fr9m McGloin he ,m,ight have taken froll). any 'other mechanic. Indeed, a,fter having conceived the idea, and embodied it in pl'actbal form, he might have for a better arrangement for transferring the motion of the table to the switch, so as to give it a lateral movement, without in the least endangering.his right to a patent. The facts are no stronger for the defendant than in each of the following cases, where similar proof was held unavailing. , Agawam Co. v. Jordan, 7 Wall. 583, 606; Yoderv. Milk, 25 Fed. Rep. 821; Gun Factory v. Warner, 1 Blatchf. 258,278; Blandy v. Griffit/!,,3Fish. Pat. Cas. 616. There is little doubt that the defendant infringes. Its switches are identical with the complainant's, except that the applM'litus underneath the platform is somewhat differtlJ;lt. ,The platform, too, is wider; the center is stationary; and a part is located outside the rails. It may as well be conceded that the defendant's structure is an improvement upon the complainant's; but that the main idea-the essential feature of the invention-is found there, is equally self-evident. A center strip of the Newman platform might be made stationary ,--as in the Sanson exhibit, for instance,-the platform might .he widened, and the machinery for moving the switch changed, without departing from the spirit of the invention. The viction cannot be avoided that the defendant hall appropriated the sence of the invention, and that the changes which have been introduced al'e wholly insufficient to take its structure out of the claim of the patent. The,con1plainant is entitled to the usual decree.
CO'lJ/l't, 8. D.Ohio.
December 18. 1887.)
FOn Where, in .an application for a reissue of letters patent seeking to cover certain grounds omitted in the former application by reason of a misapprehensio!1 of\he objections of the commissioner. it appeared that the objections did not require an abandonment; that nothing which was not disclosed in the former was claimed in the 'latter, and that the application fOT reissue was made within a reasonable time: lleld, the applicant regained his position .by his new application and the reissue.
In an application for reissue of letters patent, the jurisdiction of the commissioner attaches only when the application is made within a reasonable time. and he cannot acquire jurisdiction by an erroneous assumption of it.
SAME-R:lllISSUE-JURJSDTCTION OF COMMISSIONER.
In an action for letters patent. where the plea of the de" was abandonment, ·.that alth!'ugh of the proceedlOga of the patent-office' would result In holding the claIm of the reissue void. the plea could not be sustained on the ground tlJat this would not be the single point indicated by the plea.
On bill for injunction:.
HUTCHINSON V. EVERETT.
This is an action brought by Charles G. Hutchinson and others, plaintiffs, against Edward H. Everett, defendant, to restrain an alleged infringement by defendant of plaintiffs' letters patent on a bottle-stopper. West &; Band. for plaintiffs. Brie8en &; Steele and Parkinson &: Parkinson, for defendant.
SEVERENS, J. In this cause I am of opinion, upon a careful study of the proceedings in the patent-office preliminary to the grant of the original patent to Hutchinson,and of the subsequent proceeding taken to obtain the reissue, and of the original and reissued patents, that the original specifications were broad enough to cover the defendant's bottlestopper; that the narrowing of the claim and the canceling of the drawings Nos. 3 and 4, the latter ofwhich is, as conceded by defendant's counsel, substantially like the one defendant manufactures, were caused by a misapprehension on the part of the applicant of the grounds upon which his application had been rejected ntthe patent-office; that, in fact, those grounds of 'objection did not at all involve the requirement that the spring attached to the stopper should not only approximate the form of a figure 8, but should also be of a wire transversely crossing feature not necessary to ma.ke the spring approximate the figure 8; that, however, it was the effect of the narrowing of the claim, and the canceling of figures 3 and 4, and; especially of the striking out of the specifications of so much as related to the structures indicated by 3 and 4, to . Testriet the original patent within bounds which would not include the .defendant's stopper: that, within a reasonable time, the applicant made his appliCation for a reissue; and 80 broadened his specifications as to cover the ground he had abandoned under misapprehension, (as above stated,) and to include the defendant's stopper; and that his first cla.im as approved in the reissue is also wide enough for that purpose. It follows from these views that, if the applicant, under such circumstances, had forever lost his right to a. patent which should include the ground abandoned on getting his original patent, the subsequent reissue would be void as to that lost ground, and, inasmuch as the second claim on the reissue seems co-extensive with the claim confirmed by the original patent, and the inference drawn from this fact and .the enlargement of the specifications is that tbefirst claim was intended to cover wider ground, it would follow also that the first claim of the reissue is void. If, however, it was competent for the patentee to recover his ground by his application for the reissue, and obtaining it, as he did, it would follow that the defendant infringes the patent. Upon two points, then, I invilecounsel to submit argument by brief: Hrst. Was it competent for the applicant to regain his position by his new application and the reissue? Second. If not, and the first claim of the reissue is void, can the defense be made under this plea?, Pending another litigation involving other points, a disclaimer was filed by the patentee,June 18,1883; but it is held that the disclaimer does not extend to the defendant's stopper. It was made div6r8o intuitu j and, when construed as·an entirety, as it should be, does not include a springwhieh
approximates the figure 8, but in which the wire does not crosS' itself, as in the exact conformation of that figure as usually written it would do. It is, I, think, true that, as pointed out by defendant's counsel, the crossing of the wire as in the figure 8 adds a peculiar advantage to the plaintiff's device when in that form, because, when in operation, it duplicates the points of pressure and reaction, and thus makes more perfect the co-operationof the neck of the bottle and the spring of the stoppel: in the desired result. But this feature is nowhere alluded to in the proceedings, and seems .not to have been thought of. It is not thought that the circumstance alluded to on the argument, that the figure set forth in the drawings of the application for reissue is exactly that of the defendant's stopper, inindicates bad faith on the part of the applicant. For aught that the court here knows, the defendant may have taken up this figure as a sample for his OWn product, depending on the assumption that, bavingbeen stricken out, it wa!'! common property. His use of it would be evidence of its The !'!triking out of this last-mentioned figure was, however, expressly required, to comply with the technical rule that no new figures could be used not represented in the original drawings, and could not, .thetefore, .be construed as an abandonment.
(January 12, 1888.)
SEVERENS, J. Counsel having, inJ,'esponse to the invitation of the .court, submitted further argument and briefs upon the two questions indicatedby the court, further consideration has been given them. My conclusion is,that, having regard to what transpired at the patent-office, and the promptness with which the reissue was applied for, it was competent to include within its claims the feature which had been dropped in the original proceeding. It appears to me that there is fair room to believe that the particular feature which seems to be essential to the present inquiry was inadvertently discarded by tbe patentee in yielding to the Bupposedobjections oftbe commissioner; and that such objections did. not in fact require this abandonment. The cases of Miller v. Bra88 Co., 104 U. S. 350; Mahn v. Harwood, 112U. S. 354,5 Sup. Ct. Rep. 174; Clements v. O,..JI'le88 00",109 U. S. 641,·3 Sup. Ct. Rep. 525; Parker & Whipple Co. v. Lock Co.,123U. S. 87,8 Sup. Ct. Rep. 38; and some other cases of like import in the supreme court,-are cited by counsel for defendant as conclusive that a claim once abandoned, in order to obtain, cannot be revived . by reissue. And it is insisted .that the rule applies to the casein hand. The rule applied by the court in those cases is founded in the purpose of preventing fraud on the part of the patentees. It has in view attempts by afterthought, and upon discovery of the inventions and devices of others, to ingraft new stocks upon the former planting. It is conceded, for the purposes of the rule, that the action of the commissioner is ordinarily decisive of the question whether tbere has been inadvertence or not; .but it is held that the. jurisdiction of the commissioner attached only when the, appiication for reissue is made within a reasonable time.
LAW TEL. CO.
Whether it is so made is a question of law, and the commissioner does not acquire jurisdiction by an erroneous decision that he has it. In the present case the delay was not unreasonable; and I think the action of the commissioner, being within the limits of his authority, should stand. It appears to me that the purposes of the statute permitting reissues fairly cover such a case. Nothing which was not disclosed in the original specifications is brought forward in the reissue. At least there was nothing relevant to this inquiry. It was competent for the commissioner to determine whether there had been inadvertence or not. The time in which the application for the reissue was made beil1g only 20 days, was much less than the time indicated as reasonable in the decided cases. MaIm v. Harwood, 112 U. S. 354, 5 Sup. Ct. Rep. 174, and cases there cited. See, also, upon the general proposition, Morey v. Lockwood, 8 Wall. 240; Russell v. Dodge, 93 U. S. 460; Eames v.Andrews, 122 U. S. 40, 7 Sup. Ct. Rep. 1073. Upon the other point, also, my opinion would be with the complainant, that the plea would not be sustained by such a construction of the proceedings in the patent-office as would rE'sult in holding the claim of the reissue void. This would not be the single point indicated by the plea. Ordinarily, this mode of making defense is not much favored, and the ancient rule that the plea must fairly and precisely hit the mark has always been observed. The question whether the defense relied upon can regUlarly be presented by plea was not much argued by counselor considered by the court, and no ruling is made upon it. Story, Eq. PI. §§ 652, 653. 'rhe result is that the plea must be overruled, with costs, and the defendant allowed to answer as prescribed by the rule.
ROOSEVELT v. LAW TEL. CO. and others.
(Oircuit Court, S. D. New York. December 19, 1887.)
PATENTS FOR INVENTIONS-INFRINGEMENT-GALVANIC BATTERIES.
Under letters patent No. 234,413, for an improvement in galvanic batteries, complainant's device, an electro-negative pole to a galvanic battery, consisted of two plates composed of carbon and peroxide of manganese, holding between them a conducting plate of carbon. Defendants' device conshlted of two plates of carbon, holding between them a conducting plate of carbon, arranged similarly to plaintiffs. Held, that defendants' device was an equivalent to complainant's, and was therefore an infringement of complainant's patent.
If two devices perform the same functions in substantially the same way they do not cease to be equivalents because one performs them in a better manner than the other.
Action for the infringement ofletters patent No. 234,413, brought by Alfred Roosevelt, as executor of Hilhorne L. Roosevelt, assignee of Georges Lionel Leclanche.