BALDWIN V. T. G. CONWAY CO.
T. G.. CONWAY
(Circuit Court, S. D. New York. July 10, 1888.)
PATENTS FOR !NvENTIONs-PATENTABILITY-!NFRINGEMENT-POLICE NIPPERS.
Letters patent No. 152,8S2, issued January 7,1874, to Alexander P. Baldwin, for "improvements in police nippers." substituting smooth, straight bars for the links of the chain In the nippers ordinarily used prior thereto, which psss through the fingers of the officer's hand, so that in twisting the chain to adapt the nippers to prisoners having small hands or wrists, it will not pinch or injure the officer's fingers, are not invalid for want of novelty, and are infringed by letters patent issued :May 6, 1884, to Edward D. Bean, for nippers having the same device of smooth, straight bars for passing between the fingers, but differing therefrom in providing in the handle or cross·bar at one end of the chain a recess to receive the handle on the other end, thus interlocking them. in Equity. Infringement of letters patent.
G. G. Jilrelinght£ysen, for complainant. John H. Kitchen, for defendants.
WALLACE, J. Infringement is alleged ofletters patent No. 152,882, dated July 7, 1874, granted to Alexander P. Baldwin, for "improvements in police nippers," an article which isa substitute for the ordinary handcuff used by police officers and others to secure .prisoners. The invention consists essentially of a flexible band or chain, haVing· levers adapted for twisting the chain, so as to reduce the area of the loop formed when the levers are held in the hand, and thus increase the pressure upon the wrist of the prisonerj the levers being provided with rigid central bar for preventing injury to the hand of the officer using the nippers. The advantages of the improvement over the nippers previously in use, and the details of construction, are thus described in the patent: "In constructing police nippers it is customary to take a small chain of suitable length, and attach to each end of it a cross-bar similar to those used on chain halters and trace chains. When nippers thus made are used, the links of the Chain are brought between the fingers of the policeman, and tend to hurt the fingers more or less, thus preventing his keeping as firm a hold as is necessary; lind this is increased w4en it becomes necessary to twist chain, and is generally the case more or less, in order to adapt the nippers to prisoners haVing small hands or wrists. To obviate this difficulty I construct the nippers as shown in the drawing. As there shown, I make the cross-bar, B, of the usualform; but instead of forming an eye at its center for attaching the chain, C, I form it at a short bar, D, projecting at right angles from its inner side, and connect the chain to tbe end of tbis cross-bar, B,asshown in the drawing. It will be seen that with this in:provement the liability of injury of the hand or fingers of the officer is obviated, as in using it the smooth, straight bars, D, are brought between the fingers when grasping the crossbar, B, as is the custom in using them; and if it be necessary to twist the chain, the tWisting must necessarily take place beyond the end of the bars, D, thus leaving the latter straight and smooth between the fingers." The defendants are manufacturers of police nippers made conformably to a patent granted May 6, 1884, to Edward Davis Bean. It is entirely
clear that these nippers embody the device of the complainant's patent; but the cross-bar or handle at one end of the chain is provided witb a re<less which receives the handle at the other end of the chain, whereby the handles are interlocked. It may be that Bean's device is an improvement upon the device of the complainant's patent, which is the proper subject of a patent; but, however this may be, it is certainly an infringement of the patent. The defense relied upon is want of patentable novelty in the device of the complainant's patent. The devices which were well known prior to the date of Baldwin's invention are illustrated by two exhibits, which are referred to in the proofs as "Exhibit E" and" Exhibit Tower's Catalogue." In Exhibit E the chain is attached to the handle by a link longer and larger than the remaining links of the chain, such link passing through a bulge or projection upon the under side of the cross-bar forming the handle, projecting outwardly about a quarter of an inch. In the Exhibit Tower's Catalogue the cross-bar or handle has a similar but less decided projection upon the under side, and the link connecting the chain with the handle is longer than the link in Exhibit E, and is formed with more constrictive sides. Both exhibits show a nipper in which the action of the link between the fingers is one of more or less play, and is likely to pinch and injure the fingers of the person using it. One of the witnesses, a police officer, in describing the use of such nip. pers, testifies that on one occasion the hand of the prisoner whom he had arrested was covered with blood, and he was arraibned at the complaint of a person who supposed that he had cruelly used the prisoner; but it turned out that the officer was the only perEon injured, and the nippers had taken a piece out of his fingers where the chain had caught, and the prisoner's wrist had thereby b.ecome covered with blood. 'Ihis witness and others testify that it was common to have the fingers lacerated by the chain. in using the nippers. Nevertheless, such nippers were used from 1866 to 1872, before the introduction of the patented article, and were used extensively; and the circumstance thatno one seems to have thought of the apparently simple change in the form of the handle made by Baldwin, together with the immediate recognition of its utility as soon as·his device was introduced, attest that what he did was not such an obvious thing as it may now seem, and not destitute of the fertility of thought which is entitled to rank as invention. The defendants have introduced a patent granted August 10, 1869, to Phillips, as also illustrating the .prior state of the art. The police nippers of this patent belong to a different class from those in controversy, and this exhibit is of no appreciable value upon the question of patentable novelty. A decree is ordered for the complainant. I
AMERICAN BELL TEL. CO. tI. KITSELL.
AMERICAN BELL TEL.
(Oircuit Oourt, S.
n. New York.
July 10, 1888.)
PATENTS FOR INVENTIONS-INFRINGEMENT-RELIEF-DESTRUCTION OF INFI'<lNGING ARTICLE.
In a suit for infringement of patent, it not appearing that defendant had and clandestinely set about to appropriate the patented invention, and hnot appearing probable from his past conduct that he would attempt to use the infringing articles in the future, and there being nothing to indicate thatthe infringing articles could be readily used surreptitiously. to the injury of complainant, defendant will not be required to deliver them over to complainant, to be destroyed, in addition to the relief ordinarily granted in such suits. . .
In Equity. On motion for additional relief. James J; Storrow, and Henry G. Atwnter, for complainant.
It is familiar that a court of equity, besides declaring a deed void, may (and usually does) order the physical thing to be delivered up and physically canceled, as a more sure and certain way of making sure that its decree is obeyed, although in a sense this deprives the defendant of his property in the paper. But de minimis non C7.l1'at lex. In this case it appears from the confessed allegations, and is indeed obvious from the character of the instruments--'(1) That if they exist, there is great danger that they may go into other hands. where they will get into secret use, and cannot be traced. This difficulty does in fact continually arise. (2) That the physical thing is of no value except as a means of infringing 'the patent. It is not worth the labor of taking it apart to sell for junk. (0) That it is of no value because, being made as an infringement, it cannot be used after the patents have expired. Moreover, the rule that the infringing thing under such circullJstances is to be destroyed, is well settled by the supreme court, and in the Englishci>urts of eqUity. Publication cases: In Prince Albe1't ". Stmnge, 2 De Gex & S. 652, (1849.) the plaintIff had etched certain plates for his amusement. The defendant obtained the plates surreptitiously, printed certain impressions from them, and issued a catalogue of them. The court restrained him, and ordered both the impressions and the catalogue to be delivered to the clerk to be destroyed. In DrlM'Y v. Ewing, 1 Bond, 554. JUdge LEAVITT ordered the plates and the prints to be delIvered to the clerk. This was not under the penalty clauses of the statute, (the suit was In equity.) but was within the equity power of the court. Patent Birdsell v. Shaliol. 112 U. S. 487, 5 Sup. Ct. Rep. 244: "But an infringer does not. by paying damages for making and llsing a machine iI,l infringement of a patent, acquire any right himself to the futUre use of the maChine; On the contrary, he may, in Ilddition to the payment of damages for past infringement, be restrained by injunction from future use, and, when the whole machine is an infringement of the patent, be ordered to deliver it up to be destroyed;" citing Needham v. Oxley, 8 Law 'r. (N. S.) 604, (1863;) F'r-em'son v. Loe, L. R. 9 Ch. 67. (1878. ) In F'rem'son v. Loe that very eminent patent law jUdge, Sir GEORGE JESSELL, then M. R" decided that the plaintiff's patent, had been infringed, and said: "1 also order the defehuant either to deliver up to the plamtiff, 01' to destroy in his presence, any machine in his possession or power." In Needham v. Oxley, 8 Law T. (N. S.) 604, (1863.)it appeared that the defendant's large machine infringed only by the presence of a particular combinatiou· in one part, and that the machine could