minousmatter, and therefore could not have contained the same ingredients. The chemical experts differed from each other in the resultsob.. tained, 'nd nothing convincing to support complainant's contention was established by the analytical tests. That the manufacture of asphalt blocks at Stony Point was abandoned,-presumably because the blocks were not a commercial success,-proves nothing, because the Van Camp material has never been put into use, never suhjected to any test to prove whether or not it does possess any new or useful quality or use which similar compositions had not before possessed. The testimony tends to show that Whatever reputation the defendant's manufactured blocks have obtained has resulted rather from the improved machinery and powerful presses used by defendant, and the skill in manipulating the material specially adapted to being moulded in defendant's machinery rather than from any combination of materials differing from that used in 1872. , While a patent is to be liberally construed, so as to sustain it as a grant of the invention actually made and actually claimed, it can never by jUdicialconstrllction be made to cover an ,invention nowhere claimed in it, and which the public has had no fair notice that the Pl1tentee inteD!led to Glaim. .MerriUv. Yeomans, 94 U. S. 573. If it were necessary to say more it might .well be suggested that even in a good claim for a new composition of matter, which is not described otherwise than by the procel:lS of making it, nothing can be an infringement which is not made by the process described. Oochranev. Badische A. &8. P., 111 U. S. al0, 4 Sup. Ct. Rep. 455. The defense of non-infringement and the rejection of the claim fora new composition of matter make it unnecessary to consider other defenses set up in the answer, and urged at tIe argument. A decree dismissing the bill will be
11. AMESICAN ZYLONITE Co.
(Ol:rcuit Oourt, 8. D. New York.
April 9, 1888 )
PATENTS FOR INVENTIONS-INFRINGEMENT-AcTIONS FOR DAMAGES-PLEADING:
" Rev, St. U. S. § 4919, providing that damages for the infringement of a . <lilt may be recovered by action Oil the case, and Rev. St. U. S. § 914., providing t4at the forms of ple!lding in the federal courts shall be the same as those employed in the same action hi the state courts, are construed together, and the pleadings in an action for damages for infringement of a should be in state form. except as modified by Rev. St. U. S. § 4920, pr'oviding that in such action defendant may plead the general issue, and, having given notice; may prove certain special matters.
At Law. Motion to strike out certain pleas. BetUJ, Atterbury, Hyde & BetUJ, for complainant. 8m,rr Rugglea, for defendant·
ant, or to
J. This is a motion to strike out pleas filed by the defendthem as An answer.
The action is for the recovery of
HAT SWEAT MANUF'a CO. ". PORTER.
damages for the infringement of a patent. The summons and complaint are in the forms approved in state practice. The defendant contends that because section 4919 of the Revised Statutes prescribes that such damages "may be recovered by action on the case," the only method of securing such relief is by the archaic form and procedure of the commonlaw action of case, modified only by the rules of this circuit in force before the passage of the act of 1872, now preserved in section 914 of the same Revision. He is unquestionably correct in the proposition that sections 914 and 4919 are to be construed together, but to such construction it is by no means necessary to exclude actions brought under section 4919 from the operation of section 914. An action on the case is undoubtedly the mode in which such damages can be recovered. but the forms of pleading and procedure in such .action in the federal courts should be the same as those employed in the same action in the state courts. The substance of an action on the case was not abolished by the refornied procedure, though its pleadings and practice were reconstructed in conformity with the new system. By the operation of section 914 an action on the case in the federal courts is assimilated to the state model, except so fllr as it is modified by express enactment of congress, as by section 4920. Motion granted.
HAT SWEAT MANUF'G
Ar-lI 16, 1888.)
PATENTS FOR INVENTIONS:-LICENSES-BREACH
A bill in equity alleged that complainant licensed defendants to use the former's patents on certain terms, among which Were payment of royalties, the rendering of monthly accounts, etc.; that defendants soon refused to fulfill 8nypartof the agreement, but continued to use the patents: that they had . conspired with other licensees to destroy complainant's license system, and irreparable injury would result. Defendants answered that the agreement was obtained by fraud on the part of complainant, and was therefore void. Held, that complainant has no adequate remedy at law. and an injunction will issue against defendants, unless they will give satisfactory bonds pending .
Motion for preliminary injunction.
John R. Bennett, Roscoe Conkling, and A. Q. Keasbey, for complainant. Edmund Wetmore, for def'endahts.
WAr,ES, J. The question presented for consideration is, does the bill exhibit a case for equity cognizance? The defendants insist that the complainant has an aGlequate remedy at law. The bill sets forth these facts: The complainant is a Pennsylvania corporation, having its general place, of business in Philadelphia. The defendants are citizens of New Jersey. On the 7th of Maroh, 1884, the complainant, being the owner of several· patents, all of which relate to sweat-bands for hats or caps, the