I am rather inclined to think that he was not aware of it. He does not seem to have paid much attention to the progress of the application for that patent, and it appears that he even made some objections to the expenditures that were being made in the way of experiments, with a view of improvements upon the machine. He does not seem to have visited the office of the persons who were soliciting this patent more than twice in seven or eight months, and the evidence, as I take it, rather tends to show that he was satisfied with the form of charger that was descri1:>ed in the original specifications for patent No. 49, and that he did not pay much attention to, or take much interest in, complainant's efforts to improve the device. But, be this as it may, I think the point of the motion is answered by the fact found, that the charger described in patent No. 50 is an entirely different piece of mechanism from that described in the original specifications for patent No. 49, and that it was invented subsequent to the application for the original patent, and that it was solely the invention of the complainant. I cannot find any testimony in the record will suffice to estop the complainant from insisting upon his rights under the patent No. 50, even as against this defendant, unless it be that the partnership between the two parties was of such character that, under and by virtue of the same, the defendant became entitled to alHhe improvements that were made 'on the machine as originally conceived during the pendency of the partnership. As I stated the other day in deciding the case, that defense is not pleaded, and t1].e court can take no notice of it. The motion for So rehearing will therefore be denied.
AMERICAN CLAy-BmD Co. v. LIGOWSKI CLAy-PIGEON Co. LIGOWSKI, CLAy-PIGEON CO. v. AMERICAN CLAy-BIRD Bill.) SAME 'D. SAME. (No. 3,729.)
(No. 3,728.) 00. (Cross-
(Circuit Court, S. D. Ohio, lV, D, 1887.)
PATENTS FOR INvEN1.'IONS-NoVELTY-" CLAY PIGEONS" on; "FLYING TARGETS. "
the" target "is slotted at or nearits peri phery, and provided with a detachable tongue. A later patent to LigoW"ski (letters patent No: 246,401, of August 80,1881) did away with the slot or' groove, and attached a tongue, by glue or cement" to the exterior of the periphery. Held that, considering the state of the art of furnishing for marksmen a substitute for live birds, in 1880 and 1881, the "target" eould not have been thrown from traps as then made without the detachable tongue, and that the patents of 1883 and 1885 were void for want of novelty, being anticipated bY those of 1880 and 1881.
The "flying target" covered by letters patent No. 231,919,' of September 7, 1880, to LigoW'ski, is of the same kind of material, and of the same shape, as those covered by letters patent No. 281,183, of July 10. 1883, to Nicholas Fischer, and letters patent No. 311,768, of February 3, 1885, to the LigoW'ski Clay-Pigeon Company, The only difference is that under the patent of 1880
SAME-SUITS TOUCHING INTERFERENCES.
The fact that the plaintiff to a suit under Rev. St. U. S, § 4918, providing for suits touching interfering patents, is not entitled to adecree for infringe-
AMERICAN CLAY-BIRD CO. V. LIGOWSKI CLAY-PIGEON 00.
ment because the patent set up by his bill is anticipated by his own prior patents,does not prevent the court from decreeing that the defendant's patent is void, as being anticipated by those patents. Under the statute, the court is limited to the question of priority between the interfering patents. It may declare either, but cannot declare both, void.
Although where a bill is filed under Rev. St. U. S: § 4918, providing for lUlits touching interfering patents, affirmative relief may be granted the defendantwithout the :filing of a cross-bill, yet, if counsel choose to tile such a bill,thev have the right to do so.
In Equity. . L. M. Hosea, for American Clay-Bird Co. ParkinaGn« Parkinaon, for Ligowski Clay-Pigeon Co.
SAGE, J. The American Clay-Bird Company brings its suit under section 4918. Rev. St. U. S., against the Ligowski Clay-Pigeon Company, claiming priority of right for patent No. 281,183, granted Nicholas Fischer, July 10, 1883, for flying target, and assigned to the American Clay-Bird Company, over patent No. 311,768, granted February 3, 1885, to the Ligowski Clay-Pigeon Company, for 'the same subjectmatter. This is suit No. 3,728. A cross-bill was filed, claiming ority for patent No. 311,768, and praying that patent No. 281,183 be adjudged and declared void. A motion to strike this cross-bill from the files was overruled, notwithstanding Lockwood v. Oleaveland,6 Fed. Rep. 721, for the reason that the provision of section 4918 is that the court may adjudge and declare either of the patent.'! void in whole or in part, "on notice to adverse parties, and other due proceedings had according to the course of equity i" and the defendant seeks affirmative relief; and although in this case that relief might, under the statute, be afforded without the filing of a cross-bill,-that is, as was held in Lockwood v. Olea.veland, that a cross-bill is not necessary,-the circuit judge and the district judge concurred in the opinion that if counsel chose to file it they had the,right to do so. No. 3,729, JAgoU'ski Olay-Pigeon 00. v. American Clay-Bird 00., is a suit for infringement of No. 311,768, the patent set up in the cross-bill above referred to. These. causes were heard together. Before these suits were brought there had been an interference in the patent-office between Fischer and Ligowski, which was determined in favor of the Ligowski patent, and the parties to these suits were parties to that controversy. The description and claims of the two patents in controversy are substantially identical, the claims in the Ligowski patent being: "(1) A saucer or cup-shaped flying target, formed as a thin shell of clay or similar material, suitably hardened, without slot, tongue, or projection, substantiallyas and for the purpose specified, as a new article of manufacture; (2) a saucer or cup-shaped flying target, having a peripheral flange of uniform thickness circumferentially, and without slot or tongue, or provision for the attachment of a tongue or extraneous or special handle for propulsion, which might constitute an impediment to the axial rotation of the target, substantially as specified." . Those of the Fischer patent are:
"(I) A cylindrical. cup-shaped flying target, formed as a thin shell of clay or similar material. suitably hardened, without slot, tongue, or protection, substantially as and for the purpose specified, as a new article of manufacture; (2) acylindrical, cup-shaped flying target, A, having a peripheral flange of uniform thicknesscircumferentially, and without slot or tongue, or proVision for attachment of tongue or handle for propulsion, or which might constitute an impediment to the axial rotation of the target, substantially as specified. " There never was a more complete case for an interference; but, to make it still more interesting, a patent was granted to Ligowski on the seventh of September, 1880, more than two years and eight months prior to the application for Fischer's patent, the earliest of the interfering patents, for a flying target not differing in any essential particular from those described and claimed in the interferirigpatents. It was of the same kind of material, of the same shape, and the only difference is that it was slotted at or near its periphery, and provided with a detachable tongue, without which, in the then state of the art of furnishing for marksmenasubstitutefor live bilds, it could not have been thrown from a. trap, and it was particularly worthless for the purpose specified, if thrown by hand. There were two claims in this patent,-one for the combination of the tongue and the target, and the other for the target itself. A patent for an improvement on the invention described and claimed in Ligowski's patent of September 7, 1880, was granted to him August 30, 1881, which describes the same target, without any slot or groove, and having a tongue attached by glue or cement to the exterior of the periphery. The claim is only for the tongue, and its attachment to the target. The court is limited, in causes brought under section 4918, to the question of priority between the interfering patents. It may declare either, but cannot declare both, void. Pentlarge v. Pentlarge, 19 Fed. Rep. 817; Lockwood v. Cleveland, 20 Fed. Rep. 164. The finding of the court is that Ligowski was the first to make the device covered by the patents. If it be said that he was anticipated by his own patents of September 7,1880, and August 30, 1881, the ,answer is that Fischer was also so anticipated. A decree will be entered declaring and adjudging Fischer's patent, No. 281,183, void. Upon the cause for infringement of patent No. 311,768, (the Ligowski patent,) the court finds that it is anticipated by the patents before referred to, being No. 231,919, dated September 7, 1880, and patent No. 246,401, dated August 30, 1881; and the bill is dismissed, at the r.osts of the complainant.
CINCINNATI ICE-MACHINE CO.
CINCINNATI ICE-MACHINE CO. v. FOSS-SCHNEIDER BREWING CO.
Ohio, lv. D. June 2,1887.)
PA1 ENTS FOR INVENTIONS-INFRINGEMENT-IcE-MACHINES.
Letters patent No. 148.675. of March 17, 1874, to Francis V. De Coppet, for device for automatically lubricating an ammonia pump or compressor used in refrigerating or in manufacturing ice. considered, and held infringed as to its second claim by the Linde ice-machine, covered by letters patent No. 228,· 864. to one Linoe.
In Equity. Bill for injunction to restrain infringement of letters patent and for' an account. Stem Jd Peck and Arthur Stem, for complainant. Dyrenjorth & Dyrenjorth, for defendants. SAGE, J. This suit is for infringement of letters patent No. 148,675, granted March 17. 1874, to Francis V. De Coppet, for an improvement in ice-machines, and assigned to complainant. There are five claims in the patent, uut at the hearing the complainant withdrew the charge of infringement as to all except the second and fourth, and they only will be considered. The patent is for a device for automatically lubricating -an ammonia pump or compressor used in refrigerating, or in manufacturing ice. The patentee states in his specifications that "the ammoniacal vapors are drawn by the pump from the refrigerating vessel through the pipe, G, [the induction-pipe extending upward vertically from the pump,] and are exhausted into the coil of the condenser, D, through the pipe, H. The piston of the pump is supplied with the lubricant from the closed cup, S, attached to the induction-pipe, G, between the pump and the stop-cock, 0'. The lubricant passes through the valves into the barrel or cylindtlr of the pump, and any surplus is discharged therefrom, through the exhaust-pipe, H, into the trap, E, which is connected by a dip-pipe, e, with the induction-pipe, G." When it reaches the trap, it falls by gravity to the bottom of the trap, "the ammoniacal vapor continuing on to the compression coil, for compression to liquefaction. To return the glycerine back again to the piston packing valves and seats continually, and without loss of the ammoniacal vapor or glycerine, open the cock," which is just above the trap, "on the small pipe, e, and the pressure on the surface of the glycerine in the trap will force it through the small pipe, e, e, into the induction-pipe, G, and from thence as before described; and, when the glycerine becomes deteriorated by absorbing moisture from the ammoniacal vapors, it can be drawn off at cock, P," which is at the bottom of the trap, "for purification, and nse again." The piston-rod of the pump "is 'lubricated from the covered cup, Z, which is attached to the stuffing-box of the head of the pump cylinder, and is also in communication through a pipe, 0', with the induction pipe, G."