CONSOLIDATED FRUIT JAR CO. V. BELLAIRE STAMPING CO.
that company, and the transfer of the Hartwell contract is not approved or assented to by the Racine Company, it follows that the complainant in the cross-bill took no title from either of these sources. A decree will be entered dismissing the cross-bill for want of equity; and dismissing so much of the original bill as relates to the Floyd patent without prejudice; and finding underthe original bill that the Strowbridge patent is valid, and the title thereto is in the complainant; and that the defendant, the Joliet Wire-check Rower Company, has infringed the same; and that complainant is entitled to an· account· ing for profits and damages.
CONSOLIDATED FRUIT JAR Co.
BELLAIRE STAMPING Co.
(Oircuit Oourt, 8. D. Ohio, E. D. April 13, 1886.)
PATENTS FOR INvENTIONS-ABANDONMENT.
The patent granted to William Taylor and Charles Hodgetts, No. 117,236, dated July 18, 1871, for improvement in caps for preserve jars, is invalid and void.
Taylor & Hodgetts filed their application March 26, 1856. It was rejected, on references, April 16, 1856, and withdrawn April 22, 1856. On March 30, 1869, a patent was granted to Boyd for substantially the same invention. On January 7, 1871, Cozzens, the attorney of Boyd, filed a request in the name of Taylor & Hodgetts, but without their authority, to renew the application under the. provisions of section 35 of the patent act of July 8, 1870. In June, 1871, Boyd purchased Taylor & Hodgetts' rights in the invention and application, and obtained from them a ratification of Cozzens' attempted renewal, after which he paid the renewal fee, filed an amended specifi( ation, and had the patent issued. Taylor & Hodgetts made no effort to renew or prosecute the application between their withdrawal on April 22, 1856, and the filing of the renewed application in 1871. There was evidence that they had given up the invention, and ceased to use it, or take any further interest in it, as early as about 1862; and that they were men of means, engaged in the business of manufacturing fruit cans. Held, (1) that they had abandoned the invention; (2) that the renewal was without authority, and that its subsequent ratification could not validate it; (3) that their abandonment was not in favor of Boyd, the intervening patentee, but in favor of the public; (4) that Boyd could not, by acquiring an assignment from them, reclaim the invention from the public. Where an application for a patent has been fil"d and withdrawn, lapse of time, whether it be alone conclusive of abandonment or not, is nevertheless a fact which may give great point and force to testimony disclosing what was done in the interval.
SAME-LAPSE OF TIME.
SAME-INTEREST OF PUBLIC-EsTOPPEL.
In cases of abandonment or reissue, under the patent laws, the matter is not to be likened to chattels personal, the ownership of which may be abandoned and afterwards resumed; for there is always, in patent cases, a public equity which must ,lot be disregarded. In such cases the equitable estoppel which arises, where other rights in the mean time intervene, is not in favor of the intervenor alone, but he is regarded by the courts as the representative flf the public, and therefore whatever rights he gains the public gains
C. C:urlit:::, 'for complainant.
Causten Brown, William C. Witter, William H. Kenyon, and A.
George W. Dyer and LY8ander Hill, for defendant.
SAGE, J. This suit is to restrain the infringement of two patents, the property of the complainant: (1) Ta,ylor & Hodgetts' patent for an improvement in caps for preserve jars, No. 117,236, dated July 18, 1871. (2) Reissued patent No. 9,909, for means for preventing corrosion of metallic caps, issued October 25, 1881, to the complainant, assignee of Lewis R. Boyd, deceased, to whom the original patent (No. 88,439) was issued March 30, 1869, for improved mode of metallic caps. proventing corrosion Taylor & Hodgetts' original application for their patent was made March 26, 1856. It was rejected, on reference, April 16, 1856. April 22, 185t;, Taylor & Hodgetts withdrew it, and requested are· turn of $20, as then provided by statute in such cases, and about May 1,185(1, the money was returned to them. The statute of July 8, 1870, (section 35,) provides for the renewal of rejected or withdrawn applications by a renewed or new application, ifmade within six months, which period expired January 7, 1871. On that day S. D. Cozzens, signing as attorney for Taylor & Hodgetts, but, as I find from the testimony, without authority, filed a petition that they might be allowed to renew their said application in accordance with the act of July 8, 1870, upon paying into the treasury the sum of $15, as in the case of a new or original application. On the fourteenth of January, 1871, Cozzens was notified by the commissioner of patents that as he had no recorded power of attorney, as required by the regulations of the patent-office, authorized by the act of July 8, 1870, the paper above referred to, filed January 7, 1871, and signed by him, could not be accepted as a valid renewal of Taylor & Hodgetts' application. On the thirtieth day of June, 1871, Cozzens procured from Taylor & Hodgetts a full power of attorney in writing to renew said application. The first paragraph of 'this power is a recognition of what he had previously done. 'fhe language is significant in its bearing upon the question whether any authority whatever had been previously given him. It is as follows:
"Whereas, on the sewnth day of January, 1871, a certain paper for the purpose of renewing, under the patent act approved July 8, 1870, our application for letters patent for an improvement in preserve cans, filed March 26, 1850, ancI withdrawn May 1, 1850, was duly tiled in the patent-office by S. D. Cozzens, Esq., of the city of New York, as our attorney, and was by him sub· Bcrlued as our attorney, as he rightfully might do."
In the body of the power there is an express ratification of Cozzens' action in signing and filing the petition for leave to renew the application. . It is convenient now to consider what Taylor & Hodgetts did with reference to their claim for the invention described in their original application, after its rejection and their withdrawal of it. They were tinsmiths. '1'he copartnership was in existence from about, 1855 un-
CONSOLIDATED l<'RUIT JAR CO.
BELLAIRE STAMPING CO.
til the death of Taylor, in April, 1874. They were for several years, dating from about 1855, largely engaged in the manufacture of fruit cans at Williamsburg, New York. Hodgetts' testimony, taken in 1875, in a cause then pending in the Northern district of Illinois, is, by stipulation, a part of the record of this cause. From his deposi. tion it appears that they were in very good pecuniary circumstances between the years 1860 and 1870. They continued in business as partners as above, at Williamsburg, until Taylor's death. In 1855 they mallufactmed and sold, in" large numbers, a fruit-jar cap iden· tical in material and form with that described in their application of lR56, excepting that it was unlined. They also manufactured and sold a fruit-jar cap differing from that "described in their application only in that there was no soft metal cover to what is described as the "lil).ing" in their application. Whether they manufactured and sold caps such as are described in their original application is not clear. There are some expressions which indicate that they did, but Hodgett's testimony on this point is unsatisfactory. He was evidently an ignorant man. His testimony was given nearly 15 years after they discontinued the manufacture, and his memory as to dates and as to details was defective. John H. Goodale, who was in the employment of Taylor & Hodgetts at the time, and in charge of that department of their business, testifies that they sold caps of all the varieties above referred to, including that described in their first application, for about three years, dating from 1856 or 18n7; but he refers particularly to the two kinds not described in the application, and his only testimony including the cap described is an affirmative answer to a question whether Taylor & Hodgetts sold caps of all these three varieties. His deposition, which is in the record by stipulation, was taken in 1878 in the cause in the Northern district of Illinois. Two witnesses, Renshaw and Jones, who were in the employ of Taylor & Hodgetts, made affidavit that caps like those described in the original application were made and sold at the dates above referred to by Taylor & Hodgetts, but subsequently each made an affidavit that he was in error, and that no such caps were made or sold. All these affidavits are in the record by stipulation. Taken alto· gether, the testimony on this point is so contradictory, vague, and unsatisfactory tha t it is not sufficient to warrant the conclusion that the caps described in the original application were ever manufactured and sold by Taylor & Hodgetts. Mr. Hodgetts was examined fully in reference to the abandonment of the invention described in the Taylor & Hodgetts' application of 1856. As above stated, he testified that his firm commenced the manufacture of caps a little before 1857, and continued about three years. He was asked what they did about the invention after those years. His answer is that they abandoned it; and he goes on to say that after that time they made no efforts to get a patent for it, bethey thought it was not worth it; that between 1860 and 1870
the pecuniary circnmstances of his partner and himself were very good, but that in all that time they had no idea of getting a patent, and the subject was not even talked about. He further testifies that they discontinued the manufacture and sale of caps and jars in 1862, because the improvements that were introduced "shut off that line of business;" and "that the thing became so worthless to us that we never thought about it." On cross-examination, when asked what he meant by his testimony in his direct examination that he abandoned the invention, his answer was that he gave it up,-that they stopped making them. Finally, he says, that about three years before the date of his testimony his partner informed him that he had an offer of $100 for their claim to the invention. This offer was from some person who was "after the claim," but who he was the witness did not know. Both he and his partner were willing to accept the offer, and the sale was made. The witness received $50, and supposed that his partner received a like sum. The purchaser was Cozzens, who, on the same day, received the power of attorney hereinbefore referred to. To the respondent's contention that by this testimony an abandonment of the invention is established, complainant urges-First, that Hodgetts' testimony is not reliable because of his ignorance and forgetfulness; that he is confused about dates and details; that he testifies that he does not remember anything about the original application.for the patent; and that, taken altogether, his testimony is so vague and uncertain that it should be discarded. That is not my view. On the contrary, these very characteristics add strength to his testimony that they gave up the idea of pressing an application for a patent, and abandoned the invention as worthless. No man is likely to forget facts in which he has a constant and lively interest. Very few men remember, for any great length of time, facts to which they are indifferent; and Hodgetts' inability, after the lapse of nearly 15 years from the date of their last manufacture, and 20 years after the rejected application, to recall details or dates with accuracy is not at all surprising, if it be true, as he testifies, that he and his partner abandoned the invention, and threw it aside as worthless. No one can read Hodgetts' testimony without being impressed that it was honestly and truthfully given. He had no interest in the result of the litigation. He and his partner had sold whatever claim they had for a mere trifle, and that fact strongly re.enforces his testimony that they had abandoned the invention, as does the further fact that it does not clearly appear that after the rejection of their application they ever manufactured or sold a single cap such as that which they had sought to have patented. What more significant and conclusive proof of the truth of his testimony that the thing became so worthless to them that they never even thought of it? Next, it is inSIsted that even if it be true that they dismissed the idea of obtaining a patent, and, even for so long a period as 15 years, regarded as worthless what they described in their application, there