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.
Some of the cases hold that the defence that the patentee was not the original and first inventor of the patented s'ubject can only prevail· when shown beyond any reasonaQle doubt. Crouch V. Spear, 6 O. G. 187; Hawes v. Antisdell, 8 O. G. 685. These defences in this case wholly fail when tested by the rules applicable to them. The strongest case is made in reference to the prior use of the formula by D. B. Smith and those in his employ. The proofs show that Mr. Buchanan was the first person to introduce the article of birch beer to the trade at Binghamton, and did so in the spring of 1871. His beer was favorably received, and his competitors in the same line of business were stimulated to attempt the production of a similar article. Among these competitors was D. B. Smith. He had previously been carrying on business with Mr. Vincent, but they had dissolved, and each was engaged in the business of making and selling summer beverages separately. These defendants were in the employ of Smith, and continued in his employ until 1875, when Smith sold out his business to them. Smith commenced making birch beer in the summer or fall of 1871. Sometimes he made it with birch bark, and sometimes he used oil of wintergreen. He experimented, also, with oil of birch. But it is apparent he never discovered the complainant's formula, because he was never able to make an article which was entirely satisfactory, as would have been the case if he had used the complainant's formula. If he had discovered the. complainant's process he would have used the oil of wintergreen in decided preference to the birch bark, but it is shown that as late as 1876 the defendants, who knew all about Smith's process, and who at that time had succeeded to his business, were experimenting with birch bark, and it was not until after that time that they finally discarded its use. During all these yeal'S, also, Smith and the defendants had been experimenting with other ingredients, and, as is now claimed by the defendants, in 1873-4 they used sapindus, and since 1877, cochineal also. It would seem that the defendants had not found a process which was
(l!ear and satisfactory proof to the contrary.
entirely satisfaotorY'to them until 1877. The complainant's priority of be overthrown by any Buch evidence of anticipation as is disclosed here. The complainant has made a prima facie case on the issue of infringement, by proving a substantial similarity between the product of his process and the defendants' beer in taste, appearance, and general characteristics; and he has supplemented the evidence by the testimony ofa former employe of the defendants, who professes to give tbe -formula used by the defendants in making their beer. This witness does not claim that defe'ndan'ts used the formula· described in complainant's second patent. I do not credit the testimony of this witness as to the formula used by the defendants. He was in the defendants' employ but a short time, and then was not employed in manufacturing, but in outside work, and was discharged by them, and is now in their debt. It was well known at the time that the complainant claimed the defend. ants were infringing his patent, arid notices and circulars to the trade had already been circulated on the subject by both parties. It is altogether probable that defendants, if they were seeking to avail themselves of complainant's process, would, under the circumstances, have adopted some colora· ble departure from it. But it is quite improbable that they would thus have put themselves in the power of an employe. The case then resolves itself into the single question, whether the proof of. similarity in the manufactured articles is sufficient to overcome the direct testimony of the defend· ants. The defendants seem to be men of character, and there is nothing in their testimony to discredit their veracity. It appears they had been able to make a satisfactory article of birch beer before complainant obtained his first patent, and the evidence to show a difference between that article and their present product is quite vague. It would seem that an analysis might have been made, and the fact aaeertained whether or not the defendants' product contains the various ingredients of the complainant's formula in substantially the same proportions, and whether or not the foreign ingredients used by the defendants are of any importance. Wl;.i,le I am v.3,no.11-41
by no means satisfied that the defendants are not using the complainanfs formula in substance, I do not think it would be aafe, upon the e,vidence offered, to find affirmatively that they are using it, and have falsified as witnesses. The bill is dismissed, with costs.
BURTON t1. THE TOWN all' GREENVILLE.
(Oircuit Ooure, D. New Hampshire.
PATENT No. 10,497, for a design of a street lamp, Mid void, upon the ground that sueh design had been in publi9 use for more than two years when such patent was applied for.
In Equity. Geo. E. Betton, for complainant. Stearns d; Butler, for defendant. LOWELL, C. J. The complainant has taken out and now owns two patents for designs of a street lamp: No. 9,488, September 5, 1876, and No. 10,497, February 19, 1878. The former describes and shows by a drawing a lamp post, with an enlarged base and a smaller shaft, surmounted by a cap. From the cap projects an overhanging curved arm, from the lower and free end of which depends a chain, made fast to the outer corner of a bracket, in which the lamp or lantern is set. This bracket has projections loosely fitting the post, so that the lantern can be moved up and down. The lamp is suspended under the center of the arch or arm. The patentee claims "a design for street and park lamps, composed of the upright post with enlarged base, the arched arm, the chain, the bracket, and a lamp placed below the arch, all sub. flf,antially as shown and described." The second patent describes and shows a design which differs from the first in certain particulars. It has two lanterns, one on each side of the post. The bracket which holds the lantern is more complete, having lower edges and sides, so as to form a carriage or cage, rather than a bracket; and this is upheld by a bailor handle, which is attached to the middle