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-
ble size and bolts by which said handles maybe detachably clamped therein, , substantially as set forth. (2) The frame for a wheelbarrow, consisting of tbe front and rear cross-bars. 0, D, for supporting and strengthening the bottom of the tray. the substantially parallel side-bars or handles, B; the cross-bars being provided with eyes of adjustable size for the reception of the handles, and bolts for detachably clamping the handles,substantially as set forth. " The defendant makes wreelbarrows under letters patent No. 355,245, dated December 28, 1886, to Joseph Annin. The cross-bars of this barrow are straight, flat ,bars of iron, which project, beyond the halJdles. Each extremity is provided with a U-shaped clip for clamping the handles, which clip is provided at one end with a claw, which passes around the end of the cross-bar, and at the other end with a flange which is perforated for the reception of a bolt which secures the clip. The question of infringement depends upon the construction of the Benjamin patent, and,in my view of the case, is the only question which demands consideration,. I therefore omit· discussion in regard to the authorship or the patentability of the invention. The eyes upon the crossbars of the William C. Wren patent were integral with the cross-bars, and, having been heated, were slipped oyer the handles and were shrunk thereon. The form of the improvement which is described in the patent consisted in making one portion of the eye a detachable clip, which was fastened to the cross-bar by a bolt or bolts, these bolts drawing the eyAtightlyaround the handles, and thus enabling the eye to be called "adjustable." The Benjamin patent admits the fact that clips and clamping eyes had been used in various situations, and it is manifest from the history of the art that they had been used to fasten the tl:1bular metallic handles of a wheelbarrow to its tray, and to secure the metallic transverse springs of a carriage to its wooden side-bars. Inasmuch as in no pre-existing device detachable eyes had been virtually a part of the cr03s-bars, the effort is made to have the patent broad enough to include all detachable and adjustable eyes, altbough not integral with the crossbar, which are secured to, and, by means of the fastening, Can be called, in effect,a part of the Anyone of these various eyes can be considered adjustable. because the interior diameter of the eye may be varied by screwing or unscrewing the bolts. The claims of the patellt are also broad enough to include a split eye, which is integral with the cross-bar, the several parts being united by bolts, which detachably clamp the handles in the cross,bars. Neither ono of these constructions is permissible, because the invention simplycollsisted in dividing the eye ofthe -Wren patent, in which handles and .crosi:l-bars had bAen united by the eyes of the cross-bars. and making one portion of the eye detachable. Detachable clamping eyes, which screwed the tray to the handles, were old. An eye which was part of the cross-bar and clamped the handle was old. Assuming that there was patentable invention in dividing this eye into two parts, and making one part detachable, it is improper to extend the patent so as to make it include all detachable clips which encircle the handles and clamp them to the. cross-bars. That was not
THE :NEW YORK.
the invention of the patentee, who sought only to improve upon the conception of the pre· existing Wren patent. The invention consisted in the manner in which the eye was constructed, by which method a portion of the eye was integral with the cross-bar, and does not include detachable clips which are secured to a straight cross-bar. There is no infringement. The bill is dismissed.
THE NEW YORK} . THE NORWICH. CoRNWALL
THE NEW YORK.
SAME V. THE NORWICH.
(District Oourt,· S. D. New York. March 24, 1888.)
SHIPPING-LIABILITY FOR TORT-INJURIES FROM SWELL OF STEAMER.
The duty of a passing steamer to guard against the injurious effects of her swell and suction upon the. smaller craft in rivers and harbors. has often been enforced in courts of admiralty. The steamer New York. going up the Hudson river against the tide, and the steam-boat Norwich. coming down with a tow, passed each otherin the chan· nel opposite to where libelants canal-boat lay along the shore taking in cargo. The suction and swell caused the latter to strike the bottom, causing damage, for which this suit was brought. The channel at the point was about 250 to 300 feet wide. and the steamers passed port to port. both moving slowly. The New York was notitled before reaching the place of the presence of the canal· boat by the whistles of a steam-tug lying near. and her pilot recop;nized the fact that he must pass close to her. Held, that the Norwich, going slowly with the tide, committed no fault, and the libel against her should be dismissed. Beid, that it was the duty of the New York, in the situation which her pilot foresaw. to have waited below the landing until the Norwich had passed. so that the New York could have gone further to port; or else to have stopped her wheel entirely while passing libelant's boat; and for her failure to do either she should be held liable for the damage. The Norwich's costs of trial were also imposed on her, as she opposed the libelant's offer to discontinue as to the Norwich, and required that she be retained under the tlfty-ninth rule. '
In Admiralty. Libel for damages. Hyland & Zabriskie, for libelant. R. D. Benediit, for the Norwich. O. & A. Van Santvoor(Z, for the New York.
BROWN, J. On the 16th of August, 1887, the libelant's canal.boat, W. F. O'Rourke, was taking a cargo of ice at a landing by some spiles Mould's ice-house on the east driven close alongside the dike side of the Nor,th river, a little below Greenbush, andubout a quarter of .a. mile above Dow's point. At 6 P. M., when her cargo was nearly completed, she was drawing about six feet of water in a depth of about seven
. I RtliJ01'tcd t.\' ElhV:.Ll'd G. BCllcuict, Escl.· of tho New York bar.