covers the square shaft, in combination with a' tray which must be journaled in the end walls of the kiln, and on intermediate brllckets, which journals must have polygonal openings for the reception of a polygonal 8haft. No claim in the patent covers the mode of reinforcing the wire netting or perforated sheet metal which forms the floor, so t,bat it will not bend under the load of malt put upon it, nor the intermediate supporting bracket; and hence, if there was any invention involved in the construction of this supporting fraine or the bracket, it has been aban.. " . doned to the J>ublic. As to the complainant's claim, for the locking by means of the hook pivoted on one shaft, and arranged to catch over either of the adjoining ones, it is enough to say that defendants do not use a hook, but have adopted the old and well-known device of a latch or pin; and, while this hook device of complainant may be new, it cannot prevent defendants from adopting the latch any more thana new door catch would prevent a man from using the old fashioned latch or pin to fasten his door. ., I am therefore of opinion that. defendants do not infringe either of the claims of this patent, and complainant's bill must be dismissed for want ofequity. '
BURDSALL. tI. CuRRAN
(Oircllit Oourt, No D.lllinois. July 25, 1887.)
PATENTS FOR INVENTIO:Ns-ASSIGNMENT-REISSUE-EsTOPPEL OF PATENTEE TO CLAM· b'vALIDITY.
Where a patentee has assigned 'his patent, he is estop.ped. in an action . brought against hiw. for infringement by his assignee, from denying the valid'ity of reissues of his patent, though such reissues were obtained since the as"!ignee acquired an interest in the patent, and the latter might have known that they were void when he accepted them.
Uvon an application for rehearing in a suit for infringement df a patent, the.JDvalidity of the patent being in the light of some additional evidence &S to the state of the art. but. no reason beingaslligned for. faiJure to produce thill evidence at the hearing, held, that the evidence would not be considered.
Application for Rehearing. Fot original decision see 20 Fed. Rep. 839. Jease Oox and J. N. Jewett, for defendant. We8t &-. Bond, for'cornplainant.
BLODGETT, J. This is ari application fora rehearing. The original decree was entered July 16, 1883,'fi:nding that defendants had infringed the first, second, third, fifth, sixth, and seventh claims of reissued pat";' ent No. 8,840, and the first, second, fifth,sixth, and seventh claims of reissued patent No. 8,846. The niotion for rehearing 'is based mainly upon the ground that some of the claims in thesereis8uedpatents; which
the court -fomud 'were infringed by defendant, were not found in the original patent; and that, these reissues having been applied for more than two years after the issue of the originals, the new and expanded claims were void under the rule in Miller v. Bridgeport Brasa Gl., 104 U. S. 350, and Jarrwa v. OampbeU, Id. 356. The original patents were issued to the defendant John J.Curran, as the inventor of the devices shown in them respectively; and the complainant, Burdsall, has, by a series of mesne assignments, become the owner of these two patents for the state of Wisconsin, in which territory the infringements are charged, and found. to have been made by defendants. These reissues were applied for July 2, 1879, anq.'both were granted on the twelfth of August of the same year to Curran, and Carlos Wilcox. as assignee of Curran. At the time these reissues were obtained, complainant seems from the proofto have been the owner of a half interest in both original patents for the state of Wisconsin,and be acquired the remaining interest for that. state in March, 188'1.. No question was made at the former hearing as to the validity of either of the patents, and non·infringement was the only defense argued, Although the defense of want of novelty was set up in the pleadings, no proof was taken, and no stress laid upon it at the hearing. In passing u.pontbeiquestion of the validity of the patents at the former heating, I stated that the suit, being brought by the. assignee of Curran, even if the question of want of novelty or the validity oOhe patent had. been 'set I, should consider that Curran was estopped by his position as patentee from raising that question as against his assignee. The point is now made that, the reissues having been obtained since complainant acquired an interest in the patents, the estoppel does not apply as to the new or enlarged claims, because complainant was not compelled to accept the reissue, but could have stood upon the patents as originally issued; and, if he accepted the reissue, he did so ,with knowledge that the new and expanded claims were void. Potter;"': Holland, 1 Fish. Pat. Cas.,327: . no questiori, under the authorities, that Curran would be estopped' from denyihgthe validity of the original patent. Walk. Pat. § 469; Oldham v. Langmead, 3 Term R. 439jThomas v. Quintard, 5 Duer, 80. And it seenis to me that if he would be estopped from denying the patentability of the devices covered by the originals, as against ·hisassignee, he is equally so as to the reissues. He virtually, by his acts, has said to his assignees, as well as to the patent office: "By inadvertenGl:lll-I?,d mistake I did not make my claims in the original patents asbroa,d my invention. I have therefore surrendered the ori,ginals, and taken in their place these reissues which inure to your benefit." If he estopped to deny the validity of the originals, the same rule should estop him as to the reissues. He cannot be allowed, as it seems to me, to surrender the original patents, and take these reissues, and then say 1iOhis assignees: "I have 'beenguilty of falseh()odin obtaining both the original and reissue, and hence can deny your title to the property which you have acquired through me, and trespass with impunity upon
property I have sold you for value;" and it also seems that the other defendants are equally estopped with Curran, as they are his partners, and can have no greater rights than he. Having clothed this complainant with the exclusive rights granted by the reissued patents for the state of Wisconsin, Curran and his partners cannot now defeat those rights by setting up the invalidity of the patents assigned to him. . The application for rehearing also reargues the invalidity of the original patents in the light of some additional proof as to the state of the art; but, as no reason is assigned for the failure to produce this proofat the hearing. I do not think it should now be considered.. } The question of infringement is also elaborately reargued in the· briefs filed on this motion, but I am still of opinion that theinfringen:ent is clearly ,shown by the proof. The motion for rehearing i§therefore overruled, with the reservation that it is possible on the final hearing the court may be of opinion that Curran's partners and co-defendants are not bound by the estoppel which binds him, and therefore may not be liable in damages for the infringement of the neW and expanded claims of the reissue; and this question may be further discussed on .the final hearing upon the master's report; and it is possible, also, that the third olaim of patent No. 8,846, which is new and is similar in effect, but different in'itsverbiage from the second claim, which was one of the original claims of the patent,may cut some figure in the final adjustment of the damages; but, as I am at present advised, I do notthink it will. The accounting must therefore . go on before the master.
THE EsTEB,AN DE ANTUNANO. CARMONA and others v. THE ESTEBAN DE ANTUNANO. (ALBINA,an'd others, Intervening Libelants; MURIETTA and others, Claimants.)
(Oircuit Oourt, E. D. Loui8iana. June 11,1887.)
MARITIMlil LIENS-SHIP'S HUSBAND.
There fsno maritime lien on a ship in favor of the ship's general agent Or husband. , . . Supplies furnished a ship on the authority of the master in a foreign port will bepresurned to have been furnished on the credit of the ship, but no lien can be given to who furnished suppliEjI!·on the order of the master, whexe the master was without authority to contract for the ship, and the materilll-men' knew, or ought to have known;that such authority was wanting. .
SAME-FUJ;tNlSIlERS. OF SUPPLIES.
In this circuit a stevedore has no maritime lien upon a ship for his services in loading and stowing her cargo; follQwing Paul v. 2 Woods, 229.
by Joseph P. Hornor, Esq., ·ofthe New Orleans bar.