KITTLE V. HALL.
rare-registers. The patented invention is a combination which includes a hand to indicllteany failure to reset the trip-hand of the regofa trip. 26 Feci. Rep. 522. The. ister at zero at the tell-tale hand of the patent is moved with the trip-hand in resetting, and, if they are reset at zero, moves with it in registering fares until they are again reset. If they are not reset at zero, the tell-tale hand remains at the place at which they are reset when the trip-hand moves forward in registering fares, and indicates that registration was begun at a wrong place. rl'he tell-tale hand of the infringement moves the trip-hand ward in resetting, and is left by it when registration beginsj and, if is begun at any place other than zero, it indicates that fact. Since the injunction, the defendant has commenced using another resetting device, which the plaintiff claims is an equillalent of the tell-tale hand in the combination, and a colorable attempt to evade the. injunction. The plaintiffhllB moved for an attachment on account of thiause of that device. . This device resets the trip-hand by moving it forward, and has!a stop by which it cannot move the trip-hand beyond zero. If it is stopped short of zero, and registration is begun, it can be moved up to zero when the trip-hand has proceeded in registration to that point or beyondj and, if it is stopped at zero, it. can be moved back from that point llot .l;l.ny time, and forward to it again, without interfering with the trip-hlUld ilil registration.. It is therefore a stop on moving the trip-hand forward beyond zero, but is not ,capable of fixed where registration is b,egun away from the proper place so as to indicate that fact, or act as.ll. tale at all. Therefore it is not the equivalent of the tell-tale in combination, and its use.is not a violation of the injunction. The motion is denied.
KITTLE ·v.. .
and others. .
(OiIrcuit Oourt, 8. D. New York. 'March 9,1887.)
PATENTS FOB INvENTIONS-INvALID CLAIM-DISCLAIMEB-!:NFBmGEMENT-DAMAGES.
A patentee who has retained, during the life of his patent, an invalid claim, may recover upon the valid claims, though he filed no disclaimer after the decision holding the claim invalid. it appearing that the patent was then about to expire and that it was too late to file a disclaimer.
In Equity. The court heretofore decided (Kittle v. HaU, 29 Fed. Rep. 508) that the complainant, although the third claim of his patent was invalid as having been irregularly inserted, was, nevertheless, the patent being about to expire, entitled to a decree for an accounting as to the valid claims. No disclaimer was filed, and the defendants now move to dismiss the bill for that reason. James P. Fbster, for complainant. Ja'TM8 A. Whitney, for defendants.
CoXE, J. It is unnecessary to follow the very elaborate discussion by counsel of the question involved further than to say that I am quite clearly of the opinion that the decision in Yale Lock Co. v. Sargent, 117 U. S. 536, 553, 554,6 Sup. Ct. Rep. 934, must be regarded as a controlling authority in favor of the complainant. That was a suit upon a reissued patent containing five claims. Only one, the· first, was alleged to be infringed, and apparently this was the only claim considered in the court below. The complainant obtained a decree for an injunction, and for damages amounting to several thousand dollars. The supreme court held that claim No.4 of the reissue was clearly void; that there was no unreasonable delay in filing a disclaimer, for the reason that the patentee had not before been informed of the invalidity of the claim; and that no disclaimer could theI} be filed, as the patent had e:xpired. except as to costs, was, nevertheless, in all things affirmed. In other words, apatentee who had retained, during the life of the patent, an absolutely invalid claim, was permitted to recover upon the valid claims, thou'gh no disclaimer was filed or was possible when the decision waS rendered. In the' case in hand, for various reasons not necessary to discuss, theheariag was, delayed until within a few weeks of the expiration of the' patent. The' complainant was then for the fit:st time told that his third claim w!lSvoid. After the decision was made,it was probablyoo<date til file a disclaimer; but, in any event, it would have been operative for less than a day, and the filing would have been a vain and inconsequential act. It would, in such circumstances, be most inequitable, after deciding that the complainant has made a meritorious invention, to turn him out of court upon the application of an infringer, unless the proposition that he is remediless is an exceedingly plain one. Believing, however, that the doctrine of the Ya7e-Sargent Case will require an affirmance of the decree in this regard, it is clearly the duty of the court to deny the motion. A decree should be. for the complainant in accordance with the decision heretofore filed, but without costs.
MAY'll. COUNTY OF JUNEAU.
(Oireuit Court, W. D. Wiaeonrin. February 11, 1887.)
PATENTS FOR INVENTIONS-LIABILITY OF COUNTY FOR INFRINGEMENT-FRAlID QF CONTRACTOR FOR COUNTY JAIL.
SAM!B-AssIGNMENT-DAMAGES FOR PRIOR INFRINGEMENTS.
G.Jr. Hazleton, (M. a Burch, of counsel,) for plaintiff. F.B.' 'Vet!der, (Pinney &; Sanborn, of counsel,) for defendant.
jury.) , This is an ,action of trespass on the case under the laws of congress for the infringement of a patent-right. The evidence being in on both sides, the defendant's counsel now asks the courttoinstructthe jury to return a verdict for the defendant, upon the following grounds, to-wit: First, that the action being in tort for the infringementofa patent-right, the county is not liablejsecand, the assignment of the patent frotn the executor to the plaintiff did not carry with it the right to maintuin actions for infringement of the patent occurring previous to the assignment of the patent, and during the life-time of her pusband, the patentee. I When this case was before the court upon demurrer to the complaint, 'the first question above stated was argued and submitted, and the court looked intI? the authorities, and considered the question of the liability of a county in such a case. The demurrer was overruled pro forma, and 'the question reserved for further consideraion upon the trial, when it was supposed the facts would more precisely appear. The evidence is noW in, and there is no question made about the facts. From these it appearfil that the plaintiff's patent consists in a certain device for locking and unlocking' at once all the cells of a jail by the sheriff or turnkey from the outside, standing in a position where he can view the interior of the jail, atla observe the situation and attitude of the prisoners, and so shield himbelf from assault by any desperate or ill-disposed prisoner. The patlA city ,is Usb,le in its corporate capacity for the infringement ofa patent, :M;unson v. City of New York, 3 Fed. Rep, 339, although the infringement was by the fire department of the ,city, and sucb department was separately incorporated, BrickiH v. City of NewYork,7 Fed. Rep. 479. . .' .. .' See. also, May v. Mercer Co., port, 246 j May v. Logan Co., post, 250 j . May v. Buchanan Co., 29 Fed.: Rep. 469; :May v. County of Fond du Lac, 27 Fed. Fp,p" 691.