THOMPSON V. SMITH & GRIGGS MANUF'G CO.
There is in the later decision of Judge inconsistent with the views expressed by him in the case reported in 10 Fed. Rep. In Wilson v. Chickering, the patentee" licensed and empowered plaintiff to manufacture for the term of ten years, * * * and to sell the same; but in case of plaintiff's bankruptcy, the license shall end." In the present suit, the conveyance under which plaintiff claims title, so far as the granting part is concerned, is in the following words: "The party of the first part has sold, assigned, and transferred, and by these presents does sell, assign, and transfer, to the party of the second part, all his right, title, and interest in and to the said improvements as secured to him by letters patent aforesaid. for, to, and in all parts of the United States .and territories lying east of the Rocky Mountains; ... ... ... the same to be held and enjoyed by the said party of the second part within and throughout the above-sllecified territory, but not elsewhere, for his own use and behoof, to the end of the term for which said letters patent were granted." The interpretation of patent conveyances, like that of all otherwritten instruments, is to be according to the intent of the parties as evidenced by the words used. No particular form is required, although there must be some operative words expressing at least an intent to assign in order 1;0 constitute an assignment. Campbell v. Ja'rM8, 18 Blatchf. 107; 2 Fed. Rep. 338. It seems clear from an examination of the facts in the two cases before Judge LoWELL that in the piano case the intention was to reserve to the grantor everything except the right to manufacture and sell lora term of ,10 years, while, in the oil-cup case the grantor intended to transfer all that he had, except, perhaps, ,the right to an extension. There J'jeems no reason, why the decision of Judge LoWELL construing the very instrurnents now before the court should not be followed on this application for a;'prelimiuary injunction, and theplaintiff's motion is therefore granted. ,
und another v.
Co. and others.
«(Jircuit Court, D. Connecticut.
PATENTS FOR Il!tVENTIONs-NOVELTY-CI,ASPS.
The plaintiff claimed under letters patent No. 826,357, issued to Jacob J. UnbeheAd, for a clasp. "a flexible tongue support consisting of two plates superimposed one upon the other. and connected together by a metallic band embracing the said plates at one end thereof." Also, "in a clasp, a flexible tongue support of two plates provided wHh corresponding slots. and a metallic band passmg through the said slots and embracing the rear end portions" of the pl ates to tie the same together. .. Held, that the band de· scribed in these claims is not a patentable noveltv.
Plaintiff claims under letters patent No. 326.357, granted September 15. 1885, to JacobJ. Unbehend, for a clasp or buckle especil1llY adapted to arctic over-shoes. Tpe plain$iff's device is a buckle in which the tongue is hung in other, with on recesses between two plates, one superimposed on each side of the recesses, to prevent lateral motion. and to retain the hinge-
pin in the recesses. Defendant manufactures a buckle in which the tongue is hunlt in notche's in the flanges of the lower plate, which are turned up to make the notches. These flang-es are not guards, but the parts upon which the tongue is hung. Held, that this was not an infringement of plaintiff's patent.
George W. HffJj, for plaintiffs. Charles E· .Mitchell and George E. Terry, for defendants.
SHIPUAN, J. This is a motion for.a preliminary injunction to prevent the alleged infringement of letters patent No. 326,357, granted September 15,1885, to Jacob J. Unbehend, for a clasp or buckle especially adapted to arctic overshoes. The inventor, in the specification, describes the invention as follows: "'fhis invention has more particnlar reference to the style of clasps in which the tongue is hinged between two flexible plates by a cam-shaped hinge-pin entering between the plates and prying the same apart when swinging the tongue towards its open position, thereby imparting the spring- action to the clasp. My invention consists; first, in the combination, with the two tongue supporting plates superimposed one upon the other, and connected together at one end, of guards across the si,de edges of the flexible portions of said plate to retain the hinge-pin of the tongue in its proper bearings on the plates, and also prevent lateral displacement of said plates in relation to each other; and the invention also consists in a novel, simple, and effective means for connecting together one end of the tongue-supporting plates, all as hereinafter more fully explained, and specifically pointed out in the claims."
It is an improvement upon letters patent, No. 305,410, granted to the same patentee, September 16, 1884, which was for a clasp in which the tongue was hinged between two flexible \plates, or rather between the leaves of a double flexible plate, by a cam-shaped hinge-pm entering between the plates, as above described. The improvement consists simply in the guards, and in the band which connects the two plates together. In No. 305,410, as well as in this patent, the hinge-pin of the tongue has its bearipgs in transverse recesses closed in front, which are formed near and between the forward ends of the two plates. The hinge-pin, without the guarus, performs its office well. In this patent, for the purposes named in the part of the specification which has been quoted, a lateral projection is formed upon each forward end of the upper plate and upon each side of the recess, and these projections are turned at right angles to the plate. These two plates are firmly connected by a metallic baud. which is wrapped around the rear ends of the plates. The edges of the embraced portion of the plates are notched, the notches serving as counter-sinks for the band. The five claims of the patent . which are alleged to be infringed, are as follows: "(I) In a clasp, the tongue hinged between two plates, and guards across the edges of the said plates, in front and rear of thehinge·pin of the tongue, sUbstantially as and for the purpose set forth. "(2) The combination, with two plates superimposed one upon the other, and flexible from each other, and a tongue hinged between said plates, of guards across the side edges of the flexible portions of said plates, to prevent lateral displacement of the plates in relation to each other, as set forth.
"(3) The tongue and its cam-shaped hinge-pin, in combination with two plates superimposed one upon the other, connected together at one end, and provided at their free ends with bearings for the hinge-pin, and with an opening between said bearings the reception of the tongue, and guard-lips projecting from the edges of one of the plates. across those of the other plate at the side adjacent to the aforesaid opening, and in front and real' of the hingepin, substantially as described and shown. "(4) In a clasp, a flexible tongue support consisting of two plates superimposed one upon the other, and connected together by a metallic band embracing the said plates at one end thereof, as set forth. "(5) In a clasp, a flexible tongue snpport consisting of two plates provided with corresponding slots, and a metallic band pa.'lsing through the said slots, and embracing the rear end portions of the plates, to tie the same together. substantially as described and shown." The defendants' buckle or spring clasp is assumed to have the two superimposed plates,-one a base plate, and the other a supporting plate; ,and it has a tongue, or holding lever, provided with cam·shaped pivots which turn in their bearings. The two plates are connected together at their rear ends by a band which is integral with the base plate, and is bent around the superimposed plate. Near the forward ends of the plates, the inside edges of lower plate are turned upward, and form flanges at right angles to the plate. In each of these flanges a notch is made, opening upward. The laterally-projecting pivots of the lever rest in the notches, as their bearings. These notches are the only means of hanging the lever to the frame. With the flanges removed the clasp is useless. In deciding this motion, I have not the benefit of carefully taken testimony, but, aided only by ex parte affidavits, it seems to me that there is an important difference between the two devices. In the plaintiffs' device the tongue is hung in recesses between the plates and the flanges; on each side of the recesses are guards to prevent lateral motion of the plates, and to help retain the hinge-pin in the recesses. In the defend·ants' device, the tongue is hung in notches in the flanges of one of the plates, which are turned up in order that the notches may be made. office more resembles These flanges are not guards for the notches; that of ears upon which the hinge-pin is hung. In the plaintiffs' device, the guards are something additional to the recesses in which the lever is hung, while in the defendants' device the so-called guards are the part upon which the hanging of the lever depends, and without them there would be no buckle. Neither do they prevent later/11 motion of the plates, because they do not come in contact with the spring-plate, which is connected with the other plate only at their closed rear ends. The guards of the plaintiffs' buckle, and the flanges of the defendants' buckle, are for a different purpose. I do not think that the band of the fourth and fifth claims contains patentable novelty. It is simply a band to tie or secure the spring to the frame of the buckle. · The motion is denied.
KIESELE '/I. HAAS
(Oircuit (Jourt, S. D. NeUJ York. November 25, 1887.)
PATENTS FOR INvENTIONS-ANTICIPATION-STATUARY.
Letters patent No. 190,769 of May Hi, 1877, to August Kiesele for a new and improved composition for casting ornamental consisting of paraffine. stearine, and pulverized sugar, is not anticipated by the patent of Mar,ch 5, ,1872 to Henry Hirsch, the compound covered by which consists of paraffine, bees-wax, and gypsum. Where a witness called to prove prior use is objected to before the examiner, on the ground that the answer does not COnform to the requirements of Rev. St. 0. S. § 4920, relating to proof of prior use, and the answer is not amended in that respect, the testimony of ,the witness will not be considered on the hearing. ',
SAME-bTICIPATION-OFFER TO hOVE.
, Complainant proved the purch8$8 from defendants at their business establishment of two statuettes whioh the clerk who made the sale stated at the time were manufactured by defendl\nts. An examination of a piece of one of the statuettes disclosed the ingredients of the composition covered by the patent, and nothing else. Defendants admitted the sale, but claimed that although they did not know what the statuettes sold were made of, the statuettes did n,ot contain the patented composition, Held, that the evidence es' tablished infringement.
In Equity. Arthur '/I. Briesen, for the 'complainant. Charles F. Holm, for the defendants.
COXE, J. On the fifteenth 'of May, 1877, Jetters patent No. 190,769 were grantedto the complainant for a newand improved composition for .casting ornamental figures ponsisting of paraffine, stearine, andpulvenzed s u g a r . ' , The defenses are non-infringement and want of novelty. The complainant proved the purchase from the defendants at their business establishment of two statuettes made in imitation of Bartholdi's "Liberty," it being stated at the time by the employe who niade the sale that they were manufactured by the defendants. A piece of one of these statuettes was I1onalyzed, and was found to contain the ingredients of the patent and nothing else. The defendants admit that the infringing figures "seem to be" made by them, but they assert generally that they do not use the complainant's composition. When, however, they are asked if these figures contain the ingredients of the patent they answer that they do not know. The denial, in substance, is this: Although the defendants do not know what the statuettes sold by them are made of, they do know that these statuettes do not contain paraffine, stearine, and sugar. A denial so vague, magical, and incomplete, in circumstances like the present, amount..'" almost to a confirmation of the proof\vhich it is intended' to overthrow. One witness was called to prove prior use, but as there is no allegation in the answer under which the testimony is admissible, (section 4920,