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,
BALDWIN 11. CONWAY & CO.
Rev. St.,) the court is not at liberty to consider it. The objection was taken before the examiner, and the defendants were thus notified at the earliest possible moment of the complainant's position, and Yet no motion to amend the answer was addressed to the court. The patent granted to Henry Hirsch, March 5, 1872, does not antici" pate the complainant's patent or affect it in the remotest degree. The compound covered by the Hirsch patent consists of paraffine, bees-wax, and gypsum. ' The complainant is entitled to the usual decree.
BALDWIN t1. CONWAY
& Co.· Limited.
(Circuit Court, S. D. N6W York. December 1,1887)
PATENTS FOR INVENTIONS-INFRINGEMENT--lNJUNOTION.
The plaintiff applied for a preliminary injunction to restrain the infringe· ment of a patent. The patent had not been adjudicated on, and it was questionable if the invention was patentable. Held, that a preliminary injunction should not issue.
G. G. Frelinghuyslm, for complainant. John H. Kitchen, for defendant.
LACOMBE, J. This is an application for 8 preliminary injunction to restrain the defendant from infringing the patent for improvement in police nippers granted to the plaintiff July 7, 1874, and numbered 152,822. It appears that police nippers consistiqg of a small chain of suitable length with a cross-bar attached at each end, similar to those used on chain halters and trace chains, were in use for many years prior to plaintiff's When nippers thus made were used, the links of the chain being twisted between the fingers of the policeman, pinched and hurt them, thus preventing his keeping as firm a hold as necessary. When, also, for any cause it became necessary to twist the chain more or less, in order to adapt the nippers to prisoners having small hands or wrists, the difficulty was increased. In the original nippers the chain is fastened ,to an eye which projects inwardly from the cross-bar about three-eighths of an inch. 'rhe pll),intiff's alleged invention consists merely in elongating this eye to about four times its original length, thus bringing the chain entirely without the hand, and preventing the injury to the fingers from the movement of the links. There has been no adjudication upon the patent; and, while it may be that the elongation of this eye is, as the plaintiff claims, a patentable invention within the decisions, and not obnoxious to the criticisms so for(libly expressed in Atlantic Works v. Brady, 107 U. A. 200, 2 Sup. Ct. Rep. 225, still its claim to be considered such rests on so slender a foun-