RAT'l' til. DOI:nJ'JIlLD.
to receive A part of the profits of this business, trusting to his patent, and getting up his patent for the purpose, and is not entitled to any particular indulgence; and no reason is shown, arising out of any peculiarities of his situation, why a pre· liminary injunction should not be granted against him; and it is shown that the remedy is an important one to the' plain. tiff. lDJunction to issue.
(Oircua Court, S. D. NMI' York.
DESIGN PATENT No. 7,914-PEARL BUTTONS ARRANGED BY DOZEN&, ON CARD8, IN TIiREE Row8 01' FOUR-REV. ST. 4929.-A design for
a card of buttons, divided into spaces, covered with foil, by narrow bands, with a dozen of pearl buttons in roW8 of three by four to each .pace, is not a .. new. useful and original shape or configuration of an article of manufacture," within the meaning of section 4929 of the Revised Statutes, relating to the granting of patents. . I.
SAME SAME - !In'ENTION. - Cards, for buttons, faced with toll and divided into spaces by bands, were well known NId in oommon use prior to such design, and there was therefore nothing in this arrangement rising to the level of invent.ive skilL
George O. Lay, Jr., for plaintiffs. Edmund Wet71Wre, for defendants.
WHEELER, D. J. This suit is brought upon design patent No. 7,914, for a design for a card of buttons, divided into spaces, covered with foil, by narrow bands, with a dozen of pearl buttons in rows of three by four to each space. The l'tatute (Rev. St. § 4929) authorizes the grant of a patent to any person who, by his own industry, genius, efforts, and expense, has invented and produced any new and origi. Ilal design for a manufacture, bust, statue, alto-relievo, or bl'.s-relief; any new design for the printing of woolen, silk, 'lotton, 01' other fabrics; any new and· original impression;
ornament, print, or picture to be printed, painted, cast, or otherwise placed on or into any article of manufacture; or any new, useful, and original shape or configuration of any article of manufacture, the same not having been known or used by others before his invention or production thereof. The subject of this patent is not covered by this statute unless it is included in the term "manufacture." The buttons are, however, the principal thing; and they are not changed at all, either in form or appearance, by the patented invention. It affects nothing but the card; and that is not a card for buttons, to be used for successive sets, but a card of buttons, which constitutes a mere method of putting them up for sale. to attract customers; not on account of anything at all about the thing sold, but wholly on account of the manner of arranging it for sale. In Langdon v. De Groat, 1 Paine, C. C. Rep. 203, the invention was for folding thread and floss cotton in a manner different from the ordinary mode, whereby it would sell quicker and higher. The court said: "The article itself undergoes no change; and the whole of the impl'ovement-for it is a patent for an improvementconsists in putting up skeins of it, perhaps of the same size in which they are imported, decorated with a label and wrapper, thus rendering their appearance somewhat more attractive, and inducing the unwary not only to give it a preference to other cotton of the same fabric, quality, and texture, but to pay an extravagant premium for it, "Now, that such contrivance-for with what propriety can it termed a useful art, under the constitution-may be beneAcial to a patentae, if he can exclude from the market all other retailel's of. the very same article, will not be denied; an4iftl:>pl'otect the interest of the patentee, however frivolc;>us, useless, or deceptive his invention may be, were the sole object of the law, it must be admitted that the plaintiff has ,a title to his patent. But, if the utility 01:i1iu inveutiou,ie 'to :betested by the advantages which the derive from it,. it will not be perceived how this
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part of his title is in any way whatever established. It is said that many ornamental tbings are bought, of no intrinsio value, to gratify the whim, taste, or extravagance of a purchaser, and that for many of these articles patents are obtained. This may be so, but in such cases there is no deception, no false appearance, and the article is bought to be used with all its ,decorations and ornaments, which may have been the principal inducements to the purchase, and which will last as long as the article'itself." In this case the buttons are to be used by the purchaser, but the card is not, either with them or by itself. The design does not apply to the manufacture proper, but to the of it for sale. Putting an article into a more arrangement convenient form for sale, without changing its qualities or properties, is not patentable as an improvement in the article. Glue Co. v. Upton, 97 U. S. 3. So, merely changing the mode of keeping and presenting an article for sale, without changing its form or will not support a patent for a design. There should be something affecting the article itself. Further, cards for buttons, faced with foil and divided into spaces by bands, were well known and in common use. Those for pearl buttons may not have been divided into dozens, in rows of three by four, but they were divided sO that dozens could be readily cut from the card, in two rows of six and one of twelve; and there were cards divided into spaces for several dozens by such bands as the patent describes; and cards of cloth buttons spaced for dozens in rows of three by four. With these things known, there was nothing rising to the level of inventive skiil in arranging pearl buttons by dozens, on cards, in three rows of four. Let a decree be entered dismissing the bill of· complaint, with costs.
MAYOR, ETC., 01' NlllW YORK.
(Czreuit Court, B. D. New York. June 15, 1880.)
No. 63,419-PATENTABILITY.-A. bond and coupon register, In the form of a book, is a legal subject for a patent.
INFRINGEMENT-LIABILITY OF A CrTY.-A
city is liable in its corporate capacity for the infringement of a patent. Allen v. Thl MaJJor, O. O. S. D. N. Y.· followed.
Royal S. Crane, for plaintiff. Frederick H. Betts, for defendant.
WHEELER, D. J. This suit is upon a. patent to the plaintiff, numbered 63,419, and dated April 2, 1867, for a bond And coupon register. The defendant sets up and insists that this register is not a subject for a patent within the law; that the invention was tendered to and used by William E. Warren and John O'Brien before the plaintiff's invention; and that it is not liable for the infringement shown. The principal argument upon the first point rests upon the -claim that the register should have been copyrighted instead .of being patented, and Drury v. Ewing, 1 Bond, 540, is much relied upon to support that proposition. A copyright is a. right to copy merely, &s the word imports, and covers only the multiplication of copies. Perris v. lIexamer, 99 U. S. 674; Baker v. Selden, S. C. U. S., Oct. 7, 1879, Alb. Law J., Feb. 28, lS80, p. 168. The plaintiff's invention is of a book with a page, or pages, spaced for each bond and its coupons of any series of coupon bonds, and with the spaces numbered and designated to show what bonds and coupons they are for, while any of them are outstanding, and for receiving them for safe-keeping as vouchers, or memoranda, when any of them are taken up or paid. The plan is the same for registers for different bonds of a series, and for different series of bonds, but the registers are not copies of one another, and the right to multiply copies would afford no protection at all. In Drury v. Ewing there might be multiplication of copies
MUNSON V. TllE MAYOn; :&TC.,OF NEW YOB.lt.
of the charts. That case is distinguished and commented on in Baker v. Selden. Here the principle of the invention is embodied in each register, as the principle of a machine is in each machine. There is no difference because the contrivance is in the form of a book, although books are commonly copyrighted. Hawes v. Washburn, 5 O. G. 491. The evidence shows that Warren and O'Brien made use of similar arrangements for the same purpose before the plaintiff invented his, but not that either of them is the same as his. Neither of them had any spaces for the bonds them. selves. Warren had spaces on the same page for each coupon of the same number throughout the whole series of bonds, necessitating looking through as many pages as there were coupons to find all the coupons of any bond; the plaintiff has all the coupons of each bond and the bond together. Warren had as many pages as coupons; the plaintiff as many as bonds. It is not clear, from the evidence, what O'Brien's exact plan was. Resays: "The pages were ruled to a sufficient extent to have posted in the coupons that were due each six months." This would be more like Warren's plan than the plaintiff's. The proof is abundant that the invention is useful, and that the defendant's officers make· use of it for the bonds of the city. That the city is liable, in its corporate capacity, for .sllch an. infringement, has been considered and decided in AUen v. The Mayor, etc., in this. district. Let there. be a decree for injunction and an account, according to the prayer of the bill, with costs.
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and others vw. AnoUT NINETEEN THOUSAND FIVJI HUNDRED AND FOURTEEN BUSHELS OF WHEA.T, etc.
(District Oourt, N. D. New York. JUly 16,1880.)
Williams J: Potter, for libellants. Bowen, Rogers J: Locke, for claimants. WALLACE, D. J. The authorities are uniform to the effect that, as between the original parties to an ordinary bill of lading, that part of the instrument which recites the receipt of the goods, and their condition and quantity when received, is open to explanation; and, while the recitals are prima facie evidence of the facts recited, they are not conclusive. The instrument is in part an acknowledgment and in part a con· tract. That part which is an acknowledgment merely is no more conclusive than any other acknowledgment or declara..; tion. That part which is a contract is fina.I. Bills of lading, however, sometimes contain stipulations intended to make the recitals a patt of the contract, and as conclusive as the rest of the contract; and as the parties to such a contract have the right to agree that the recitals as to the condition and quantity of the cargo shall be conclusive, the courts will give to the stipulations the effect intended by the parties. When the language of the stipulation is clear, the court has no duty but to give effect to it, and it is only when the language employed is capable of different meanings that it becomes necessary to resort to precedents and rules of construction in order to interpret the contract. In this case the bill of lading recites the receipt of 20,000 bU3hels of No.1 sprin!2; wheal; in sood order and condition,