pervening event. Of course, if the bill is filed so nearly before the expiration of the patent that, according to the usual practice of the court, no injunction could be obtained in time to be of any service, it is obvious that the bill should not be sustained. The substantial hold which the court has being for the purpose of awarding an injunctiou, it will not entertain the case at all if the expectation of affording that remedy is manifestly illusory. But if, at the commencement of suit, the facts exist, and there is time to afford the remedy while it may yet be efficient, it would be contrary to the general principles of the court to dismiss the bill, because, on account of the delays of litigation, it had lost the power to grant that relief, provided other subjects oflegal inquiry remained in the case. ' It is a necessary consequence of these doctrines that the complainant is entitled to a decree and an order of reference to ascertain the d a m a g e s . ' .
(Oircuit Oourt, N. D. NeJ1() York. September 15, 1886.} 1.
The second claim of letters patent No. 244,944, of July 26, 1881, to Joseph B, Stetson, for an improvement in lanterns, being-for "the tubular frame, D, D', and the globe. G, in combination with the plates, C, p, the connecting rods, F, and the 'guides, H, whereby said globe is raised by a suitable lever, and guided or steadied laterally in its movements, for the purpose set forth, " . construed, ,and held, that said claim is not limited to the precise apparatus mentioned in the fourth claim of the patent, nor to any particular mechanism for raising and lowering the globe. .A patentis to be construed according to its true intent and meaning, so as to give the inventor the benefit of what he has actually invented, even though his claims be carelessly or inartificially drawn. A company defendant whose president and trustees, with one exception, had recently occupied positions of trust and confidence under complamant, and had continually recognized and asserted the validity of a patent, is not in position, when sued for infringement, to demand that the rules ofequity shall be strained in its behalf.
PATENTS FOR INVENTIONS-CONSTRUCTION OF CLAIM.
2. SAME-RuLES OF CONSTRUCTION.
3. SAME-EQUITABJ,E ESTOPPEL.
Motion for a Preliminary Injunction. Edwin S. Jenney, (Louis Ma.rshall, with him,) for complainant. B. Selden, for defendant.
COXE, J. The bill alleges the infringement of two patents owned by the complainant. The questions arising upon the patent granted to John H. Irwin, February 1, 1870, No. 99,442, were disposed of at the close of the argument. The patent granted to JosephB. Stetson, fo1' an improvement in lanterns, July 26, 1881, No. 244,944, alone remains to be considered. The invention relates to devices
by Charles C. Linthicum, Esq., of the Chicago bar.
STEAM-GAUGE &: LANTERN CO.
HAM MANUF'G CO.
for detaching, raising, supporting, and lowering the glass globe of a tubular lantern, in order that the globe may be cleaned and the lamp filled, trimmed, lighted, or extinguished. It was stated on the argu- . roent that the validity of the patent in question must shortly be passed. upon in an action pending in the district of Massachusetts, which has been finally submitted, and is now awaiting the action of the judge. Inthese circumstances, it is thought to be for the advantage of both parties that they should have the benefit of a decision made upon final hearing, based upon evidence which has been carefully scrutinized, and upon the testimony of witnesses who have been examined and cross·examined. A record so made up is, necessarily, far more satisfactory than the ex parte proof presented upon a motion of this character, supplemented though it be by the opinions of those ancillary counselors called experts, whose arguments upon the law and the facts terminate in a jurat, and are frequently referred to as affidavits. Upon the question of infringement, it is quite clear that the defendant's lanterns have the tubular frame and the globe, in combination with the concave annulal;' top plate, the perforated bottom plate, the connecting rods, and the guides. of the patented structure. They must therefore be held to infringe the second claim of the patent, which is as follows:
"The tubular frame, n, nt, and the globe, G. in combination with the plates, C. p, the connecting rods, F, and the gUides, H. whereby said globe is raised by a suitable lever, and guided or steadied laterally in its movements, for the purpose set forth."
Even though the "suitable lever" be construed as a necesAary element of the combination, the defendant'", thumb-piece may, by a liberal construction of the claim, very properly be regarded as a fair equivalent therefor. It is by no means necessary to construe this claim as covering the exact form of lever shown by the drawings or the precise apparatus described in the fourth claim of the patent, with the shoulder, thumb· piece, and loop there mentioned. Jordan v. Moore, L. R. 1 C.P.' 624; Hamilton v. [ves, 6 Fish. Pat. Cas. 244; Machine Co. v. Murphll, 97 U. S, 120. It is apparent, both from the claim and the description, that the inventor did not intend to limit himself to any particular mechanism for raising and lowering the globe. Not only does he say so in terms, but, had he omitted the statement, the claim would fairly mean this, unless subjected to a most narrow and illiberal construction. To contltrue the claim as demanded by the defendant, would· be to ignore the salutary rule which, discarding subtleties and tech. nicalities, interprets a patent according to its true intent and meaning, so as to give the inventor the benefit of what he has actually' inventf\d, even though his claims be carelessly or inartificially drawn. What the patentee evidently meant was that the combination de- '
scribed in the claim was to be raised and lower by any suitable lever or device. Something of this kind was a necessary part of, or adjunct to, the combination, but no stress was intended to be laid upon a specific manner of accomplishing this result. The globe needed to be raised and lowered, and he intended to claim, in connection with his combination, any suitable means by which this could be done. Thus construed, there can be no doubt as to the infringement of the claim. No one can place the two lanterns side by side without being convinced of the attempt at evasion. The wire attached to the elongated sleeve of the top plate of defendant's lantern, (No.2,) so bent as to form a lateral thumb-piece, performs substantially the same functions as the so-called "lever" of the claim. Both operate to raise or lower the globe by continued upward or downward pressure of the thumb, and, even apon the defendant's theory of interpretation, may fairly be regarded as equivalents. The similarity can be more clearly seen by supposing that the loop, M, of the patent, instead of being fastened to the central tube, had been firmly attached to the lever near its stationary end, and had then exte,nded around the tube, so as to engage it tightly when moved up and down and hold the globe' in an elevated position by the friction of the parts. There can hardly be any difference in principle between such a construction and that shown in the infringing lanterns, and referred to in the claim. That defendant's spring performs substantially the same office as complainant's lever in holding down the globe seems to be admitted in the brief submitted by one of the defendant's experts, in which he says: "The use of Colony's spring in the Ham lanterns renders unnecessary any such device as the Stetson 'spring lever,' by which the globe is held down on the burner in the patent in question." In short, the defendant, by means of its spring, thumb-piece, and sleeve, does precisely what complainant does by its "spring lever." The fact that the defendant's president was, a few months ago, the president of the complainant; that, with one exception, the trustees of the defendant but recently occupied positions of confidence and trust under the complainant, and continually recognized and asserted the validity of the Stetson patent; together with the fact that they have failed to respect the restraining order pending this motion,predisposes the court to hold the defendant to a stricter accountability than an ordinary infringer. The defendant is not in a position to demand that the rules of equity shall be strained in its behalf. The restraining order should therefore remain in force until the determination of the action referred to. Should the decision be adverse to the validity of the patent, the defendant may move to vacate the order. Should the patent be sustained, the plaintiff may move tosubstitutt a formal injunction. The bond heretofore required of the complainant should, within five days, be increased to $25,000.
BAMMERSCHLAG MANUI!"a co.
'D. JUDD. l
August 20, 1886.) No.
PATENTS FOR INVENTIONS-HAMMERBCHLAG REISSUE MENT IN WAXING PAPER.
Notwithstanding the decisions sustaining the fifth claim of the Hammerschlag reissue 8,460, for improvement in waxing paper, (Ham1lU'fl'schlag v. Scamoni, 7 Fed. Rep. 584; Hammerschlag v. Garrett, 9 Fed. Rep. 43; Hammerschlag Manu/'g 00. v. Wood, 18 Fed. Rep. 175;) a preliminary injunction refused, the court having doubts on the question of mfringement. Although due weight is given to prior adjudications upon a patent, the question of infringement is still to be determined in each particular case as it arises.
2. SAME-PRIOR ADJUDICATIONS-INFRINGEMENT.
SAME-CONSTRUCTION OF HAMMERSCHLAG PATENT-INFRINGEMENT OF PROCESS.
The process described by Hammerschlag consists of several steps: Spreading the wax upon the surface; heating the paper from the opposite side, to spread and fuse the wax into the fabric of the paper; removing the surplus wax; and remelting and polishing the wax upon the paper. It not being shown that defendant's machine removed any of the surplus wax, or remelted and polished the wax upon the surface of the paper, infrmgement is not clear, and an injunction denied.
In Equity. Roscoe Conkling and Louis W. Frost, for complainant. Causten Browne, for defendant. COLT, J. Without questioning the soundness of the decisions in several circuits, including this, in favor of the fifth claim of the Hammerschlag patent, I cannot see my way olear, upon the papers before me, to grant a preliminary injunction in this case. Giving clue weight to all prior adjudications, and recognizing their scope, the question of infringement is still to be determined in each partioular case as it arises. Bearing in mind that the fifth claim of the patent is for a process, and giving it the broad construction adopted by Mr. Justice BLATCHFORD and Judge LOWELL, I am still not free from doubt on the question of infringement. The process described by Hammersohlag consists of several steps: Spreading the wax: upon the surface; heating tbe paper from the opposite side, to spread and fuse the wax into the fabric of the paper; removing the surplus wax; and remelting and polishing the wax upon the paper. The machine is thus described by Judge LOWELL:
"The wax is spread upon the paper by means of a heated cylinder, which revolves in a bath of melted paraffine; it then passed over a heated roller, which diffuses it equally; then over a scraper. which removes the surplus wax; and then over a polishing roller, and is wound upon a reel."
In the Judd machine the paper passes over two wicks, which draw up the heated wax from the tank. These wicks have the form of