to avail them'selves of the trick to which they· resorted to obtain a preference over other creditors of the bankrupt. If I were satisfied that the defendants were unjustly and ,illegally deprived of any defence they had, I should feel inclined to reverse the judgml'lnt of the district court, and allow that defence to prevail; But I am clearly of the opinion that the defendants could not be permitted, with such facts as these before the court, to set up such a defence. So, on the whole, it seems to me, leaving out of view all other' questions in the case, and putting it only on the ground that justice 'has been done between these parties, that the judgment of the district oourt ought to be affirmed. And it is, accordingly, affirmed.
(Circuit (Jourt, No D. New York.
bU'ROVEMEN'f IN CHEEf-E Hoops."-Letters patent granted to William Stcinbergh, March 21, lS71, and re-issued August 5, 1879, for an .. improvement in cheese hoops," sustained. 2. RE-IsSUE-C'ONSTRUCTION.-The claim of 'a re-issue will not be enlarged by construction.
D1Mll, Laas tf Hey, for complainant. Wm. H. Httbbard, for defendant.
WALLACE, D. J.The complainant is the assignee of the letters patent granted to William Sternbergh, Uarch 21, 1871, and re-issued August 5, 1879, for an "improvement in cheese hoops." The bill is filed to restrain the manufacture and sale by the defendant of cheese hoops known as the "Frazer Hoop," which are manufactured by the defendant under the patent According to granted to Milton B. Frazer, January the theory of the complainant it had been usual, in the process of cheese making prior to Sternbergh's invention, to press the curd in a sack or press cloth, and when firm enough to handle the cheese was removed from the hoop, the press cloth
1'YLE& V. WELCH.
taken off and a bandage put. on, and the cheese again placed in the,hoop.and subjected to pressure. The object of Stern· bergh's was to complete .the process in one operatio,n". and 0f, first using the press cloth. To effect this it was necess,ary that a hoop should be con· structed iqwhich a baqg.a,ge c.ould .be securely fastened at the upper part of the hoop, the .bandage would become dudng:the proces of pressing, and leave indentations in the chel}se" wpich ,would: soon be occupied ,by skippers, and it was qesif¥>le that the bandage should be fastened in such manner interfere with the In the original patent SteFnherg.p's invention is described as consisting in ring or band for holding the upper end·of the bandage, inside the hoop, and made to occupy a groove in the hoop so as not to interfer.e with the follower. The ring is provided with a contrivance for locking it in its place within the groove. In using the Sternbergh poop the cheese bandage is placed in the hoop, and its upper. edge is he,ld between the ring or band by expanding the band into the groove :and locking it in its place. The bandage is then smoothed by letting dowll what constitutes the bottom,()fthe hoop. The curd is then inserted, ll-nd the pressing operation begins, during whieh. the bandage is held firmly in place, while the band, being within the groove, does not obstruct the free passage of the follower. So far as appearsirom the proofs, Sternbergh was the first to employ an adjustable band, located within a recess inside thecbeese hoo.p, which would hold the bandage firmly, and yet not interfere with the follower. Neitherthe Bent nor the Wilson cheese hoop are anticipations. They were designed to effect the same object which Sternbergh sought to obtainthe dispensing with pressing the curd in a sack ,before. pressing it in a bandage-and did effect this, but not by the same means. There is nothing in either of these hoops, which would suggest Sternbergh's invention. The defendant's hoopcqntainsan a.djustable band, located partly within the hoop and pa.rtly above it. It occupies. & recess within the hoop, is locked, and holds the bandage sub-
stantially in place as Sternl)ergh's does. I cannot doubt that it is an appropriation of Sternbergh's invention, and if the real invention had been more carefully described in the original patent the case would be entirely clear. Some doubt, however, is suggested because the language of the description and claim in the re-issue departs from that employed in the original for describing the recess which holdE! the band or ring; and it is urged that the re-issue is void as enlarging the scope of the invention disclosed in the original. The original describes So ring or band "made to occupy So groove in the hoop so as not to interfere with the follower." The re-issue describes a hoop "with an annular groove or depression," and a ring or band made to occupy it. By the aid of the drawings there is no difficulty in ascertaining what the patentee meant in his original specification by the term "groove." Without the drawings, reading the entire description of the several parts, and ascertaining their functions when used in the process of pressing cheese, as detailed, it would be the natural and necessary inference that such a channel was contemplated as would be appropriate for the insertion and location of the expansible band. The drawings show an annular recess near the upper part of the hoop. The function of this recess is to hold the band, during the downward pressure of the follower, so that the exterior surface of the band shall be the same as that of the interior of the hoop. Any change in the form, or even in the location, of this recess, which does not involve a change of function, would be immaterial, and would be permissible under the original patent. I atu of opinion that if this action had been founded on the original patent, complainant could have succeeded. It is the office of a re-issue to correct errors the specification and in the claim. of the original patent. When alterations are made which enlarge the scope of the patent, and secure to the patentee improvements made by others subsequent to the original pa.tent, they should be carefully scrutinized in order to see that nothing is granted which was not fairly disclosed originally. In this case, I doubtwhetherthere
ROGERS V. BElIlOHEB.
is any essential ohange in the speoifioations; but, certainly, there is none whioh is fairly open to oritioism. While the first claim in the re-issue is capable of a broader construction than is by confining it to the real invention of Sternbergh, yet suoh a oonstruotion should noli be given to it, according to the rules which prevail. The second olaim is a more exaot statement of the invention to whioh the olaimant has the exolusive right.A decree is ordered for oomplainant enjoining the defend. ant, and for an accounting acoording to the prayer of the bill, with costs.
September Ill, 1880.)
((Jircuit (Jourt, N. D.' New York.