CUMMINS V. ROBERTSON.
The objections to the protest made by the defendant were: (1) That it does not comply with the requirements of section 2931, Rell. St., in that it does not set forth distinctly and specifically the grounds of the plaintiffs' objection to the duties levied on their merchandise by the collector. (2) It does not refer in terms to any tariff act, nor to any section, schedule, clause or paragraph of any tariff act, nor to the name of any article or merchandise of commerce, specially or generally, under which the plaintiffs claim the goods should be dutiable. (3) Bichromate of soda, eo nomine, is not specified in any tariff act. The protest does not state that bichromate of soda.. should pay a duty of 25 per cent. as a chemical compound, or chemical salt, (as now claimed by plaintiffs,) nor does it refer the collector in any manner to Schedule A of the tariff act of 1883. (4) Paragraphs (Heyl) 6, 29, 39, 87, 88, 92, 93, 124, 185, 206, 283, 384, 392, 398, 401, 407, 422, 427, 429, 455, 458, 459, 469, and 486 of the tariff act of 1883, each and all, impose a duty of 25 per cent. ad valorem. The protest does not point out to the collector under which of such paragraphs the plaintiffs claim their goods to be dutiable. (5) The invoices and entries throw no light upon, and furnish no guide to, goods. The merchandise is mentioned iherethe classification of in simply as casks or barrels of bichromate of soda. The United States district attorney quoted Sadle·r v. Maxwell, 3 BlatChf. 134, 135; Davies v. Arthur, 13 Blatchf. 34; 96 U.S. 148; also Smith v. Schell, ante, 648. Plaintiffs' attorneys quoted Frazee v. Moffitt, 18 Fed. Rep. 584. Ditdley J.·Phelps and Edward Hartley, for plaintiffs. Stephen A. Walker, U. S. Dist. AttY'i and Henry O. Platt, Asst. U. S. Dist. Atty., for defendant.
COXE, J., (orally.) I am clearly"of the opinion that this protest is insufficient. To hold it valid, the court, in my judgment, would have to disregard the plain language of the statute which requires the importer to point out distinctly and specifically the grounds of his ob. jection. This protest does nothing of the kind. Bichromate of soda is a non-enumerated article, and no section of the statute is reo to under which the importer insists that the duty should be collected. The protest does not state that the importation is achemical salt. The section of the tariff act of March 3, 1883, providing for an ad valorem duty of 25 per cent. upon "all chemical componnds and salts" is in no way alluded to. In short, there is nothing stated in the protest to aid the collector in making a correct classification. No guide is given him. He is simply referred to the statute, and reo quested to search through its manifold provisions for the purpose of proving himself in error. He is informed that be has made amiso take, and is told that he may find it if he examines the statute with sufficient diligence. The law relating to protests contemplates much more than this.
ity in point, for in that case there was but one section of the statute
under which the liquidation could have been made, and, with that section and the protest before him, the collector could not have been misled. In the case at bar, on the contrary, there are a large num· ber of clauses, stated by the district attorney to be about 24, which provide for an ad valorem duty of 25 per cent. There is nothing in the protest calling the attention of the collector to the one upon which the importer relied. The objections to the admission of the protest are sustained. The protest being excluded, the district attorney moved for a direction of a verdict for the defendant, which motion was granted by the court.
The case of Frazee v. Moffitt, 18 Fed. Rep. 584, is not an author-
and others v.
(Circuit Court, No
York. May 10, 1886.)
PATENTS FOR INVENTIONS - ASSIGNMENT, RESERVATION IN SIGNEE FOR INFRINGEMENT.
Where the owner of II patent assigns for certain states, but reserves to him· self the right to use the invention in one of said states in common with his assignee, such reservation will not defeat an action by the assil\'nee alone for an infringement Of the patent in the states not covered by the reservation. But it would not be an unreasonable construction of such an assignment to say that the patentee, having, by the usual words of transfer, divested himself of all right, title, and interest in the patent, desired to provide that he should be permitted to use the patent in the territory covered by the reserwithout subjecting himself to an action for infringement.
SAME-CONSTUUCTION 011' ASSIGNMENT.
SAME-DEFENSE THAT TITLE IS DEFECTIVE MUST BE PLEADED.
Where alleged defects of title might have been corrected had plaintiff been notified prior to the trial, Iwld that, under the provisions of the New York Code, it was the duty of the defendants to apprise the plaintiffs, either by demurrer or answer, of this defense.
An attack on the validity of II patent comes with poor grace from one who has paid large sums of money for its privileges, and built up a flourishing business by asserting that his goods were made under it, and who has maintained that it was good and valid in law, even though when sued as a trespasser he may not be technically estopped to dispute its validity. In such a case, and where, although the invention was of great value, there was a full acquiescence on the part of the public in the validity of the patent, the court should scrutinize evidence against its validity with the utmost care.
SAME-EFFECT OF ACQUIESCENCE BY }'UBLIC.
The patent was for a wooden pipe, which was rendered impervious to water or gas by coating it inside and out with a composition of coal-tar and sawdust. It was shown that pitch was known itS a preservative of wood long prior to the date of the patent; that it had been used as a coating for wooden
Edited by Charles C. Linthicum, Esq., of the Chicago bar.