COLUMBIA RUBBER CO. 'V. KLOUS.
COLUMBIA RUBBER CO.
(Circuit (Jourt, D. Massachusetts.
In Equity. On bill for injunction. The Columbia Rubber Company and others, complainants, filed a bill to enjqin Seman Klous, defendant, from infringing a patent granted to Amos W. Thomas, for improvement in bustles. Liver"/1/hT'e complainants. J. J· J.H. Appleton, for defendant. COLT, J. This Is a bill inequity brought for the alleged infringement ofreissued letterS patent No. dated September 2, 1873, granted to Amos. W. for improvements in bustles. The original patent was dated May 9,1871, and the first reissue, May 14, 1872. The pres;. ent suit is brought upon the second reissue. The patent and the first reissue contain but a single claim; in the second reissue the claims are expanded .to the number of twelve, and material changes and additions are made to the specification. 'The original patent is short, and understood without difficulty, and this is true of the first reissue; it is only when we come to thf:l expanded claims of the second reissue that any doubt or difflculty,ari!'1es as to the exact character and scopeof the invention. Turning to the origintll patent, the patentee. thus defines his invention:
invent.ion relates to the mode,of suspending the horizontal or slightly iu()lined bars of skirt-wire which project backward from the right and left sides of a band buckled around the waist of a person; and consists of three series, more or less, of standards, each series consisting of several pieces of fiat elastic skirt-wire, 'bent, secured 'permanently together at the bends, and the ends spread apart so as to afford straight uprights, when the upper end of the inner or .longestione is securely' attached to. the waistband, and the of the successivllly shortening ones to the respective horizontal or slightly debows, and tbe.tournure applied so that the connected bent portion of each ofthe said series of standar"s against the person, and the sai4 standards the bows in the required horizontal or declined allow them to yield elastically inward to any positions, ,and'. at',tbe same outside latela1'press'ureor impact upon the tournure; 'the object of my invention being to afford sucb a support to,tbe rear portionio! the Bkirt
. FEDERAL REPORTEH.
will effectually prevent its weight from swagging the bows down ward, and at the same time 1j.1low the said bows to yield elastically inward to lateral pressure or impact from the outside of the dress." The claim is as follows: "The series of standards. C, C, C, in combination with the waistband, A, and bows, B. B I, B 2, B 3, B 4, constructed and arrang,ed to operate substantially as aud for the purpose hereinbefore set forth." , From the specification taken in connection with the drawings, the in- . vention of Thomas is clear. It consisted of a standard, or standards, composed of several uprights secured permanently together at their bends with their ends spread apart, and respectively attached to the bows and waistband. In the original patent the claim was limited to a series of standards in combination with the waistband and bows. In the first reissue, granted about a year afterwards, the claim was broadened so as to cover a single standard, C. in place of a series. It reads as follows: "The.brace, or standard, C, composed ofa series of converging wires which have their outer ends respectively connected to thelwaistband and the several bows, as oet forth." In the second reissue the attempt is made to broaden the claims, of the original patent and the first reissue, so that the patent shall cover a standard composed of a single upright. The o:r:iginlll invention was for a series of standards, each composed of several uprights; the first reissue contained the broader claim of a single standard consisting of several uprights; the second reissue, granted more than two years after the date of the original, now seeks by changes in the specification and additional claims to enlarge the sc6pe of the patent, so that it may include a standard composed of a single upright. Under the law as now well established thiS cannot be done, and all claims in the second reissue which are broad"r than the claim of the original patent or the first reissue are void. The plaintiffs rely upon claims 5 and 9 of the second reissue. Claim 5 reads: "A bustle standard or support for sustaining superincumbent weight exerted in the direction of its length, without yielding in said direction, having a base which rests against the person of the wearer, an outer extremity secured to the bow or bows, and a suspender proceeding from said base to the waistband, as described." This claim, by its language, covers a single upright secured to a bow, and is broader than the claim of ,the original patent or the first reissue, and therefore it must be held to be void. Claim 9 is for a "bustle standard or support for the bows, having a series of braces, two or more, the extremity of each of which is attached substantially as described, and which are united where they corne together." This claim is manifestly broader than the claim of the original patent, where the patentee limited his claim to a series of standards. The plaintiffs contend that the word standard in tho original patent means an upright, and that the term series of standards in the claim signifies It series of uprights. But the drawings make it clear that the word standard refers to several uprights secured together a.t the bends with their ends at, '
GRAND AVENUE RY.
tached to the several bows and waistband, and the patentee so specifically states in his specification. It is urged, however, that claim 9 is not broader than the claim in the first reissue, and that therefore it is not invalid. Assuming this to be true, I am of opinion that the defendant's bustle does not infringe this claim. The KIous bustle has not the series of uprights which are the main feature of the Thomas invention. The claim says that the series of uprights or braces are united where they come together, which is at the bends. This feature is also absent from the KIous bustle. In the KIous bustle we find a new element, namely, a horizontal bow extending out from the waistband below the other bows. Single uprights are attached to this bow, while their upper ends are attached respectively to the bows and the waistband. The combination of elements which go to make up the ninth claim of the Thomas reissue are not found in the Klousbustle, nor what may fairly be considered their equivalent. The organi$Rtion of the Klous bustle is quite different. For these reasons I think that the bill should be dismissed.
GRAND AVENUE Ry. Co.
January 5, 1888.)
w: D. Missouri, w: D.
PATENTS FOR INVENTIONs-INFRmGEMENT-INJUNCTION.
It is not necessary for a patentee to establish the validity of his patent at law before he can obtain equitable relief for its infringement; but the chancellor may in his discretion require an action at law to be brought and tried, before awarding an injunction, if he doubts the validity of the patent.
SAME-SUIT FOR lNFRmGEMENT-LAW AND EQUITY.
A patentee may sue either at law or in equity for an infringement of his patent, according to the of the relief demanded.
SAME-SUIT FOR INFRmGEMENT-CERTAINTY IN PLEADING.
A bill to enjoin an alleged infringement of a patent described therein merely as an "Improvement in Cable Railways" is demurrable, as not showing with sufficient certainty in what the alleged invention consists.
In Equity. On demurrer to bill. R. H. Manning, for complainant. D. B. Holmes, for defendant. THAYER, J. In this case the objeotions taken to the complaint are threefold and as follows: First, that the complaint does not contain any matter of equitable cognizance; serond, that the complaint does not show in what the alleged invention of the complainant consists; and, third, that the bill does not show that the validity of the alleged patent has as yet been established at law. The first and third objections to the bill are untenable. The complainant seeks an injunction to restrain an alleged infringement of letters patent, and, as an incident of such relief, he also prays for a discovery 2ud an account of the profits realized by the defendant by the use of the