publicly known long before this patent was applied for. Paper bags being old for various purposes when protection from dirt or wear was 'desirablej" there was no invention in using them to protect blankets; and aft article as flexible as paper, there can be,no invention in adapting".l't'oag made of paper to the shape of article it is to cover and protect. In the light of these authorities, I cannot see why, in a suit for infringement Ofa patent so clearly and baldly void as this, the court ought not to defendant from the vexation and expense of a trial upon 'proofs by sustaining a: demurrer to the bill. If, after a case reaches the supreme court, that court, can,fr0m it'S common knowledge, without reference to the pleadings and proofs, but merely from an examination of ,the patentt.itself, say:that the patent is void, I see no reason why the court 'Ofol'iginal jurisdiction capuot do the same. ',' The delfiurrer is therefore sustained, and the bill dismissed for want of ,
. . '1
MYERS SANITARY DEPOT and others.
«(Ji;rcuie COWl't, S; D.New York. December 6, 1887.) .
Plaintiffs purchased an invention upon which a British patent had beenob· tained. but which had expired before the purchase by reason of the failure to , ,pay'the 'fell to 'keep it alive;' ,Tho:y:theri obtained American patents, and SO, ugh,t to elljoin defebdants froJD mfringing upon them. eUl, that there 'wastpo much doub,t of the validity of the American patents to warrant the issuing o'f a preliminary injunction.
In Equity. Bill for injunction. Albert Comstock, for complainants. Wm.' H. Sage, for
LACOMBE,;1.. Tl;lis ill an application for a preliminary injunction to restrain the infringement of two letters patent, owned. by complainants, and issued, the one, June 27, 1882, (260,232,) to Henry Huber, assignee by mesne assignments of Peters & Donald; the other, March 28, (255:.4$5,) to James E,' Boyle. Both patents are for improvements insanitarywater-closets. The application, so far as, it concerns the Huber patent, is resisted, inter ,alia,' on the ground of abandonment. It appears that on April 7, 187:4,Petets & Donald took out a British patent for theirinvention. On April 9, 1881, this British patent expired by rea'lon oftheit failure to pay the fee required by the' British patent law to keep it Boyle subsequently (October 27, 1881) purchased the Peters & Donald invention, and 'sold it (November 26, 1881) to Huber, ,who on Nov.ember 29,1881, applied for a patent thereon. The American patent was granted to him June 27. 1882. , It is claimed by the defendants that by reason of the failure of the inventors tOikeep alive the British patent, their invention was abandoned
to the public, and could not be afterwards reclaimed. The point raised is a new one. The decisions which have heretofore been rendered as to the effect of the lapse of an English patent for non-payment of taxes do not apply; they deal simply with the effect of a lapse subsequent to the issue' Of the American patent. Paillard v. Bruno; 29 Fed. Rep. 864; Holmeav. Metropolitan 00.,21 Fed. Rep. 458; ReManer v. Sharp, 16 Blatchf. 383; Henry v. :fool eo., 3 Ban. & A. 501. Without passing upon the objection thus presented by the defendants, it is sufficient to say that it raises too great doubt of the vRlidity of the patent to warrant the issuing of a ,preliminary injunction, in the absence of an adjudication in its support. With regard to the alleged infringement of the seventh claim of the Boyle patent, No. 255,485, anticipation is suggested in a prior patent to Owen; the variation between the forms of in the two patents beirig, it is claimed, not such as will support the patentability of the later device. In the absence of adjudication upon the Boyle patent, and in view of all the facts, a preliminary injunction will not issue.
BRUNER. SAME SAME 'V. FLINT.
SOLOMON and others.
(Cirouit Oourt, 8. IJ. New York. Novem,Mr 10, 1887.)
PATENTS lI'OR lNvENTIONS-INFRINGEHENT-INJUNCTION-EXPIRATION 011' PATENT. .
The fact that a patent has but a few weeks to run is no ground for a demurrer to a bill for mjunction of an infringement, and an accounting, and will not take away tbeJ'urisdiction of the court to grant such relief as the plaiDtiff may be entitle to; following Kittle v. IJe (haaj, 80 Fed. Rep. 689.
In Equity. Bill for injunction. These are actions' in equity, asking' for a temporary injunction to r&strain defendant froJ;l1 infringing a patent, and for an accounting. It appears that the complainant, Samuel Kittle, was the inventor of a spiral spring for use in mattresses, (Kittle v. Hall, 29 Fed. Rep. 508;) that Jariuary 4, 1870, he obtained a patent for his invention, which patent expired January 4, 1887. 'The numper of the patent was 98,505. Actions' were brought against several defendants for infringement, the bills being verified 'from 30 to 50 days before the expiration of the patent, the day for appearance being about a month before the expiration of the patent, and the day for answering or demurring being January 3, 1887. The defendant demurred on the ground that the patent had so short a time to run that the court had no equity jurisdiction. James P. }i'oster, for complainant. Wheeler H. Peckham, for defendants. v.33F.no.1-4