had been a novelty, or if the means by which the cream was superfrozen had been new, and the placing it in metallic moulds forthe purpose of additional freezinp; had been a new idea, the patent would have had a very different foundation; but the patentee would not claim that his cream, before it was placed in the boxes, was a new and patentable article. The patentability attaches when the separate pbrtion of cream is placed in its refrigerated box for transportation or preservation against heat, and thflre seems to be,no more invention in this method of furnishing the article to the consumers than there is in any selection of attractive and convenient forms by which an article is made salable, and is brought within the reach of the public. Glue 00. v. Upton, svpra. The lack of the element of invention is fatal to the validity of the patent. The bill is dismissed.
STREAT "'. WHITE
(C'Wcuit (Jourt, S. D. N6lJJ York. July 2, 1888.)
PATENT8 1I'0R INVENTION8 TEXTILE ]IARRIe8. PATENTABILITY- INVENTION-DE8IGN PATENT 1I'0R
Letters patent No. 16,875, issued November 10,.1885, to George Streat, for a design for printing textile fabrics" consisting of stripes of solid block of color parallel to and alternating with stripes crossedapight angles bf alternate dark and light lines blended into each other by shading, "so as to Imitate the woven fabric commonly known as ·seersucker,''' are void; it appearing that though the patentee conceived the idea of the imitation, which was not new. the actual invention of the method of producing the imitation by blending together the cross-lines by shading, which was alone novel, was entirely the wOl'k of the designer and engraver in the factory of one Gilmore.
In Equity. On bill tf> restrain infringement of letters patent. Samuel R. Betts, for plaintiff. Reuben L. Roberts, for defendant.
SHIPMAN, J. This is a bill in equity to restrain the defendants from the infringement of design patent No. 16,379, dated November 10, 1885, to George Streat, for n design for textile fabrics, specially to be employed in printing calicoes and similar fabrics. The leading feature of the design consisted in a stripe of a. solid block of color, or in the form ofdots or pin-points applied closely together, "parallel to and alternating with a stripe which is crossed at right anglts by alter11ate light and dark lines, 'which are blended into each other by The general color or tint of the stripes is immaterial. The claim is as follows:
"The de8ign for textile fabrics herein shown and described, the same con8isting oftbe stripes, a, a, parallel to and alternating with the stripes, b, b, the latter being crossed at right RDIlIes by alternate light and dark lines, which are blended into each other by shading, substantially as deseribep."
This was intended to he and was an imitation in printed cloths of a wellknown and popular woven fabrie, called "seersucker," which presents a
STREAT 11. WHITE.
smooth stripe parallel and alternating with a ridged or crinkled stripe. The object of the alternate light and dark cross-lines in the stripes, b, b, was to tepresent the crinkledefl'ect of the corresponding woven stripe in the seersucker. The idea of iniitating. in printed cloths, the woven seersucker was riot a new one at the date ofthea116ged invention. It had frequently been attempted. Alternate light and dark cross- bars, at right angles with the stripes, to imitate the crinkled appearance of the ridged stripe, had been used; but I assume that the blending into each other of these lines by shading was novel. The design quickly attracted the fancy arid the favor of the public, an.d became very popular. The point in the case which I deem oi most importance and of most danger to the patent is in regard to the fact of invention by Streat. He conceived the of imitating a seersucker fabric, and of having one stripe crossed at right angles by cross-bars, in which there was no novelty, and then submitted the project of an imitation to Mr. Gilmore, the manager of a factory for printing cotton goods, with the request that he cause it to be produced; which was done by the designer and engraver in Gilmore's factory. The patentee now"desires to represent, in general ancI somewhat vag1Je terms, that he conceived the idea of the blending together of the cross-lines by shading, and desired Gilmore to have the idea carried out. If that had been the fact, he would have created a design which contained "a new impression or effect, produced by an arrangement or configuration of lines which introduces new elements of color or form," (Packing Co. v. Rubber 00., 24 Blatchf. 345,30 Fed. Rep. 785;) and, unless such imitation is within the engraver's customary firt, I should not have been deterred from conceding to him a position as inventor by the fact that he was imitating an old woven fabric. Other persons had imitated it with varying success, but the patent shows a new combination of lines by which it was successfully reproduced. The difficulty in this case is to know what the patentee created; but his correspondence with Gilmore, before the design had been made or sketched by the engraver, is very significant upon this subject, and shows to my mind that he invented nothing except the idea of an imitation of a seersucker, and that ception of the method by which the result was to be attained was entirely the work of the designer. The first communication of Streat to Gilmore was in a conversation on July 28, 1885. On July 29th he wrote Gilmore follows: "I herewith inclose a tintype which I had taken to-day from the sample of the seersllcker which I retained after giving you the other half. I think it shows up the crinkle in the cloth plainly, and have no doubt your designer can imitate it which, if he succeeds, will, I think, lead to a good busines8 in the goods. I think we.should start right by having a good imitation in effect. Please let me hear from you as soon as possible in regard to this matter, as the goods will be wanted just as soon as we can get them out." On July 30th, he wrote Gilmore again, as follows: "In re/o"tard to the printed seersuckers I am enthusiastic. If the engraVing is well done as an imitation of the woven, I am satisfied we can sell a large quantity. as we will give g90d goods and at a popular price. I inclose you
small sample Ctf the dog's head, horse, horseshoe, as showing tlie class of workwe want, i. e.. tim·ness. Can't you send me a sketch (before engraving) showing your desigrlel"s idea or conception of how the imitation should bell Just as soon as we can get an Idea how it will look, will forward gray goods at once, as the trade are now ready to give orders. Please let me hear from you by return mail, if you can, as to how the matter is progressing," etc. These two letters show that Gilmore and the designer were furnished with a sample of a seersucker, and with CJ photographic copy of the sample, and were told to imitate it,and that the way in which the imitation was to be effected was left with the designer, who was solely responor sible for a successful result, and to whom the task of finding an conception of the method of imitating the crinkle was solely committed. 'the case does not contain the facts which generally come courts l1pon the subject of joint or sole invention. It is not that of an inventor and a who puts into form the inventor's new idea. The idea df Streat was old. Had it been new, the facts would be different. The mventionconsisted'in the new and successful way by which the old idea #as made effective. Streat was the originator of nothing novel, except itidirectly. He asked the designer to furnish an accurate imitation of the s,eersucker; and, if invention was. necessary, to invent an imitation, and request was complied with. The bill is dismissed.
EUBERWEG '/I. LA COMPAGNm GENERALE 'l'RANSATLANTIQUE.&
(IJiatrict Oourt, E. D.New York. May 23,1888.)
ADMIRALTy-JURISDICTION-PIER IN NEW YORK CITy-EASTERN DISTRICT 01' NEW Yon.
A;pier extending into tbe North river from the city of New York is not wLtllin the jurisdiction of the district court of the United States for the East· ern dis.trict of New York.
PROCESS-FOREIGN ATTACHMENT-MARSHAL'S RETURN.
On flling dIe libel in this cause, process was iSRued, with a clause of foreign " . attachment. The marshal returned that respondent could not be found within the jurisdiction, and tbat he bad therefore attached one of its st4>amers. Res'pondent'sgeileral agent thereupon appeared, and. having given bonds, moved to set aside the attachment, stating in his affidavit that he could have been found at his office on pier 42, North river, west of the bulkhend, and therefore asked that the marshal's return, together with the attachment and .the bonds givenunder'jt, be set aside. The liffidavit contained no statementt)1at the marshal had made no proper search for respondent before attachmg the .steamer. Held, that sp,rvice of process on such pier would not have been . withinthejurisdiction of this court; hence the marshal's return was not fall· sifled, and the attachment, and bond given under it, were valid.
In Admiralty. Motion to set marshal's return, attachment of vessel, and stipulation given on such attachment. f BiddleJc Ward, for libelant.
"'R.eported by Edward G. Benedict,Esq., of the New York·bar..