POPE POPE MANUF'G CO.
GORMULLY & JEFFREY MANUF'G CO. et ale . (No. 845.)
Oircuit Oourt, N.
April 30, 1888.)
PATENTS FOR INVENTIONS-ASSIGNMENT-SINGLE CLAIM.
It is competent for the patentee to assign a single claim only of the patent, and as to that to reserve to himself a shop-right; and such an assigmnent Cllorries with it to the assignee the right to maintain a bill for an infringement of such claim so assigned.
In Equity. Bill for infringement. .Before GRESI;lAM, Circuit Judge, and BLODGETT, District Judge Coburn Thacher, for complainant. B. F. Thurst8n and Offield « Towle, for respondents.
BLODGETT, J. The bill in this case charges the infringement by defendant of two letters patent owned by the complainant corporation,one being patent.No. 216,371, granted to John Shire, June 3, 1878; for "an improvement in velocipedes;" and the other being patent No. 314:.142, granted March 17, 1885, to Thomas B. Kirkpatrick. for a bicycle saddle. The .Shire patent shows a hlJ,mmock-seated saddle, the seat of the saddle being suspended at either end, and fastened at the rear to what is termed a "hammock block," which block is fastened to what the patentee calls a "fender," a part which, to some extent, takes the place in. his structure of the backbone or reach of the ordinary velocipede; while the forward end of the saddle is fastened by a strap and buckle to a springbar connected with the bifurcated steering-head. The patent contains four claims, and infringement is only charged as to the second claim, which is: "(2) In a velocipede, the adjustable hammock seat, I, substantially as set forth." The element of adjustability seems in this device to be obtained by means of the strap and bucJde by which the hammock selJ,t is fastened atits forward end. The Kirkpatrick patent is said in the specifications to consist "in a pElculiar arrangement of front and rear springs, secured independently to ..the reach or. backbone of the machine, in conseat suspended at the front and rear from said
springs;" and defendant is charged with infringement of the first claim, (there being siX. clairris irithepatent,) is in'Dhe following words: "(I) The combination with tlleperch or backbone of a velocipede, or similar vehicle, of independent front and rear springs, secured to such perch or backbone, and flexile seat :sUspended, (jirectlyover said spring at the front and rear, respectively, substantially as set forth."
"The defenses made (1) in the to the ,Shire pstent;(2) that both patents arev:oid for want of novelty; (3) do' not 'h11ringe. '' " Complainants hold the S,hire :patent by virtue of an assignment from the pateritee', John Shire, which is in the following words: UBe it known that John Shire, of Detroit, Wayne' cOl,mty, Mich., for and in consideration of one dollar and other valuable,considerations to, me paid. do hereby' st'll and assign to, Thomas J ·· Kirkpatrick. of Springfield, Clark county, Ohio, all my right, title, and interest in,and to the letters patent on yelocipe4esgr,anteq to me June 16, 1879"and numbered 216,3::H, including infringements, relates to or covers ad,seats or saddles, excepttbe use said seat or saddle in the made by me, ullder said patent In, my business in Detroit."
from Kirkpatrick to the oomplainant. It is objected that this aSl.'ignment did not vtistthe title in Kirkpatrick, and therefore that complainant did noftake from'him any right, except the right to use one claim of the patent; and that therefore this.is not such an ass)gnment of the patent as makes the complainant the owner, und entitll'!S'it to bring suit for infringement. Defendants cite no case expressly in point which covers the case here made, .but rely upon McClurg v. Kingsland, 1 How. 202; Gayle:r v. Wilde:r, 10 How; 477; and Goodyear v. Railroad Co., 1 Fish. Pat. Cas. 626, where the rule is stated that the --assignee;ofll.<patent cannot maintain a suit for infringement unless he is the owner of the entire patent either fOf the whole United States, or some specifiop'ortion of its territory. Each claim of the patent, standing by itself,ie a separate patent for the device covered by that claim; and it seems to us that it is entirely competent for a patentee to assign the ex;. elusive right to use so much of the patent as is covered by anyone of its claims, and that this becomes an operative assignment under the patent laws to transfer the patent covered by that daim. The language of this assignmedtis broad and comprehensive enough tocomlJletely transfer all the rights the patentee to thehainmOck-seat feature of his patent, saving to the a mere shop-right fofthe city of Detroit; and hence we think lthil!l objection is not well taken. ' As ·tothequestions()f novelty and infringement, it was not new at the tilne this 'patent was issued to make a hammock-seated saddle for make such seat adjustable. Hammo.Jk-seated animal bicycles, nor saddles, llt'e,oJd, and are shown by the proof to have been well known .long to1tbe Shire patent, as is shown by defendaIits'" ExhibitBishop," which 'shows a saddle patent issued in 1859,where there was' a leather 8uspensiohsaddle Suppol'ted by spring attachments at the end; and, while 'nothingisslUd about adjustability, it is obvious that if adjustability were
POPE MANUF'G CO. J). GOR81ULL¥. &< JEFFREY MANUF'a' 00.
desired it could have been easily secured'in this Bishop, device, without invention. The same may be said of the Miller patent of 1866, the C\llry patent of 1867, and the .Hattis patent of 1875. The proof also shows that Lamplugh and Brown obtained a patent in England, in 1878. for a bicycle saddle which was suspended upon springs at each end; and, while nothing is said about adjustability, it is plain from the drawings 6 and 7 that it was as readily adjustable at the forward end as the Shire patent; Fig. 6 ,showing a connectian at the Jorward end by means apparently of an iron strap with all eye-end, which engaged with an iron hook, upon the shank of which there was a screw-thread by which this hook could be shortened,>sp: as to take up the slack; and, even if there was no special adjustibility provided for, it is clear that if adjustability became desirable o'rnecessaryit could have been obtained by ing a leatherliltrap or buckle in place of the iron strap, so as.to secure the same, kind of adjustabilitywhich is shown in the Shire patent. It ,Seeols to us that so far as the hammockseat was concerned, and making s'l19h seat adjustable by .means ftiT taking up, the slack, ot even making it mo-vabl1l upon the reach of the bicycle, it haiJalreadybeen anticipated to such an extent in the art as to make this claim of the Shire patent void, or, if not void, only valid for the special was used; and, if valid for the special device, then clearly the defendant's device by wHich the hammoOksaddle is suspended at either end, does not infringe this second claim Of the Shire patellt. The Kirkpatrick patent is described by the patentee in his specificationS as 'an' invention which "relates to that class of bicycle in which", flexible,seatis suspertded d,irectly over the saddle spring or springs, without the use of an intermediate saddle frame or tree; and my invention consists in a peculiar arrangement of front and rear springs, secured to the reach or backbone of the. machine, in connection with the flexile seat suspended to the front and rear of said springs." As has already been said in regard to the Shire patent, it was not new at the date of the patent now under consideration to suspend the flexile seat of a velocipede or a bicycle saddle from springs, or fastenings, at each end. In other words, hammock seats, as they are called, were old, and the idea of suspending such seats was shown in the Veeder patent of 1882, the Shire patent of 1879, and the Lamplugh and Brown English patent of,187;8; and, even if those patents did not show a suspension from springs ·at e-dch end of the saddle or hammock, it is clearly and certainly shown in the Fowler patent of October, 1881, where a saddle seat is shown suspended from, springs, at each end. It may be that this Kirk·· patrick patent can be sustained as a special device for the bifurcated forwardspringB which are carried beyond the steering head, and thereby the seat of the saddle is brought somewhatJurther ahead than is shown in saddles that are fastelled to springs abaft the steering head or post; but the defendantado not use that, form of bifuroatedsprings, and, if the patent can,h8i:s,ustained,:it must be for that special device, and nothing else. lienee ·we conclude that, while it is possible that this. first claim of the patent may not be absolutely void for want ofnovelty, yet it dOed
not cover the saddles used by the defendant. nor the manner in which they mount their saddles upon springs. We are' therefore of opinion that-this suit should be dismissed for want of equity.
& JEFFREY (No. 850.)
(OirOftit Oourl,W. J).lllinois.
April 80, 1888.)
PATJllNTB' FOR INVENTIONB-PATENTARILITY-NOVELTY-AxLB·BEARINGS.
The. device shown by claims 2 and 8 of letters patent No. 249,278 of NovemlJer 8,1881, to Albert E. Wallace, for an "improvement in axle-bearings for vehicle wheels;" consists of an axle upon which slide two sleeves, beveled at the E1nps which approach nearest to the middle of the axle, .110 that when these 1>erels are brought. together, or approximately together.,they will form a V-shaped groove upon the axle, the inner one of these rings or sieeves reat· ing against the hub or shell of the axle, and the outer' coming into close connlllltion with the crank. Upon the axle is fitted a grooved bearing·box, contaiqing me,tallic balls carried in said groove, and adapted to be partly reo tained' fn the groove upon the axle formed by these two beveled sleeves; and the adjustment to take up the wear of these balls is obtained by moving the outer upon the axlEi by means of a threaded screw at the outer end. Held void for want of novelty, being anticipated by the English patent of No· .' vember 14,1878, to James BatEi.
2 and 8 of letters· patent No. 280,421 of Jnly 8, 1883. to Albert E. Walla,ce for an "improvement' in for vehicles," are: "(2) Con· litiucte<dnnd comhined * * *, a two:part sleeve, a bearing·box. a row of bans; a' sorrated ftnnUlllS, and a'locking button, with an axle and hub anll flange.,(SlThe eombino.tion, in.a ball'bearing device, of./1 free bearing·box and II: Held void for wa,nt of novelty, being anticipated by tho EnglIsh patents of November 14.'1878, to James Bate, of March 22,1880, to Bown& Hug-hes, and oiMav 7,1880. to Monks. , .
,In Equity. Bill for . . C. J., and D. J. , Cobu,-n Thacher, for complainant. B. [t'. ThurBton and Offield &: Towle, for respondent.
, BLODGETT, J. In this case defendants are charged with, the infringement of patent No. 249,278, granted November 8, 1881, to Albert E. Wallace for improvement in axle·bearings for vehicle wheels;" and of patent No. 280,421, granted July 3, 1883, to Albert' E. Wallace for "an improvement in axle-bearings for vehicles;" Both these patents are for alleged iml'l'O\'emE'nts in what is known as "ball-hearing devices" for axles or journals, especially.with reference t'J such bearings when used in connection with bicycles· or tricycles; Rnd the features of such patents specially in controversy in this case are the methods by which the adjustment of such benrings is obtained. The first patent contains four claims,but infringement is only charged as to the secondaud third of said claiwiS, which are llS follows: