BLISS 'V. MERRILL.
other, but not in bringing them into such juxtaposition to allow each to work out its own effect and produce an aggregate of results. Although the patent had shown a combination between the indicator and trip register, it was open to Harris to invent a new one, or one between the indicator and a trip register and a permanent register. But after he had done this it was open to others to make a combination between the same parts which would accomplish a similar result by a different organization, introducing a different mode of operation. This has been done in the apparatus of the defendants. It follows that the defendants do not infringe, and the bill must be dismissed.
BLISS and another'll.
(Oircuit Oourt, 8. D. NetD York.
December 7, 1887.)
PATENTS FOR INVENTIONS-INFRINGEMENT-SHIP LOGs.
Reissued letters patent No. 10,625, granted July 21. 1885, for an imlJrove· ment in registering logs of ships, the original patent being dated June 6, 1876, and the original application ftle4February 16,1876, for an elongated cylin· drical case containing the registering mechanism, with the shaft introduced axillary at one !lnd, in cOl1lbination with anti·friction rollers, eye, propeller, and connecting cord or wire, .1Leld to be infringed by a registering apparatus which has ail elongated cylindrical case containing the mechan· ism, It shaft introduced axillary at one end, and the anti·frlctionrollers and the eye adapted to receive the propeller cord. all substantially in the same combmation as the patent.
Reissued letters patent No. 10,625, for a horizontal attaching-yoke, in com· bination with the elongated case, registering mechanism, and shaft of a ship log, is not infringed by providing the elongated case with eyes to which a rope may be attached in such a manner as to constitute lIifringement, there being no evidence that the defendants ever used it in thill manner. and the device . being susceptible of a perfectly innocent use.
S. SAME-PRIORITY OF INVENTION-FOREIGN PATENT. In an action upon reissued letters patent No. 10,625. granted to the complainants. July 21, 1885, for an improvement in registering logs of ships, the original patent being dated June 6, 1876, and the original application filed February 16; 1876, there was evidence that a patent substantially the same was sealed in England. July 27, 1875. Held, that the peculiar coincidence that the same idea. alike even in minute details. should have occurred to two persons on differel\t continents without having seen the other's device. in absence of satisfactory evidence, will not warrant the court in rejecting the positive tes· timony of the complainants that they conceived their invention prior to May
In Equity. Bill for injunction. Edwin H. Brown, for complainants. A. M. Pierce, for defendants.
COXE, J. This action is founded upon reissued letters patent No. 10,. 625, granted,tooomplainants July 21, 1885. for an improvement in registering logs of ships. The original patent was dated June 6, 1876. The
original application was filed February 16.1876. Prior to the invention. logs had been constructed with the registering mechanism in a circular or drum form, attached to the ship by means of a yoke or with gimbals, like a compass or chronometer; they had also been made with an elongated registering mechanism; and the propeller in one apparatus, which was fastened to a line and thrown overboard. These logs were found to be expensive, inaccurate, and cumbersome. They were liable to get out of order and to be lost. The object of the present invention was to provide a simple and inexpensive in-board log; the elongated case containing the registering apparatus being attached to the taffrail of the vessel, and connected by a line with a distant propeller, rotating in the water. The case is provided with a spindle or shaft, the end of which protrudes to receive the line of the rotator. Motion is thus communicated to a series of wheels, which move the indexes on the dials, thus indicating are as follows: the vessel's speed. The "(2) An elongated cylindrical case containing the registering mechanism, with the shaft, 0., introduced axillary at one end, in combination with the antifriction rollers, h, eye, d, propeller, and connecting cord or wire, SUbstantially as set forth. (3) The horizontal attaching-yoke. m, in combination with the elongated case, (J, registering mechanism, b, and shaft, c, substantially as set forth." In view of the disasters which usually befall reissues, it is curious tq note that, although the patent ill suit was grahtedmore than nine years after the'original, no accusation is made against it as a reissue. The object of the reissue was to correct a clerical error merely. The defenses are lack of novelty and invention, and non-infringement. The invention of the second claim is not anticipated by any of the prior patents or exhibits. The English patent to Reynolds describes substantially the same combination, but, though prior to the complainants' patent, it was not prior to their invention. This patent was sealed July 27, 1875. It was therefore on that day that the invention was made patent to the public. Smith v. Goodyear, 93 U. S. 486,498. The :loIllplainants, if they are to be c;redited, conceived their invention prior to May 6 of that year. Their testimony in this regard is to some extent corroborated by other witnesses, and by presumptions drawn from facts and circumstances. It is true that this portion of the proof is hardly susceptible of denial. It lies almost wholly within the knowledge of the complainants. A direct attack upon a position founded upon such evidence is, except in rare instances, out of the question. But the difficulties which surround the defendants do not exonerate them from presenting some satisfactory proof, either direct or circumstantial, to traverse the positive assertion of the complainants. Instead of this, there is nothing but the intangible presumption arising from the somewhat peculiar coincidence that the same idea, alike even in minute details, should have occurred to two persons on different continE'nts without one having seen the other's device. But it is entirely clear that the court would not be warranted in rejecting the positive testimony of two respectable and unimpeached witnesses upon a mere sus-
BLISS V. MERRILL.
picion of this character. The date of the invention must be fixed as stated by the complainants. The witness who testified to sales of the "Reyno!ds Log" in July, 1875, omitted to give a description of the logs so sold. The court can hardly aSElume, in the absence of all proof, that the" Reynolds Log" was the one d,escribed in the Reynolds patent, and, besides, the complainants' invention antedates these sales also. There can be no doubt as to the infringement of the second claim. The defendants' apparatus contains all the elem,ents of that claim. It has an. elongated cylindrical case containing the registering mechanism, a shaft introduced axillary at one end, the anti-friction rollers, and the eye adapted to receive the propeller cord, all substantially in the same combination as in the patent. Regarding the third claim there arises a serious whether, in view of the s'tateof the art, thercwas any invention in providing the elongated case with an attaching yoke; but it is not necessary to decide the question','for, it 'is entirely clell-rJllat the defendimts do not infringe this chtim. They have no yoke at all, but simply eyes to which a rope may be attached. It is urged by the complainants that when used to form a susfor the rigid metallic yoke pending bail the rope would be the of the p'atent. This is true, hut it is insufficient to establish inftingement. The mere fact that a person sells an article to which a patented device may be attached, does not make him an infringer, provided the article is not so constructed that the patented deVice and nootner can be used with it. In the present case, the registering mechanism of the defendants maybe used without infringing the third claim. For instance, if a rope were run through the eyes at right angles to the axis of the case, the ends attached to stanchions some feet apart, and the rope twisted so that it performs the functions of a torsional spring; or if through the eyes were slipped two upright parallel rods, fitted to receive them in such manner that the spindle end projects over the taffrail; orif the case were suspended from the side of the vessel by a rope attached to one eye alone,-there would be no' infringement. In none of these instances would. there be a "horizontal attaching yoke," or an equivalent therefor. See cases cited in Snyder v. BunneU, 29 Fed. Rep. 47 . If the defendants had sold a case without any apparatus for attaching it to the vessel, it would be but a step further in the argument to aseert, that because the case must be supported in some manner, and as the trunnions and yoke of the complainants' device constitute a convenient mode of fastening, and might be selected, therefore contributory infringement had been established. The complainants are entitled to a decree upon the second claim, for an injunction and an accounting.
FEDERAL REPORTER. GOOD v. BAIJ,EY and others.
(Oircuit Oourt, E. D., Penn8ylvania. November 9,1887.)
lNvENTtON8 PROv:m1olNT. INFRINGEMENT";" FLu-DRAWING MACHINES- 1M-
provemeJ;lt ill flax-drawing machines. S(;lts of gijl-pins are carried by end· less chainS; but. as stateq in his application for a patent for an improvement hi 1885; the working pins of one belt cannot be brought very close to those of the other, and, .on account of this break of very considerable length between the w·orking. portions of 'ihe t'Wo belts, the machine. while it works well for a long fiber; does not work' as well for a shorter one. The slower-moving series of pins of the Bailey & Lewis machine are operated by screws, and are brougb,t.ln.tO,and car.ri ed out ofa.ction.by means of cams. pon the SCI'.ew-rods. . which raise or loweitheir carrying bars; and the gill-pins in the faster-moving aeries are: divided between an upper and a lower endless chain; the pins of one other. These, with the o.ther mechanical dea.dmit of a much, qloser relation between the two vice8 series Of 'bars and pins than is found in complaipant's machine, and as close all is desirable to have thein. Helit, that the difference, though slight, is very important. and ill no infringement. .
NO. 95.462 were issued October 5,1869; to Good, for an im-
·.. Billfor . '.' Bill"by: Good, complainant,against Bailey & ,Lewis, defendants, to certain letters patent granted for in: flax-drawing maohines.. . Gifford BrUMJrts,nd ,W. A. Redding, for complainant., W. H. DooliJi1e and Orawjord Dalku, for respondent. , BUTLERJJ·. ' .The suit is brought for infringement of letters patent No. 95,462, granted October 5,.1869, to Good, for an improvement infllliXdrawing machines. Tllevalidity of the patent, and ,the alleged infringement, ar.e.4enied by the answer. As r(lspects the first, little need be said. The patent was granted nearly.20, YEla.rs ago. The. machine wept into use·soon after, and has to be employe!! throl;lghout the country ever since. It was valuaple, ,aqd displaQe.d machines. previously used for the same purpose. of the patent has never been questioned save in this inEltance. Sucha,cql,lieIlOence is anel of itself is entitled to much weightipcoIJ,sidering the, question now raised. We have found nothing to justify an adverse decision; nothing sufficient ,to ovarin .the comethe.presumptions arising from the patent, and the acquiescence referred to. The history of the art, and the record of the complainant's and proceedings,.thereon, however, forbid .a,liberal construction of the claim. All the elements employed in forming the combination are old. The combination alone is new, and this differs so slightly from that of machines previously manufactured or described that the claim for it can only be sustained in connection with the special mechanical devices employed in forming it. Vie do not mean to say, or suggest, that its operation may be avoided by the mere substitution of known equivalents; but we think it may by the employment, instead, of other