TEMpLE PUMP CO. ". Goss PUMP & RUBBER BUCKET MANUF'a Co.
(Oircuit Oourt, No D. fllinoia.
May 16, 1887.)
PATENTS FOR INVENTIONS-IMPROVEMENT IN PUMP BUCKETS-INFRINGEMENTCONTEMPT.
Pierce FWher, for complainant. A. N. Waterman Bond, for defendant.
BLODGETT, J. This is an application for an attachment for contempt against the defendant, Sanford A. Goss, for violation of the perpetual injunction contained in the interlooutory decree in this case. (See Temple Pwrnp Co. v. G088 Pump Rubber Bucket Manufg Co., 30 Fed. Rep. 440.) The original decree found that the defendants infringed the first claim of the Churchill patent, which is: "(1) The combination of the grooved screw-bolt or link, A, the concave-convex rubber, D, and interior expanding washer, C, substantially as set forth." Since the entry of that decree, the defendant, Goss, has continued the manufacture of rubber buckets for chain pumps; but has used what he calls a solid screw-bolt instead of a grooved screw-bolt, as called for by the first claim of the complainant's patent; and the only question in the case is whether the first claim of the Churchill patent is to be limited to a screw-bolt with one or more longitudinal grooves in it. In his specifications Churchill says: "A represents a bolt or link, formed with exterior screw-threads as shown; also with one or more longitudinal groove8 or channels." And the first claim, as already stated, is for the "combination of the grooved screw-. bolt or link, A, with," etc. While I can see no necessity in the state of the art, or in the nature of the invention covered by this Churchill patEmt, for the patentee to have limited himself to a grooved screw-bolt or link, at the same time I must say that it seems to me very clear that he has done so. The proof in. this case shows that solid and grooved screwbolts were both known in the prior art; and undoubtedly, as this is a combination patent, the complainant might have provided that the screwbolts might be either solid or grooved, as the person using the patent should elect; but he saw fit to describe a grooved screw-bolt, and to claim a grooved screw-bolt as a part of his combination, and it seems to me, therefore, that he is limited to a grooved screw-bolt as an element in his patent. It is true that the groove, which is really intended as a driphole for the escape of the water when the chain comes to a rest, is not
TEMPLE PUMP CO. 11. GOSS PUMP & RUBBER BUCKET MANUF'a 00.
an essential part of Churchill's invention, as construed upon the final hearing of this case; but, as he chose to describe only a grooved screwbolt, perhaps unnecessarily, he must be limited, it seems to me, to that specific element in his combination. In White v. Dunbar, 119 U. S. 47,7 Sup. Ct. Rep. 72, the supreme court says: "Some persons seem to suppose that a claim in a patent is like a nose of wax, which may be turned and twisted in any direction, by merely referring to the specifications, so as to make it include something more than, or something different from, what its words express. The context may undoubtedly be resorted to, and often is resorted to, for the purpose of better understanding the meaning of the claim, but not for the purpose of changing it, and making it different from what it is. The claim is a statutory requirement, prescribed for the very purpose of making the patentee define exactly what his invention is; and it is unjust to the public, as well as an evasion of the law, to construe it in a manner different from the plain import of its terms. This has been so often expressed in the opinions of this court that it is unnecessary to pursue the subject further." In view, therefore, oftha possible, if not necessary, limitation of the complainant's patent to a grooved screw-bolt as an essential part of the combination covered by his first claim, it seems to me that the court should not, in a proceeding for contempt, attempt to try the question whether this bucket, with a solid screw-bolt, is or is not an infringement of the complainant's patent; but the complainant, if it wishes to test that question, must bring an original suit for infringement of this patent by the use of this solid link; and where the defendant would be entitled to an appeal instead of attempting to have this question of infringement determined in a proceeding for contempt. The rule for an attachment is therefore discharged, without prejudice to any suit which the complainant may bring for the purpose of testing the question of infringement involved in this motion.
HAT-SWEAT MANUF'G QO. '/). DAVIS SEWING-MACHINE
(District Oourt, 8. D. New York, JUIl,e 2, 1887.)
PAT1!:NTSFOR INvENTIONS-PENALTms-STAMPING WITHOUTLICENSE-FoB. EIGN CORPORATION-SERVICE.
Service upon a foteigticorporation,madein NewYoi'k upon a "managing agent, "is a valid service on the corporation, under the state law, as upon a persoN. "found" within the. district;
In a local action for penalties for stamping articles as patented, without license, recoverable ol;lly in the district where the stamping is don.e, an agent of a foreign corporation who has 'the general management and control within the district of the manufacturing· business in the course of which the stamping is done, is a "managing agent" of the corporation, within the meaning of section 482 of the New York Code of Civil Procedure, and service upon him is a valid service upon the corporation.
'Motion to Set Aside Service of Process. John R. Bennett, for Wetnwre &: Jenner, for defendants.
BROWN, J. 'fhis is an action for the recovery of $100,000 penalties alleged to have been incurred under section 4901 of the United States Revised Statutes for stamping·certain patented articles without the plaintiffs'license. Such actions are required by section 4901 to be brought in the district "within whose jurisdiction such offenses may have been committed." The act of stamping being done within the Southern district of New York, the suit could not be prosecuted in any other district. Penilarge v. Kirby, 19 Fed. Rep. 501; affirmed, 20 Fed. Rep. 898, 22 Blatchf. 261. The defendant corporation belongs in Connecticut, where all its officers reside., The process in this cause was served upon Alvin B. Felt, as agent of the defendant company. The company appears specially for the purpose only of moving to set aside the service of the summons as a service upon the company, on the ground that Felt is neither an officer nor a "managing agent" of the company, within the meaning of section 432 of the New York Code of Civil Procedure, which prescribes the mode of serving process upon foreign corporations. For the defendants it is claimed that the provisions of the state statute control, because section 914. Rev. St. U. S., declares that "the practice, pleadings, and forms and mode of proceeding. etc., shall conform as near as may be" to the state practice. In the case of Lung Chung v. Northern Pacific, etc., Co., 19 Fed. Rep. 254, it was held by DEADY, J., that the provisions of the state law, as to the sufficiency of the service of process, were embraced by this section. For the defendant it is insisted that Felt is not a "managing agent" of the defendant company, because he has no special authority to accept the service of the summons, and is not a general representative of the company. His relations to the company are stated in his own affidavit as follows: