LOCKWOOD V. FABEB.
v. FABER. l
((h,'reuit (Jourt, 8. D. New York. February 5,1886.)
hi this case, on motion for preliminary injunction, under the patent to Rhodes Lockwood, sustained in Looktoood v. OuttlJr TowlJr 00., 11 Fed. Rep. 724, Lookwood v. Oleveland, 18 Fed. Rep. 37, and Lookwood v. HooplJr, 25 Fed. Rep. 910, the point was raised, for the first time, that there was not a sufficient , description of the invention within the meaning of the statute, and the motion was denied. 2. SAME-DESCRIPTION OF AN INVENTION. A description of an invention does not comply with the statute when those skilled in the art to which the invention belongs can only ascertain byexperi· ment how to practice it. 8. DEFENSES ON APPLICATION FOR PRELIMINARY INJUNCTION. Where the defense of prior public use was much more strongly fortified by corroborative evidence than in prior cases, where this defense had been made and overruled, a motion for a preliminary injunction was denied.
PATENTS FOR INVENTIONS-LOCKWOOD PATENT.
In Equity. WALLACE, J. The case, as it appears upon this motion, is not sufficiently clear for the complainant to entitle him to a preliminary injunction. 1. Doubts are suggested as to the validity of the patent upon a point which apparently was not considered in the case of Lockwood v. Cutter Tower Co., 11 Fed. Rep. 724, at final hearing, or in the case of Lockwood v. Hooper, 25 Fed. Rep. 910, upon motion for an injunction. The patent is for a new article of manufacture, when produced by a specified process or method,-"a rubber eraser, having the soft finished erasive surfaces produced by tumbling the erasers." It was not new to produce the article by grinding the surfaces, or filing them; nor was it new to treat small articles of India rubber by tumbling them in a barrel or revolving box long enough to give them a smooth, soft exterior surface; and the only novelty of the invention consists in producing the article by the method of the patent. The only description of the process contained in the specification is that the pieces of rubber are "tumbled (in a barrel or revolving box) until, by their action, one on the other, the corners and edges are worn away or rounded, leaving each eraser with a soft, velvet·like finish over its entire surface." If those skilled in the art can only ascertain by experiment· how long, or under what conditions, the operation must be carried on to produce the new result, which is the essence of the invention, it is doubted whether such a description complies with the statute. Tyler v. Boston, 7 Wall. 327. On the other hand, if they can produce the article without such information, where is the novelty of the invention? 2. The defense of prior public use, as now presented, is a very
by Charles C. Linthicum, Esq., of the Chicago bar.
formidable one. It is alleged that many manufacturers made and sold the patented article more than two years prior to the application for the patent. Although the defense as to the prior use and sale by some of these manufacturers was considered and overruled in the case of Lockwood v. Cutter Tower Co., and by other manufacturers was urged ineffectually upon the motion for the injunction in the case of Lockwood v. Hooper, the defense, as now presented, is much more strongly fortified than before by corroborative evidence; and it is reasonable to assume that a different result would have been reached if the evidence had been introduced which is now produced. The motion is denied.
and others v.
(Oircuit OOU/T't, No D. lllinoiB. March 22, 1886.)
PATENTS FOR INVENTIONS-CONSTRUCTION-INFRINGEMENT.
Letters patent No. 154,848, of December 8, 1874, to William H. Curtis, for an improvement in carpet stretchers. must, in view of prior patents for carpet stretchers, acting upon the same principle, be limited to the special devices therein shown, and cannot be construed so as to include other machines which are mere adaptations or simplifications of other older devices.
A carpet stretcher manufactured under the patent to Frederick J. Hubbard, of May 20, 1884. is a new improvement on older devices, and does not embody the special devices of the Curtis patent. Amere change in the size of a machine, (a carpet stretcher,) whereby it is reduced from a large and clumsy device to a light, portable, and convenien. one, while its mode of operation is not changed, is not a patentable changet
SAME-CHANGE IN SIZE OF MACHINE.
Jesse Cox, for complainants. Coburn et Thacher, for defendants.
BLODGETT, J. The bill in this case charges an infringement by defendants of patent No. 154,848, granted December 8, 1874, to William H. Curtis, for "an improvement in carpet stretchers," for which they seek an injunction and accounting. No dispute is made as to the defendants' title. The defenses are (1) that complainants' patent is void for want of novelty; (2) that defendants do not infringe. The proof shows that carpet stretching devices are old. The defendants have put into the record the following patents for carpet stretchers: No. 10,143, granted December 18, 1853, to J. W. Weatherby; No. 22,93U, granted February 15, 1859, to J. W. Bragg:
IReported by Charles C. Linthicum, Esq., of the Chicago bar.
MONTROSS ". BULLARD.
No. 36,187, granted August 12, 1862, to E. Wood; No. 70,032, granted October 22, 1867, to W. H. Robinson; No. 67,690, granted August 19, 1867, to J. P. Warner; No. 85,690, granted Augltst 5, 1869, to S. Pennock; No. 83,741, granted November 3, 1878, to E. P. Shaffer; No. 114,418, granted August 5, 1873, to W. H. Boles; besides several others, which it is unnecessary to enumerate. All the devices shown in these patents operate upon substantially the same principle; that is, they have a head, provided with teeth or claws to engage with the carpet, and some device for pushing or pulling this head so as to stretch the carpet, and most of them show a pawl, or some other device, to hold what is gained by each pull or push. The earlier devices seem to have been large and clumsy. Some of them were evidently intended to reach across the room, so that one part could brace against the base-board of one side of the room, while the head pushed or pulled the edge of the carpet to the opposite baseboard, where it could be tacked or fastened. The machine made under complainants' patent, and also defendants' machines, are made very light and portable, and are an undoubted convenience to the person who has to use them, and an obvious advantage to the peddlers, who can much more readily hawk them from house to house; but a change in the size of the machine, making it larger or smaller, while its mode of operation is not changed, is not a patentable change; and, besides that, there is nothing in the complainants' patent as to the size of the machines to be made under it, and the complainants have a right to make a machine just as large or just as small as they choose under the specifications of this patent. Complainants' patent provides for the construction of a machine with a head, on the under side of which are teeth to seize or engage with the carpet, and a bar with a hook at one end, to be driven into the floor near the base-board, and a "ratchet upon the top of this bar. Upon the head are two bales, one of which is to act as a pawl, and engage with the ratchet as the head is drawn forward; and the other pawl, which is larger, is pivoted a lever, the lower end of which, working in the notches of the ratchet bar, enables the operator, by the use of the lever, to draw the head towards the hook end of the ratcheted bar, while the pawl holds what is gained by each throw of the lever. Defendants' machine is manufactured under a patent granted May 20,1884, to Frederick J. Hubbard. It contaius, as does the complainants', a toothed head to engage with the carpet; and a device, by means of an extension bar and lever working in a ratchet plate, to pull the carpet to place, and also a catch to hold what is gained by each throw of the lever. Its construction and mode of oppatent of November eration are much like Fig. 2 of the 18, 1868. It is also similar in construction and mode of operation to the Boles patent of August 5, Itl73, especially in the form of 110nstruction shown in Fig. 3 of that patent. Both the Stevenson and Boles devices show an extension bar with ratchet and levers, and v.27F.I\0.1--;-5
with pawls to hold all that is gained by each throw of the levers. The still older devices of Weatherby and Wood also show extension bars and ratchets worked with a cog-wheel or lever. With the number of devices for carpet stretchers shown in the proof, all acting upon substantially the same principle, I think there can be no doubt that the patent-office, in granting the patent to the complainants, intended to only grant it for the special devices shown; and although several of the older patents have a working mechanism very much like complainants', it is possible complainants' patent can be upheld so far as to protect the special device shown, but it cannot be so construed as to include other machines which are mere adaptations or simplifications of other older devices, and I have no doubt from the proof that defendants' machine is, in its construction and mode of operation, an improvement upon the Stevenson and Boles machines, and that its construction does not embody the special devices of complainants' patent. The finding is that the defendants do not infringe, and the bill is dismissed for want of equity.
THAYER !1. SPA.ULDING.1
(Circuit Court, N. D. lllinoia. March 22, 1886.,
PA.TENTS FOR INVENTIONS-BASE-BALL MASKS-FENCING MASKS-ANTICIPATION.
Letters patent No. 200,358, of February 12, 1878, to Frederick W, Thayer, for an improvement in masks, is not anticipated by the old fencing mask, as the fencing mask had no forehead or chin rest, such as are specified in the Thayer patent. Although the patented mask and the old fencing mask are in some respects analogous in their use, held, that there was enough difference to make the former patentable over the latter. As patentee appeared, from the evidence, to be the first in the art to show a mask to protect the face having a rest for the forehead. held, that he was entitled to cover such forehead-rest broadly, and was not limited to the special means by which he affixed it to the wires of the cage. A party asserting a prior use of a device covered by a patent has the hurden of proof, and is bound to establish such prior use by strong and convincing if not absolutely conclusive proof.
SAME-PRIOR USE-EVIDENCE TO ESTABLISH.
In Equity. Coburn <t Thacher, for complainants. West <t Bond, for defendants.