BLESSIKG V. JOHN TRAGESER STEAM COPPER WORKS.
on the other." HaYe8 v. Dayton, 8 Fed. Rep. 704. The complainant Huber, if sale owner of both patents, could in a single suit enjoin an apparatus which infringed both. Nourse v. AUen, 4 Blatchf. 376. He is in fact the sole owner of the one, and, except for the payment of his royalties, entitled to the whole beneficial interest in the other. As exclusive licensee, however, he is required to join the owner of the legal title. Northv. Kershaw, 4 Blatchf. 70. It would, however, unnecessarily multiply expensive litigation to hold that the inmriable consequeI).ce of thus bringing in the owner must be to compel the complainant to bring two actions, instead of one, to suppress a single infringing apparatus. The demurrer is overruled·
et al. v.
JOHN TRAGESER STEAM COPPER WORKS.
(Oircuit Oourt, S. D. Net/) York. April 28,1888.)
PATENTS FOR PATENTABILITY.
A demurrer for non-patentability apparent upon the face of the patent should ndt be allowed unless the instrument is so palpably destitute of invention that the court can say that no question of fact can arise upon it. A complaint for the infringement of letters patent must state that the In· ventlon had 1J.0t been In public use or on sale for more than two years prior to the application therefor. It is not sufficient to state that it was not in pub· lic use or on sale with the consent of the inventor.
Demurrer to a complaint for infringement of letters patent.
George G. Frelinghuysen, for plaintiff. Frederic H. Betts and J. E. Hindon Hyde, for defendant.
SHIPMAN, J. This is a demurrer in an Rction at law for the infringement ofletters patent No. 80,441, dated July 28,1868, for an improvementin copper-lined batll-tubs. Two grounds of demurrer are (1) That the.complaint, of"which the letters patent are made a pl!-rt, by profert, does not state facte sufficient to constitute a cause of action, because it is apparent on the face of the patent that it does not contain a patentable invention. (2) That the complaint does not state that the invention had not been in public use or sale in this country for more than two years befdre the date of the application. It avers that the invention was not, at the time of the application, in public use, or on sale with the consent or allowance of the inventor, contrary to the provisions of the statute of the United States. The first ground of demurrer raises the question whether the described improvement is so obviously the result of a mere exercise of mechanical skill that the patent is void, upon its face, and must be adjudged to be invalid. It is well settled that, in a bill in equity for \he infringement v.34F.no.9-48 .
Qfa patent, if the patent is void on its face by reason-of want of patentable invention or of' novelty, when the pre-existing device is a thing in the_ common knowledge and use of people throughout the country, the may stop atthe instrurnentitself, and, without looking beyond it, adjudg!'l in favor-Mthe defendant. Brown v.Piper,91U. S. 37; SlawJ1onv;Rauroad CO., 107 U. S. 649,2 Sup. Ct. Rep. 663. In an action at lawupbn the patent, if it is plainly void upon its face, it is likewise 1ruethat the court has the power so to adjudge, upon a demurrer; or, if " demu'rrer is not interposed, and after hearing the evidence upon the lllleged 'question of fact, the court is of opinion that there is no question which can be submitted to the jury, it is its duty to direct a verdict. Where the question whether the improvement required inventive skill for its production actually exists, it is one of fact for the jury. Poppenhusen v. Falke, 5 :Blatchf. 46, 49; Shuter v. Davis, 16 Fed. Rep. 564. In almost all cases the nature ofthe subject demands that the triers should by the testimony slrilled in the,art to which the patbe ent relates, and therefore a demurrer for non-patentability apparent upon the face of sllould not ordinarily 'Qeallo.wed. Teese v. Phelps, 1 McAll. 17. To decide, in advance of an opportunity to give that no evidence can possibly be given upon the question of which wQuldperm,it the case tobesub:mitted to the jury, seems to me.to be ill advised,except in an Ul1USual ' I am awarfl ,that there probably are patents which,'upontheir face, are so palpably, destitute o(invention that a court would not hesi.tate to decide, upon deJnurrlir',t1}atnoquestiQIlMfact ca.h upori them; but, except in that class of: cases, iUs l).Ot, expedient to anticipate a refJult at which thecourt may properly arrive after it trial· upon' the merits; and an opportunity to In this case the patent was in It seems to me' to hav'e' been a very weak one,' and w-h'ile th e m ventlOn appears not to have be,en worthy of 'the favorable J'iotice of the patentoffice, my memory does not infol'm'me'trrat it was Msilyaccessible'when it was made, and I do not wish to assume that I cannot be better instruCted 'tha,Ii I am at 'present as to the degree: of :hlgenuity which the required. The first ground of demtmedsuot sustained. The 'second ground is founded upon theqecision in A'lidrews v. Hovey, 123' U; S.967\ 8 Sup. Ct. Rep. 101, which was affirmed upon rehearing. ld. 676. .That the effect of the seventh sactionof the act of March 3, 1889, (5 St. 359,) wlis "to take away theright'(which existed under the act of'1836) tooutaina patent' after an irivent:0n had for'a long period oftime been in public use withoutthe consent 6rallowance ofthe inventoT. It limitto\d the period to two years, whether thEdnventol' had Qf had'ndt consented to or allt.wedthe public use.)l The supreme court that'a patent could riot properly be'granted, under the act then Qf 1839, for an invention which was in public use or on sale for more than two yea:i'Sprior to the application therefor; and it seems that,in regard to patentS which were' issued under that act; the' samenecessi.ty exists for the 'aVerl11Emttliat the invention was not in pu blictise or on sale for the specified period which has existed in regard to patents whichhll.ve
been issued under and since the act of 1870. This complaint was drawq before the decision of the supreme court in Andrews v. Hovey, and the . pleader followedtheusua:l I>ractice which then prevailed. The second of demurrer lsallowed, with liberty to the plaintiff to amelid within 20 days, without
NATIONAL BARROW & TRUcK Co.
(Oif'cuit GOUf't:S. D. New York.
PATENTS FOR INvENTIONS-WHAT CONSTITUTES INFRINGEMENT.
Letters patent No. 349,681 on a device for fastening the cross-bars of a wheelbarrow to the handles by an adjustable eye, integral with the crossbar, one portion being detachable and fastened to the crQ8s-bar bya bolt or bolts, these bolts drawing the eye tightly. around the handle, cannot be extended SO as to include an detachable clamps which encircle the handles and clamp them to the cross-bars. .
In Equity. Bill founded upon the infringement of letters patent. Worth Osgood, for plaintiff. W. B. H. Dowse, for defendant. SHIPMAN, J. This is a bill in equity which is fo:tJnded upon the alleged infringement of letters patent No. 349,681, dated September 28, 1886, to William Benjamin, assignor to the plaintiff, for an improvement in metal wheelbarrows. The plltented invention was an improvement upon a metallic wh'eelbarrow, the frame of which was composed of two tubular metllllic handles or side-bars, and two cros&-bars provided with eyes, which fitted upon the handles and were shrunk thereon. This device is shown in letters'patent No. 246,584, dated August 1881, to William C. Wren, to Joseph Amlin. Its method of construction was defective, Because the barrows could not be "knocked down," or taken apart, and thus economically transported in quantities. The improvemerit COllsisted,in brief, in dividing the eyes. The eyes, as shown in the drawings, are composed of curved or semi-circular portions upon the ends of the cross-bars, and movable U-shaped portions ur clips, which are pressedtowal'ds the cross-bars, and, being held in position by one or more bblts, clamp the side-bars in place. The specification says that ':the part of the clips or eyes that encircle the sidebars or handles must be fonned somewhnt smaller than the outside diameter of the handles, so that, when the bolts are screwed tOgether, they will draw the ey.es tightly around the handles, thus making a rigid and substantial fra,me, with or without the tray." The claims of the patent are as follows:
"(1) In a wheelbarrow, the: combination, with the metal tray, of the crossbars, C, D, for supporting and ·strengthening the bottom of the same, and the side-bars or handles.,B; the cross-lmrs being provided. willI eyes of adJusta-