MAY f1.00UNTY OF RALLS.
exclusive is to the manufacture, use, and sale of his invention, and for any and all purposes. Let a decree be entered for the complainant upon the second claim of his patent, for an inj unction and account, and for the defendant upon . the remaining claims.
MAY". CoUNTY OF
SAME". COUNTY OF JEFFERSON. COUEry OF ST. GENEVIEVE.
(Circuit Oourt, E. D. Mi8aouri, E. D. June 4,1887.)
PATENTS FOR INVENTIONs-INFRINGEMENT BY CoUNTY.
Under Rev. St. U. s. § 4919, which provides that "damages for the Infrinp;ement of any patent may be recovered by an action on the case, » a county of the state of Missouri may be sued at law for the infringement of a patent.! A state statute of limitation cannot, even in the absence of any federal statute, be pleaded in bar of an action at law for the infringement of a patent.
SAME-STATE STATUTE OF LIMITATION.
At Law. Demurrer to petition. Gwrge H. Knight, for plaintiff. George D. Reynolds and Hough, Overall k J'IJAhon, for defendants.
THAYER, J., (orally.) These cases are actions at law for infringement of letters patent. The demurrer on file in each case raises two questions. The first question is whether a state statute of limitations (in the absence of any federal statute of limitations) may be invoked in bar of an action of this nature. There have been diverse rulings upon the question in various circuit courts of the United States, but the question haa never been authoritatively passed upon by the supreme court of the United States. By an actual count, there are five cases holding the affirmative of the proposition, while there are ten holding the negative. Without any reference to the mere number of cases, I think that the weightofreason is with the decisions holding the negative ofthe proposition, viz., that a state statute of limitations cannot be pleaded in bar of actions of this character. I rest my conclusion mainly on the ground that actions of this sort are purely statutory, and are created by the laws of the United States, and are exclusively cognizable in the federal courts. A state statute of limitations, in my opinion, can have no application to actions so created and so cognizable, even in the absence of any federal statute on the subject. The first question is therefore answered in the negative. The second question is whether a county of the state of Missouri can ,be sued at law for the infringement of letters patent. 4919 of
-of Juneau, 30 Fed. Rep. 241, and note.
the liability of a connty for infringement of a patent, see Mal v. Count,
Revised Statutes of United States provides that "damages for the infdngement of any patent may be recovered by an action on the case in the Bame of the party interested." It is insisted that counties of this state are political subdivisions of the state, and not ordinary municipal corporations; that, under the laws of this state, counties can only be sued for the enforcement of contracts which they are expressly authorized to make, and have made; that they have not been made liable to suits in form ex delicto; and therefore that an action at law for the infringement of It patent, which action sounds in tort, and is denominated in the statute" an action on the case," cannot be maintained. It is very well settled in this state, as all lawyers know, that counties are not liable for acts of omission on the part of county officials; as, for instance, for failure to keep roads and bridges or public buildings in repair and in· a safe condition, and, for injuries susta.inedin consequenc& of such neglect on the part ofcounty officials, a suit is not maintainable against It county. It has also been held, under certain local statutes which prevail in this state, that counties of this state cannot be held as upon an implied assumpsit for services rendered in their. behalf which have proven beneficial, and have been accepted. So much may be conceded; but the concession so made does not meet the question raised by this demurrer. Congress has exclusive control over the grant of letters patent, and may authorize suits for infringement to be brought in such form, and against such persons or corporations, as it deems expedient. It could not authorize a suit for infringement to be brought under the eleventh amendment of the constitution, but against a no reason is perceived why it may not authorize a suit against a quasi municipal corporation, like a county, has been created by a law of the state, and under state laws may be sued for certain purposes, no matter what maybe the peculiar policy of the state with reference to relieving counties there;n from liability for acts of non-feasance of county officials. A state cannot exempt counties from liability for infringement of letters patent, because e:x;clusive jurisdiction over that subject-matter .has been vested in the federal government. By section 4919, above referredto, suits at law have been authorized in the form of case for the infringement of letters patent. No exception has been made by act of congress in favor of any wrong-doer. The provision is general in its terms, and may as well include counties as other corporations or individuals. The power of congress to authorize suits of this particular kind to be brought against counties is, in my judgment, ample. Why should it be held, then, that counties are not within the purview of section 4919, ffUpra, but are exempt from such suits,even though they have been guilty of acts of infringements? A patent is personal property. A county has the physical power to appropriate such property. If it does so wrongfully, why should· it be exempt from liability any more than an indi-· vidual? As was said in Marsh v. Fulton, 10 Wall. 676, (and alluded to in the case of May v. Commissioners of Logan Co., 30 Fed. Rep. 258, 259:) "The obligation to do justice rests upon all persons, natural and artificial;
ARCHER V. ARND.
and, if a county obtains the money or property of others without authority oflaw, the law, independent of any statute, will compel restitution or compensation." :My conclusion (in common with that of several other courts in which a similar question has arisen) is that counties in this state are subject to actions of this character. The demurrers in the three cases will be overruled.
ARCHER ". ARND
«(}jreuit Oourt, E. D. Missouri, E. D. June 20, 1887.' 1.
PATENTS FOR INvENTIONS-ScOPE OIl' PATENT-COMBINATION OIl' OLD DBVICES·-MECHAl'lICAL EQUIVALENTS.
Patent No. 102,688, reissued as No. 7,320, relating to barbers' and dental chairs, containing seven elements, all of them old, in combination, held, that the doctrine of mechanical equivalents must be restricted within reasonable liniits, and that defendants, who were manufacturing under no patent, and who used two elements which were not equivalent to the devices of the plaintiff, did not infringe his patent. The reissued patent No. 7,320 is void, as having been issued more than six years after the original issue, and as intended to cover separatll elements of the combination, and thereby broaden the terms of the original grant. In such a case an application for dismissal without prejudice, as to one of the defendant manufacturers. was denied.
SAME-DISMISSAL WITHOUT PREJUDIOE.
In Equity. The patent litigated in this case was issued May 3, 1870, to Michael Leidecker, of Rochester, New York, under No. 102,688, and reissued to Leidecker, September 26, 1876, under No.7 ,320. The patent related to barbers' and dental chairs. The second claim of the patent sued on, the only one held to be infringed, reads: "(2) The toothedblock, C, arm, D, spring or springs, K, toggle-arms, E, G, shaft, H, and pedal, I, combined with the parts, A, B, of the chair, in the manner described, and for the purpose specified." Defendants claimed that in the chairs they were manufacturing they had no block, C, no toggle-arms, E, G, and. no shaft, H. They admitted their use of the other elements of the combination, but claimed a different use of the arm, D. Their claims as to the shaft·, H, and the toggle-bars, E, G, were as follows: "They have not the rock-shaft, Imd the only possible thing that could be construed to be the equivalent of the rock-shaft is the pivot-pin of the segment; but this does not rock, nor does it extend to one side of the chair, affording a means for locating the pedal at the right-hand side of the chair, as the patentee specifically sets forth as being 4)ne of the leading distinctive features of his invention. The defendants' pedal is located directly in the middle of the chair, and does not have the alleged advantage as to locating it at the right-hand side of the chair, as specified in the patent. The simple