Hon to its own use, has become, to the extent to which it employs the improvement, an, infringer.' , , The defendants also make the point that the character or the kind of sheets of celluloid is not sufficiently disclOsed by the patent. As there was hut one Jrindofcelluloid sl1eets which could, at the date of the patent, be used for the purpose,. and 'the mechanic had no need of definite instruction, because the "cut" sheetS were obviously the only ones which were, at the time, available, the objection seems to be theoretical rather than real. ' It is apparent that the American Zylonite Company made the comp0tlPd sheet for the Taylor & Tapley' Company, with knowledge of the method in which it was to be used' by that company in the manufacture of,collars. The affidavit of Mr. the president of the company, does Ilot deny this. It engaged 'Yith the other defendants in a common purpose to avoid the patent,' iitiq', in connection with them, it actually, by theirconcertedaction, ihftingedthe patent. . ". is granted as against the defendants who have been served . The 1Vith process.
&' RUBBER-BuCJrnT ot4era.
(Oh-cuit Oourt, N. D.1UiriiM. March 28, 1887.)
1. PATENTS FOB INVENTIONS-NoVEl!l'Y-BUCXETS FOB CHAIN-PuMP· . Patent No. 178.735, of June 18, 1$7.6. to John A. Churchill, for an improvement in pump.bu.ckets; compared'with llatents granted in 1852 to one Polley, and in 1875 to J. D. Shoots, and one ili 1874 to M. D. Sennett, and other prior patents granted to Mooney, Van Duser, and ,Johnston, held not void for want of novelty.
Letters patent No. 178,785, to John A. Churchill"for an improvement in pump-buckets, held infringed by the bucket manufactured by the Goss Pump & Rubber-bucket Manufacturing CO:Qlpany.
In Equity. P;ierce &: Fisher, for complainant. West &: Bond and A. N. Waterman,for defendants.
,BLODGETT, J.' . The bill in this case seeks an inju#ction and accounting by reason .of the allegedirifringement of patent No. 178,735, granted J\me 13, 1876, to John A. for an "improvement in pumpThe patent covers an'expansible for chain-pumps, '90Qsisting of a screw-threaded bolt or link, with aloop at each end, wnereby the link is united. with other links to form a pump-chain. On this threaded link is placed a concavo-convex or bell-shaped rubber but,ton, the outer periphery of which is intended to be of about the size of ,the inner bore of the pump-tube, This rubber button is fastened to one end of the threaded link, just below the eye or loop, with the conca'Ve .
TEMPLE PUMP CO. 'II. GOSS PUMP & RUBBER-BUCKET MANUF'O 00.
surface downward; and Upon the other end of the link is screwed a metallic washer or disk of 88 to enter the concave end of the rubber, so that, by screwing this washer upward along the link into the mouth or concave part of the rubber button, the periphery of the button or bell-shaped rubber will be expanded to make it fit as closely as shall be needed against the interior of the tube, as the outer flange of the bucket is worn away by use. The longitudinal lines of the convex and concave surfaces of this bell-shaped rubber are not parallel to each other, but the convexity is considerably more than the concavity, so that the body of the rubber is thinner at the periphery or outer edge than at the central portions, although no rule is laid down or suggested as to any ratioor difference between the lines of the concave and convex surfaces. Infringement is charged of the first claim only oOhe patent, which is as follows: "(1) The combination of the grooved screw-bolt or link, A, rubber, B, and interior expanding washer, C, substantially set forth." The defenses are: (lY'rhat there is no patentable novelty in the com,. bination; and (2) that defen<;l,ants do not infringe. As to the defense of want of novelty, it appears from the proof that rubber buckets, with SOme degree of expansibility, for chain-pumps, were comparatively old at the time this inventor enterea the field. In 1852 a patent was granted to one Polley for an adjustable pump-bucket, which was simply a hollow globe of rubber, and the adjustment was obtained by pressure upon the ends of the globe, whereby it was flattened, or spread outat the center. In January, 1875,a patent was granted to J.D. Shoots for an expansible bucket for chaiI;l-pumps, which showed a rubber disk upon a link between two metal Quttons, and by screwing these buttons together pressure could be brought upon the central portion of the rubber disk so as to expand it outwardly. Patents were also grahted to Mooney and Hanlan and Van Duzer and Johnston prior to that granted to Churchill; but all of them showed the expansion to have been obtained by mere squeezing, so to speak, upon the central Portion of a rubber disk, whereby the outer portion of it was expanded. In April, 1874, a patent was gl'anted to M. D. Bennett for an expansible bucket, in which a rubber disk was shown working between convex and concave metal disks, whereby the outer periphery of the rubber disk was bent or curved downward, or released, so that it would sprin!!: upward, and thereby some degree of expansibility was obtained. There were also other expansible buckets, of which the Van Zant and Davis patents are good examples, where the expansion was obtained by a rubber disk carried upon a tapering spindle or link, and by means of a hole through the disk, and, by orowdin!!: or forcing this rubber disk further on the f1pindle, its outer periphery was to some extent expanded. I have no time to go into a minute analysis and discussion of each of these prior devices, but it is sufficient, I think, to say that Churchill seems to have been the first to so arrange his expanding devicr I\S to leave the outer rim of the bucket free, that the rubber would not become set and its. elasticity lost j it being conceded from the proof in this case
FEDERAL·· REPORTER. .
that rubber, when subjected to pressure for a. long time, becomes set or fixed in its texture, and loses'its elasticity. The Churchill device shows the Quterfl.ange of his bucket hanging over the washer in such way that ins not crampe<l or bound,bllt is free to spring inwardly or outwardly, as the size of the pump-tube requires, thereby adjusting itself readily to the inequalities ofthe pump-tube and to its own wear by use. To do this he took the old threaded link which he ,found in the art, and a. rubber button, but made the button or disk concavo-convex; that upon the upper side; and concave upon the under side, it'l:lell-shaped,-a form which had not been previously shown, -and placed withinthemollth of the rubber bell the expanding washer, which, 'on' being screwe9- up or down the link, expanded the allowed it to contract; The first claim of the patent is for these parts. !tis entirely immaterial, with regard to a the vaUdiiy of this patent, whether aU those parts were old, or whether any' of tpem were new.. If no one before this Jnventorhadmade this combination, and the combination is useful, then it is a patentable device. I do not find in the testinlonyin this case the combination of these dperative parts of this patent; As already I may find links; ;1 may find It metal washer; and I may find a rubber disk; bilt '1' do not find a bell-shaped: rubber or concavO-convex rubber disk; nor do I find an expanding washer, combined to operate with a threaded,link as these parts are made to operate in the Churchill patent. It urged with much tenacity tiD the part of the defense that, under the 'Churchill patent, there must.be not only the concavo-convex rubber, but it must have a drip-hole near the periphery; and there must also be a hole or holes through thewasher;to allow the escape of the drip-water. It is true that he describes these in the rubber and the washer, but it !'Ieems to me that he had the right to claim:also the combination of tqe thi'ee parts without these drip-holes. I therefore conclude that the defense of want of novelty must faiL As to .thequesti'on of infringement, I find in the defendant's bucket the threaded link, the bell-shaped rubber, and the metallic washer, all combined and operating precisely as they operate in the Churchill patent, 'although in some of the defendants' later buckets the bell-shaped rubber is so constructed that the washer may be screwed downwards upon the link, instead of upward, for the purpose of expanding the bucket. This I do hot consider anything but a colorperiphery of able change; as it, makes no diffetence, it seems to me, in which direction the expanding washer is moved in order to operate as an expander. It is also by the defendants that the Churchill patent was practically worthless; or would have 'been practically inoperative, from the factthatnoprovision was made fo:dastening the rubber to the link, and that for want of such fastening the rUbbers soon become loose, and turn upon'the link; and it is also .insisted that the washers, as well as the rubbers,were liable to work loose; under the construction given in the Churchill patent, by coming in contact with the forks of the reel as the pump was worked. There is a conflict in the testimony upon this quee-
TEMPLE PUMP CO. tI. GOBS PQMP & RUBBER-BUCKET HANUF'G CO.
tion, which I donot deem it necessary to settle for the purposes ofthis case, as it :;looms very clear: to me that Churchill, and any person who used the Churchill patent, was at liberty, if it was found necessary to do so, to fasten the rubber by}tny of the well-knowp mechl,lnical methods, such as a pin passing throl1ghit, or making' the part of the link which was covered by the square or triangular, or of any such irregular shape ,as would prevent the rubber from turning on it; and the same may be said ofthe washer. There were modes by which the washer could be prevented from turning if it was found desirable to do so. It is also contended that tbe defendant does n9t infringe the Churchill patent, because his rubber is firmly fastened to the neck of the link by projections or nibs which enter a slot or recess in the rubber, and hold it frointuming, and that tM itlterior of the washer is beveled, so it will notturn by catching in the reel-forks. At most, all that can be said in reference to these differences between the defendants' and Churchill's patents is that the defendants have improved upon the Churchill patent to some extent. Whether their improvements are such aswiU sustain the patents under which defendants are working, it is not necessary here to inquire into or pass up<>n. 1 am clear,however, that the defendants do use and infringe the first claim of the Churchill patent. Much discussion was also had at,the hearing as to whether the rubber button shown in the Churchill model and drawings is technically Cbncavo-convex in form. I do not find' in any of the dictionaries or,works on mechanics a definition of. the compound term "concavo-convex." I find definitiOlls of a concavo-convex lens, and a concavo-convex file, but I find nothing defining or fixing the form or relations of the lines of a body in order to entitle it to be described as concavo-convex. I think it is enough, for the purposes of this case, to say that Churchill intended to use a rubber button or bucket, (and I use the word "button" because this bucket takes the plaoe of the old metal disks or buttons which were formerly used on pUJ:D.P-chains,) one side of which should be convex and the other concave. The degree of concavity and of convexity is not defined or described in express terms, but the general form which he intended to describe is undoubtedly shown in his drawings; but I do not think that Churchill intended. to limit hiU1selfto just the degree of concavity or convexity shown in his drawings. A reasonable latitude, it seems to me, is allowable in the practical construction of buckets under this, as under all other,. patents. , The degree of convexity and of concavity must be left to the practical experience and judgment of the con·structor. The concavity of the defendants' buttons is greater than that shown in the drawing of the Churchill patent. In fact, while the interior of the. Goss buttons is concave, the material at the flange is made thicker, so that,by screwing the expanding plate downward on the link, it operates.to expand the periphery of the button; but, as I have already said, the change in the interior form of the rubber does not escapl? +he patent. A deqre,e' may be entered finding that the defendants Infringe) and awarding an accounting.
KAOLATYPE ,ENGRAVING CO. and another v. HOKE and another·
.<pircuit Oourt, E.
The patentability of the thing patented is ilOt admitted by a demurrer to a bill for infringement, alleging·that the patentee was the :first inventor.
BILtr-PATlllNTAlHLITY NOT ADMITTED.
Where, il):a suit for the ofa patent against H.and M., it was alleged that the defendants were Qusiness under the name of the H. E. Co., and that H.and M. had infringed since July 14, 1874,and on divers tImes and occasic!>DS between that time and the time of filing the bill of neld,that Jtstlfficiently appelU'eq: tllP,t the defendants had been jointlyen. gaged in tlle alleged acts of
"An alle&,ation in a bill filed October, 1886, that the defendants have infringed "since July 14,1874; and on divers times and occasions between that time and the time of filing tIle Qf, complaint," does not show such a continuous use of the invention for'such,period as to bar all relief.
5. SAME-JuDICUT. NOTICE-DEM'cJRltllllt'
Whe1'8; in a suit for the infringement of a patent, a copy of the specification is made ,a part of the bill,th,e plttent may be declared void on demurrer, if facts"f which the court is qound to take judicial notice clearly show want of inventioJi in the subject-mfLtter of the patent. '
6. EVIDENcE:--"JUDICIAL NOTIOE-DICTIONARmS A.N1) CYCLOPEDIAS. JUdicial'notice will not be taktllioffacts stated in encyclopedias, dictionaries, or other publications; unless, they are of such universal notoriety and 80 generally understood that they may be regarded as, ,forming part of the common knowledge of every person. '
In Equity. .Dn demurrer to bill., , ". This isasuit brought October, 1886, against Jos'eph W. Hoke and Charles D. :Moody, to restrain the alleged infringement ;of letters patent No. 153,084, granted July 14, 1874, 'to Maurice Joyce,for an ment in processes of producing metal plates for printing, etc. The bill alleges that Mr. Joyce Wl1s' the first inventotoi the improvement described in st;tid patentj that the defendants are Hdoing business under the name of the Hoke Engraving'C6mpanyj" l1nd "that since the fourteenth day of July, 1874, and on divers times and occasions between that time and the time of filing this, your orators', bill of complaint, the defendants herein, Joseph W. Hoke and Charles D. Moody, in the citJC ofSt. Louis, inthe Eastern distpctof Missouri, * * * have made, used, andsold,andcaused to be made, used, and sold, and are now making, using, ltnd selling, large numbers of plates produced by the process shown,descrfbed, and claimed','ii). the aforesaid letters patent." The Kaolatype Erigraving Company; sues as' assignee of the patent, and the other defendant as licensee of the Kaolatype Engraving Comyany. The assignment oqhe patent is alleged to have been executed February 11, 1880, but no assignment of any right of action is alleged to have been made.