EiANJtER -v. BOSTWIOK.
(Oircuit Court, 8. D. New York. June 14, 1880.) .
Geo. Harding and John R. Bennett, for complainant: " Cau,sten Browne and Livingston Scott, for defendants.
WHEELER, D. J. This suit is brought for relief against infringement of letters patent No. 43,371, dated June 28, 1864, issued to Banker & Carpenter, assignees of George W. Prince, for an improvement in the manufacture of tin cans, and now owned by the plaintiff. The defences relied upon are that this ment was known to and used by Edward Q. Covell, and was described and shown in letters patent No. 42,351, dated April 19, 1864, and issued to him for an improvement in the manufacture of tin cans' before the invention of Prince. The plaintiff insists that the invention and patent of Covell are for a different improvement from that of Prince ; and that, if . not, Prince invented it before Covell did. The has been heard upon these questions, on pleadings, proofs, and argument of counsel. To understand these patents it is necessary to examine the drawings in connection with and as a part of the specification, and to rely upon them alone, to some extent, to ascertJ,in the exact form and position of some of the parts. Hogg v. Emerson, 11 How. 587. The improvements relate to the joints of flat-sided cans. Covell's invention was of a joint made by having one edge of a plate for a side of a can tUl'lled inwardly, with reference to the can, with a bend at about a right angle, and then out· wardly with a circular bend, forming a shallow groove on the
outside ofthis flange, for receiving a flange turned inwardly, with a simple circular bend on the edge of the next plate, which hooked into the gutter of the other flange, making a smooth rib over the joint on the inside of the can, and an accessible gutter between the bends for soldering the joint on the outside. Prince's was of a joint made by having the edge of a plate turned inwardly, and then reversed on itself, forming a double :flange, with a narrow and deep groove between the sides, receiving a flange turned inwardly on the edge of the next piece, at the proper angle, and fitting into the groove so as to be clamped by its sides, forming a joint on the inside of the can, and an accessible gutter on the outside for the solder. The differences in the shape and depth of the grooves for receiving the flange of the next piece make an important diference in the hold they take of the flange, and in the solidity and strength of the joints, and in the joints as a whole. Prince's has strength from the strength of the metal without solder, and a convenient gutter for solder to make it tight and still stronger. Covell's had a convenient gutter for solder, but depended on the solder for its strength. The object of Covell appears to have to provide a joint which could be easily soldered; that of Prince to make a joint of increased strength, as well; and both appear to have succeeded. The joints are different from each not merely in degree, but in kind. Prince's can had the same joint to unite the head, and bottom to the sides, and Covell's a different one for that purpose from those uniting the sides, and the infringing can has different joints there; but this is not material, for the invention and infringement could consist in joints of a particular form for parts of cans, as well, pro tanto, as for the whole. Goodyear Go. v.Preterre, 15 Blatch£. 274. These conclusions are in accordance with those of the patent-office, which had both applications, and that of one Merrifield before it at the same time, and declared an interference between Prince and Merrifield, but not between either and Covell, and granted a patent to both Prince and Covell. These considerations entitle the plaintiff to a decree sus-
HAYDEN V. GI:EAT FALLS MANUF'G 00.
taining his patent, and render the determination of the other questions, whrch is not without difficulty, although they have been presented with great thoroughness and care in argument, unnecessary. There is no question made about infringement, and there must be a decree for the plaintiff. Let a decree be entered for an injunction and an a.ccount, a.ccording to the prayer of the bill, with costs.
GREAT FALLS MANUFACTURING COMPANY.
(Ozrcuit Oourt, D. New 1loJmpshire. --,1880.)
PATENT-PRACTICE-SUPREME COURT EQUALLY DIVIDED.
In Equity. The defendants filed a demurrer, and, among other causes, alleged.that the complaint was barred by the statute of limitations. The patent was dated December 1,1857, and extended seven years. In 1866 a partial account of damages was rendered to the complainant; the question being whether the suit could be maintained after the expiration of the pat. ent. Geo. L. Roberts cf; Brothers, for complainant. Mr. Copela.nd, for defendant. LOWELL, C. J. This question has been once argued before the full bench, at Washington, when the court was equally divided in opinion. Under these circumstances the case is to be re-argued, and, pending its decision, the rule heretofor.e adopted in this circuit will be, until otherwise ordered by the supreme court, maintained, viz., to permit the bill to be brought. The demurrer was overruled.
EBERT and others v. THE SCHOONER REUBEN DOUD.
(District Oourt, E. D. Wisconsin.
for libellants. D. S. Wegg, for respondent. DYER, D. J. A libel was heretofore filed in this court by libellants, as the owners of the schooner Arab, to recover damages sustained by that vessel in a collision with the schooner Reuben Doud, which occurred while the two vessels were lying at the port of Racine during a storm. The libel charged the whole fault upon the respondent vessel. An answer was interposed which controverted the material allegations of the libel, and set out a state of facts showing that the collision was occasioned wholly by the fault of the Arab. There was also a general allegation in the answer that the Doud was injured in the collision, but the manner in which she was injured, and the particulars and extent of her injury, were not alleged. No cross libel was filed in behalf of the Doud. The case came to a hearing upon the proofs, and the court found both vessels in fault, ordered a division of the damages according to the practice in such cases, and the usual order of reference was made to a commissioner, who was directed to ascertain and report the damages. It was not specifically stated in that order that the damages sustained by each vessel should be ascertained, and because of the general language of the order it has been a question with the commissioner and the parties litigant whether it was intended that proof should be taken showing the damage sustained by both vessels, or whether it should be limited to the damages sustained by the Arab. Testimony was taken by the commissioner on