structed, and that both verdicts were properly rendered. If the court below refused upon 'request to give instructions appropriate to the case before' it, the petitioner's remedy was by bill of exceptions and writ of ettor. 'The case, in niy judgtnent,is within the principle of Ex parte Bigelow, 113 U. S. 328, 5 Sup. Ct. Rep. 542, and Ex parte Harding, 120 U. S. 782, 7 Sup. Ct. Rep. 780,and not within of In re Snaw, BUpr<Ji; See, also, Ex parte WilsOn, 114 U. S. 417, 5 Sup. Ct. Rep. 935. The case cannot be retried :upon habeas corpUfJ.
!. . .
York. April 12, 1887.)
The la,w of copyright onlyreQ.lJires a, subsequent compiler of a directory to do for pimsel.f that which the firstfompUer has done. Whel'ethe oommercial value of two society directories depends upon the judgment Qf the allthors in the selection of names of persons of a certain social standing, each directory is original to the extent that the selection is originaL""
3. SAME-ORIGINAL SELECTION.
Where the compiler of such directory uses a previolls directory of the same character, to, save himself the trouble ofm,aking all independent selection of , 'the persons listed, though only to a \'ery limited extent, he infringes the first '" compHer's'copyright. " 4. SAME; , Tl:1e.;lltter compiler may the first qompiler's book for the pllrpose of verifyin,g, the orthography of the names, or the correctness of the aqdresses, of the persons ",i' ' ,
6. SAlIm-EVIDBNOE-<:JOMMON' ERRORS. ,:) ,
the cOlppilation ,CIf, two !\i-milar books,a. close resemblance is the necessarY' consequence of tbe llae, of common materials, the existence, of the same,errorl!ln the two publicatioI1sis a presumption'of piracy that can only , be ove1"tt>tneby clear eVidence to, the contrary. The injunction to the infringement of one directory by another is limited to the. extent to which ihev are identical.
In Bill for injunction to restrain infringement of complainant's copyright. Wallace MacFwrland, for complainant. Edrnund i 'Wetm,ore, for defendant.
WALLACE, J. The parties are the proprietors and publishers of rival "society"directories, which purport to give the names and addresses of those persons in New York city who are supposed to be people of fashion. Tpe pomplainant asserts that its copyrighted directory, "The List,)l byr:the defendant's directory, the "Social Register," and has made a mptidn fora preliminary injunction. The question in the case is whether the defendant, in compiling:his directory, has done so by his own'origind>labor, or whether, in order to spare himself time and
LIST. PUB. CO. V. KELLER.
pense,p¢ has copied the names and addresses given in the Social Register from the List. If he has copied any part of the complainant's book, he has infringed the copyright. He has no right to take, for the purposes of a rival publication, the results of the labor and expense incurred by the complainant, and thereby saye himself the labor and expense of work· ing out and arriving at these results by some independent road. MO'f'I"iI. v. Ashbee, L. R. 7 Eq. 34. It was held in Kelly v. Morris, L. R. 1 Eq. 697, where the publication in controversy was a general directory, that the only legitimate use which a subsequent compiler can make of a copyrighted directory already published is for the purpose of verifying the correctness of the results reached by his own independent efforts in obtaining information. In the latter case of Morris v. Wright, L. R. 5 Oh. App. 279, it was held that. the subsequent compiler can use a directory previously published for the purpose of directing himself to the persons from whom such information is obtained. No compiler of a book such as directories, guide-books, road-books, statistical tables, can acquire, by a copyright, a monopoly of the matter published; but the subsequent compiler must investigate for himself from the original sources of information which are open to all. It has been said that, in the case of a road-book, he must count the mile-stonee for himself, and in the case of a map of a newly-discovered island he must go through the whole process of triangulation, just as if he had never seen any former map; and, generally, he is not entitled to take one word of the information previously published without independently working out the matter for himself, and the only use he can legitimately make of a previous publication is to verify his own calculations and results when obtained. It is not necessary to adopt this statement unqualifiedly, but itissafe to say that the compiler of a general directory is not at to copy any part, however small, of a previous directory, to save himself the trouble of collecting the materials from original sources. Otherwise, as the matter of rival publications of this kind is identical, there would be practically no copyright in such a book. It is not necessary or reasonable to apply so strict a rule to publications like the present. rrhey are designed to provide a catalogue, in convenient form, of the names and addresses of a selected class of eligible persons. They are original to the extent that the selection is original. Their commercial value depends upon the jurlgment and knowledge of the author respecting the social standing and society relations of 11 limited class of the general public. When the selection is made, each compiler must of necessity reproduce the same names and addresses, so far as the selections coincide, and must arrange them in alphabetical order. The law of copyright only requires the subsequent compiler to do for himself that which the first compiler has done. The same sources of original information are open to each. Either of the present parties could lawfully: use the general city directory to obtain the correct addresses of the selected persons; nor is it doubted that the defendant had
the right to use the complainant's book for the purpOse of verifying the orthography of the names, or the correctness of the addresses, of the persons selected. But if the defendant has used the List to save himself the trouble of making an independent selection or classification of the persons whose names ,appear in the Social Register, although he may have done so only to a very limited extent, he has infringed the complainant's copyright. In a case like this, when a: close resemblance is the necessary consequence of the use of common' materials, the existence of the same errors in the two publications affords one of the surest tests of copying. The improbability that both compilers would have made the same mistakes, if both had derived their information from independent sources, suggests such a cogent presumption of copying by the later compiler from the first that it can be overcome only by Clear evidence to the contrary. frIawman v. Tegg, 2 Russ. 393; :Spiers v. Brown, 31 Law T. 16; Lawrence v. Dana, 2 Amer. Law T. (N. S.) 402. The complainant relies UPOIl this criterion here. The List contains a selection of about 6,000 names and addresses of persons residing in New York city out of the 313,000 names which appear in the general cily directory. The Social Register contains about 3,500 names and addresses of persons residing in New York city, and of this number over 2,800 appearin the List. The fact that 2,800 of the names and addresses in the defendant's book originally appeared in the complainant's book would, standing alone, be quite inconclusive. But when it is shown that 39 errors in complainant's book, consisting of misprints, erroneous addresses, insertion of names of persons who never existed, and insertions of names of deceased persons, are reproduced in the defendant's book, although it was not published until more than a year after the complaina strong presumptive case of piracy is made ant's book was out. . The depositions on the part of the defendant are addressed in part to an explanation of his reproduction of these errors consistently with the theory that they were not copied from the complainant's book. These depositions have been carefully read and considered,and the conclusion has been reluctantly reached that the explanation is inadequate. It will not be profitable to analyze the depositions. It suffices to state that the case for the complainant is such as to call for a full and explicit vindication on the part of the defendant. If it is true that his directory was prepared from several private visiting lists furnished to Ashmore for the purpose, these lists should have been produced or their non-production accounted for; and, if they could not be produced, corroborative testimony of their existence, the sources from which they were obtained, and their contents should have been adduced. It maybe that the presumption which at present must prevail will be overthrown by the proofs at the final hearing of the cause, but. as the case now appears, the complainant is entitled to an injunction. The injunction will be limited to the extent to which the defendant's book is identical with the complainant's book.
INTERNATIONAL TOOTH CROWN CO. TOOTH CROWN Co.
RICHMOND and others.
(Oireuit Oourt, D. Oonnecticut. February 21, 1887.)
PATENTS FOR INvENTIONS-PATENTABILITy-INvENTION.
. . An improved method of inserting and supporting artificial teeth, whereby former unsuccessful methods are altered, and a successful form of attachment supplied, is an invention a patent for which will be sustained, althoue;h the former methods, and the failure of the same, may have pointed out the way, and been utilized for perfecting the improvement. Where an application for a patent is refused, and a controversy thereupon ensues with the officials of the patent-office with respect to the same, in which the examiner suggests that instead of a reconsideration, and approval of an amended application, a new application be made, with certain 1I100difications, and a new application is accordingly filed, differing from the first in the omission of·superftuous matter, and changing tb,e description in some particulars, and a patent is thereupon granted, such new application will be as a more convenient way of prosecuting the first. and the two considered as parts of a continuous proceeding. Hence the allegation of two years' public use in contesting the patent will be referred to the date of the first application, and not the second. Where a method of making and inserting artificial tooth crowns is practiced and demonstrated for years, a mere mechanical change in such method, which has no patentable novelty in itself, is not an invention for which a patent will be sustained.
In Equity. Bill for injunction to restrain infringement of letters patent, and for accounting. Dickerson Dickerson, for complainants. J. Kimberly Beach and S. J. Gordon, for defendants. Before WALLACE and SHIPMAN, JJ·
to improvements in the dental art, all of which are alleged to be infringed by the defendants. This suit is brought for an injunction and accounting. Thefitst of the patents in snit was granted to James E. Low, March 15, 1881, upon 'an application filed December 20, 1880. The
subject is an improvement in dentistry, whereby artificial dental surfaces may be permanently fixed in the mouth in place of lost teeth, without the use of plates or other means of deriving support from the gum beneath the artificial dentition. The patentee refers in his specification to the pre-existing state of the art as follows: "Heretofore artificial teeth have invariably been supported entirely by the gum, and usually upon a plate fitted to the gum, and, in the case of upper teeth, to the roof of the mouth. Clasps or attachments to the adjacent teeth have been employed for the lower jaw to retain thj3 artificial teeth 111 proper relation to the adjacent teeth, but said attachments have never been designed or adapted to sustain the pressure upon the artificial teeth in mastication without aid from the gum. The use of plates or other methods of supporting the artificial teeth by the gum is highly objectionable, because-Fi?'st, they necessarily cover the cutaneous surfaces which health reqUires should be uncovered; second, they occupy a space within the mouth, and are uncomfortable;
The 'complainant is the owner of four patents, relating