a.nd others v. STECKEL a.nd others.'
(Circuit CQurt, N. D. Illinois. 1.
March 22, 1886.)
PATENTS FOR INVENTIONS-BRETZEL-CUTTERS.
Letters patent No. 274,264, granted March 20,1883, to Butler, Earhart '" Crawford, for a bretzel-cutter, is void for want of patentable novelty.
The prior art disclosing the use of flat dies for cutting dough into varioul forms, such as the letter "B" and character "&," and provided with scrap passages and expelling studs, held, that there was no patentable novelty in the dies of the patent, which were simply modified to cut dough into the shape of a hand-made bretzel, and combined with the old expelling studs. Although the production of the patented device may have required study, effort, and experiment, held, that only mechanical skill was required to produce it, and hence that there was no invention. The mere fact that others in trying to accomplish a given object had long by the wrong path, is not evidence that invention was required to accomplish what patentee did by taking the direct path.
SAME-INVENTION, WHAT IS NOT EVIDENCE OF.
SAME-MI!RIT OF PATENTEES.
The merit of these patentees seems to have been in overcoming a prejudice against machine-made goods, and not in the invention of any radically new process for making the goods by machinery. .
Frank Baker, Edson Bros., and Hill et Dixon, for complainants. Banning et Banning, for defendants.
BLODGETT, J. This is a bill for an injunction and accounting by reason of the alleged infringement of letters patent No. 274,264, granted March 20, to the complainants, for a "Bretzel-eutter." In their specifications the patentees say: "This invention relates toan improvement in moulds or dies for stamping or cutting out bretzels, having for its object more especially to cause the product or bretzel to have the appearance of a hand-made bretzel; and it consists in the peculiar construction of the mould or die to effect this result, and other details of construction, substantially as hereinafter more fully set forth. * * * In carrying out our invention, we construct the die after the fashion or configuration of the ordinary bretzel, in its general shape." The bretzel has heretofore been chiefly made by rolling out a strip of dough, and bending it into nearly a semi-elliptical or heart shape, and crossing the ends, and laying them upon the outer rim of the circle. This form leaves, of course, three interior openings, and in cutting the bretzel from the sheet of dough as it passes under the cutter provision must be made for the interior scrap which is cut from the dough, and this is done by having an opening extending through the plate and cutting dies so that the interior scrap is carried off through the tubes connected with these openings. The patent contains three claims, as follows:
Edited by Charles C. Linthicum, Esq., of the Chicago bar.
(1) A flat die for cutting bretzels, having the bow, a, the loop ai, I!tI, the intermediate twisted portion and the end, a 3 , a 4 , and provided with the central creaser, a6 , the side creasers, a 5, a5 , and the end creasers, a7 , a7 , projecting into the bow, substantially as shown and described. (2) In a bretzel cutter the combination of the die, A, perforated as described for the reception and passage of the scraps, and for the expelling studs, F, with said studs, the.guide-rod, C, the base, B, provided with feet or projections, hI, the spring, h, perforated plate, D, and the hand-piece, E, substantially as shown and described. (3) A fiat bretzel-shaped die, having three off-bearing internal scrap passages or channels, and perforations for the expelling studs, in combination with the expelling studs, substantially as shown and described.
The defenses are (1) that the device has no patentable novelty; (2) prior use. The proof shows that it is old in the art connected with the preparation of food, to cut crackers, cookies, and cakes of various sorts into many. shapes, including the shapes of animals, and shows the use, for at least 10 years before the application for the patetlt in question, of dies in bakeries for cutting cakes in the shape of the capital letter "B" and the character "&," with two or more scrap passages; and with dies of this character in public use, I cannot myself see any patentable novelty in the dies of the patent. They are simply made to cut a piece of dough in the shape of a hand-made bretzel, while the dies oHered by the defendant as anticipating the complainants' dies cut pieces of dough into forms corresponding with the letter "B" and character "&" from which the internal scrap must be removed. These old dies also show expelling studs, by which the cut figure is expelled or pushed out of the die after being cut, performing the same function that is performed by the expelling studs in the patent. It is true, I doubt not, that it required considerable mechanical skill to make a die which would cut a bretzel from dough so as to imitate a handmade bretzel, because the hand-made bretzel is somewhat clumsily shaped, as the parts are bent, twisted, and laid upon each other, and it was undoubtedly a matter requiring some study, effort, and experiment to make the shape of the die correspond with the external formation of the bretzel. This, however, seems to me not to involve invention, but mere mechanical skill. The cutter might be compelled to experiment some,-that is, cut several dies,-but that is not in· vention. The proof also shows that a large number of persons, before these patentees, had attempted· to make a machine which would cut bret· zels, and considerable money and time seems to have been expended in efforts to produce such a machine; but the noticeable thing in regard to all these early efforts was the fact that most of those engaged in them were trying to draw out and twist the dough by machinery, rather than to cut or stamp dough from a flat sheet, while others were endeavoring to cut them with dies set in revolving cylinders; and as soon as the idea of cutting the dough from a flat sheet was conceived the difficulty seems to have vanished, and success followed
KIRBY fl. THAMES &: MERSEY INS. CO.
the effort, as the only change made was to adapt the old letter dies to the shape of a bretzel. Why men should have groped so long in the effort to make a bretzel-cutter 01' bretzel.ma.chine, with the ordi. nary cake cutters before them, it is difficult to understand, but the proof shows that they did so; but I cannot see that the mere fact that others were so long wandering by the wrong path is any evi· dence that it requires invention to accomplish what has been done by taking the direct path pursued by these patentees. All they had to do was to make the die, and adopt the old form of cutting dies used in bakeries for many years; and the result seems to have been accomplished. It seems to me, from the proof, that inasmuch as the bretzel is an article of time-honored history in the German coun· tries, connected to some extent with the older religious observances of those people, and intimately with their pL'esent social enjoyments, that in the first efforts at making them by machinery it was assumed that they must in every respect simulate those made by hand or they would not be acceptable to the public; that they must not only sim· ulate them in appearance, but the manipulation of the dough must be substantially the same as in those made by hand; but when the machine-made bretzels were introduced to the public, and accepted in place of the hand·made article, the problem was solved; and the merit of these patentees seems to me to have been in overcoming a fixed prejudice in favor of the hand-made goods rather than in inventing any radically new process for making the sall).e goods by rna· chinery. The finding will be that the patent is void for want of novelty, and the bill dismissed.
KIRBY v. THAMES & MERSEY INs. Co., Limited.
(Di8triet Oourt, E. D. Wi8consin. April, 1886.)
MARINE INSURA:ljCE-INSURER'S LIABILITY TO UNINSURED PART OWNER FOR NEGLIGENCE.
Where an insurer has insured the interest of a half owner of a vessel; and the vessel was stranded during a voyage; and such half owner requests the insurer to render her assistance; and the insurer sends an agent to the vessel with instructions "to render such assistance as is necessary;" and such half owner notifies the insurer that he abandons his interest in the vessel to the insurer; and such agent, with the aid of the master, crew, and such half owner, move the disabled vessel to a harbor; and afterwards, without further orders from the insurer, such agent. the master, and crew, with the aid of such part owner, attempt to navigate the vessel to her home port, which is also her port of destination; and during the voyage the vessel is lost: held. that the insurer is not liable to the owner of the uninsured half interest in the vessel for her loss, and is not, as to him, chargeable with negligence. Where a policy of insurance on the interest of a part owner of a vessel pro·
SAME-RIGHT OF PART OWNER TO ABANDON UNDER INSURANCE POLICY.
Reported by Russell H. Cllrtis, Esq., of the Chicago bar.