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
COXE, J. There is nothing in these causes which distit1gUishesthem irom Kittlev. De Graaj, 30 Fed.: Rep. 689. It is thought that the lan.guage there quoted from Clark v.Wooster, 119 U. S. 322, 7 Sup. Ct. Rep. 217, is sufficiently comprehensive to include a case where the objection disputing the jurisdiction of the. court is taken at the .earliest possible moment. Although the pointwlts in that case first, presented upon appeal, the decision is clearly to the.effect that the trial cpurt may retain jurisdiotion, if, at the time the bill is filed, the complainant may obtain the equitable relief prayed for'. The demurrers overruled. The defendants may answer within 20 -days.
KORN v. WntBUSOH and others.
(Oircuit Oourt, $.
York, December 19,1881.)
PATENTS FOB INVENTIONS-INFRINGEMENT-PLEADING.
In an action for the infringement of a patent, the question of infringement cannot be determined upon a It is not the province of a plea to interpose defenses which go to the merits, and relate in nowise to matters in abatement or in bar. Such defenses must be raised by answer.
Plea inEquity. . This is an action for the infringement of letters patent No. 247;766, granted to the complainant October 4, 1881, for an improvement in button-hole <llltters. ' -The object of theinventorwas'tooonstruct a pair of button-hole scissors, with the screw-shaft and nut, which fix the definiteplay of the arms of the scissors; locate'd between the- arms. 011e end pf the screw-shaft finnlYf\tta«hed to one arm ofthe scissors; the -other end: fits into a funnel-shaped hole in the arooQpposite, which gives 'R support to that end of the shaft. ," '.The claim is as follows: "As an article of martufacture,a outt6n-hole cutter, hliv'ing the D, securely fastened to one arm of the cutter at one end, and the other end resting in a conical recess in the other arm of the cutter,:the nut, C,working c<>ntpe 811&ft,.P'.. between the tWQ arms, all. constructed and lU"ranged substantially as purpose " The application as ·firstfiled :wa.s rejected upon reference !totwo prior patents, the examiner holding that the change was· a:'fmere work-shop ,expediellt" .noti11volving invention. Thecomplainantthen changed the claim to its present form, and forwarded.'the amendment to the commissioner, with a letter in whicn.he thus distinguishes his invention from the examiner's references:· "The construction in applicant's: case is different. One end of the screwshaft is securely fastened totha inside of one arm, llond ,tpe other end rests in a,c<!llicalrecess in the other arm, forms a support for; this end, and, the nlit works an this sc;rewshaft, alld the seat fixing the of ,the: c¥t ·of the cutter; and the entire lengtn of the screw-shaft is ,sides of the arms of the cutter, thus making the cutter more compact and less -cumbersome." , ". :