Wong Gan was born in San Francisco in 1868; . He is now 20 years old. His father was a merchant while here, but he labors in the field in China, although he has an interest in a small trading establishment. The petitioner returned to China with his parents when he was 14 years old, where he remained till September, 1888, when he embarked on his return voyage to San Francisco, and arrived at his destination sir.ce the passage of the exclusion act. Neither his father nor his mother has ever returned to San Francisco, since their departure in 1881. They still remain in China. While here they had no connection with the diplomatic service of the Chinese empire. A. H. Ricketts, for petitioners. John T. Carey, U. S. Atty., for the United States. Before SAWYER, Circuit Judge. SAWYER, J., (after stating the facts as above.) In Look Tin Sing's Oase, 10 Sawy. 353,21 Fed. Rep. 905, after a full argument by able counsel, and careful consideration by the court, Mr. Justice FIELD, with the concurrel1ceof the circuit and district judges,held that a person born in the United States,of Chinese parents not engaged in the diplomatic service of any foreign government, is born subject to the jurisdiction of the United -States, and is a citizen thereqf, under the provisions of the four.teenth ,amendment to the national constitution. As such citizen. it was further held that he was not subject to the Chinese restriction laws, and could not be excluded from this country. I am still satisfied with this to overrule Mr. ,l,'ulingj but, if I were in doubt, I should not Justice FIELD upon a question which he has so maturely considered, and decided. If the point was erroneously decided, then children of Caucasian parentage, born under similar circumstances, are not citizens; and hundreds of thousands have, for )rears, been, unlawfully, enjoying and 'ex:ercisingall the rights of citizens,civil and political. The decision in that Case coritrols these cases, which are similar to it. The petitioners are citizens, and are not, and they cannot be, excluded from the United States under the provisions of the late act in question. They are, therefore, illegally restrained of their liberty, nndmust be discharged, and it is so ordered. '
ECLIPSE MANUF'G CO. v.
(Circuit Court, N. D. Illinoi8. October i5, 1888.)
, The court not being able to say from common knowledge that there Is no D0:Vlllty; in the design for a radiator described in letters patent No. 17,270. ¥iantea Apri119, 1887, to Leon H. Prentice, consisting of a plan for ornament'lDg the surface of the radiator pipes by embossed or depressed figures on the upper parts, leaving the lower parts plain. thus forming two rectangular parallelo/,"rams, one above the other, ademurrer to a bill to enjoin the infringement of such a patent should be overruled.
ECLIPSE MANUF'G CO. V. ADKINS.
demurrer to such s bill for want of novelty in the alleged invention will not be sustained unless the court, from his own knowledge, has no doubt that the device is well-known,and in Common use.
In Equity. Bill to enjoin the infringement of letters patent. On demurrer. Bill by the Eclipse Manufacturing Company against Erastus V ·. Adkins and others to enjoin the infringement of a patent. Dyrenforth & Dyrenforth, for complainant. E. S. Bottum, for defendants. BLODGETT, J. This is a bill in equity asking for an injunction and accounting by reason of the alleged infringement of letters patent No 17,270, granted April 19. 1887, to Leon H. Prentice, for a "design for a. radiator." III his specification the patentee describes the subject-matter of his patent as follows: "The leadiug feature of my df'sign consists in the upright or vertical pipes' of the ralliator having a comparatively plain or even surface for a portion of their length from the bottom up, and with an ornamented surface consisting, prefprably, of embossed or d...pressed ornamentation at the top or upper part. the plain portion constituting the lower or base portion of the radiator, and the figured 01' ornamented portion constituting the top or crown of the same; tIle plain and fignred portions offsetting each other and prespnting a contrasti,ng appearance between the uppf'r and lowpr parts of the radiator. These portions of the surface give the radiator a pleasing appearance. ... ... ... Theinvention consists in the radiator composed of a series of vertical pipes or loop!l.of uniform height. having the crown or top portion of the pipes or loops ornamented or figured a uniform distance from the top downward, the pOltion' below being comparatively plain. In this manner the ornamented and plain portions of the aggregate surface of the rad:ator constitute two rectangular parallelograms, one above the other. A similar effect would be produced by transposing the plain and figured portions." And the claim is: '''rhe dE'sign for a radiator herein shown, consisting of a serif'S ot uprIght the upppr and lower portions of .tl1eir pipes or loops of uniforlll height, aggregate snrface distinguished from each other by ornamentation,so as to pl'psent rect!lngulat· figures, A, B, in contrast." Defendant demurs to the 'bill on the ground that the design described and set forth in the patent was not new and patentable at the of the a1.. 1eged invention thereof by the patentee, but that, on the contrary, the same was, Irom the common and general knowledge of the public. old and well known at the time of the alleged invention thereof by the patentee; of· all which the court will take judicial notice. That the design is not such as requires the exercise of inventive genius and effort. It was also urged ore tenus that the patent is void because the specifications do not describe the kind of figures that are to be used for the ornamfllltation of the radiator, but it is simply and baldly for the idea of ornamenting the upper or lower portion of a mdiatorwith figures of any kind, whether embossed or painted thereon. The patent law of the Umted States (section ,49,29·. Rev. St.) provides that, ,
"any person who by his own industry, genius, efforts, and expense has in'Vented and produced any new and original design for a manufacture, bust, statue, alto relievo, or bas-relief; any new and original design for the printing of woolen, silk, cotton, or other fabrics; any new and original impression, ornament, patent, print, or picture to be printed, painted, cast, or otherwise placed on or worked into any article of manufacture; or any new, useful, and original shape or configuration of any article of manufacture, the same not h3vingbeen known or used by others before his in vention or production thereof, * * * may obtain a patent therefor." In West v. Rae, 33 Fed. Rep. 45, this court sustained a demurrer to a bill charging infringement of a patent on a device for protecting woolen blankets from insects by incasing them in paper bags, on the ground that within the common knowledge it was old to wrap or incase woolens in paper to protect them from dust or insects. At the time I announced the decision in that case I stated that its effect might be to encourage counsel to demur to bills for infringement of patents in cases where they, from their special knowledge of the art, might be of opinion that the device covered by the patent was old. And my anticipations in that respect have been fully realized, as that decision has already produced in this court <Juitea bountiful crop of demurrers in this closs of cases. But the court must meet each case as it arises, and, in sustaining demurrers like this, keep strictly within the field of common. knowledge. The practical'difficulty and danger is in defining where speci.al knowledge leaves off and common,knowledge begins. The judge must always be careful to distinguish between his own special knowledge, and what he considers to be the knowledge of others, in the field or sphere where the device in question iaused. But when the judge before whom rights are claimed by virtue of a patent can say from his own observation and experience that the patented.device is in principle and mode ofoperation only an old andwell-known:device in common use, he may act upon Buch knowledge. The case'must, however, be so plain as to leave no room ::01' doubt; otherwise injustice may be done, and the right granted by the patent defeated,without a hearing upon the proofs. The judge must on all such questions vigilantly guard against acting upon expert or speci.al knowl- ' edge of his own, instead of keeping strictly within the field of general or popular knowledge. While I do not intend to lay down a rule, I am free to say that I should not feel justified in holding a patent void for want of novelty on common knowledge, unless I could cite instances of common use which would, at once, on the suggestion being made, strike persons of usual intelligence as a complete answer to the claim of such patent. ,The patent now under consideration is for a design by which the face of a radiator is to be divided by a horizontal line into two rectangular spaces, and one of them-that is, either the upper or lower of these spaces-ornamented with figures, which may be produC'ed by embossing or depressmgupon the surface, or perhaps by painting. Thiscertainly strikes me at first impression as a very close, if not doubtful, patent. I cannot, however, say from my own knowledge, or from any familiarity with radiators in common use, that it is not new. I may say thatj so far
PRESTON tI. MANARD.
as my own observation goes, I have never seen radiators ornamented in the manner shown in this patent, or by figures of any kind, either embossed, depressed, or painted thereon. Hence I am unahle to say that this design is not wholly new and original with this patentee. As to the point that this patent is void because it does not describe the kind of figures, I can only say that I,"at present, am of opinion that if this patentee was the first to invent or produce an ornamented radiator, that is, the first to design a radiator with an upper or lower rectangular space ornamented by figures of any kind upon it, then he may be entitled to a patent for such design. It may not have required a very high order of genius or inventive talent to have conceived and produced such a de7 sign, but if it was new, if it originated with him, then I cannot on demurrer say his patent is invalid. I have nothing at present before me from which I can say that it did not require study, thought, and inventive talent to produce this design. The case can be far more satisfactorily and safely, for the rights of all parties, disposed of upon proof as to the state of the art. The demurrer is therefore overruled.
PRESTON '11. MANARD
((Jzrcuit (Jourt, N. D.
PATENTS FOR· lNVENTIONS-NovFJ.Ty-LAWN SPRINKLERS-RoSE-CARRIAGE.
The first. claim of letters patent No. 183,188, issued to J. W McGaffey. for an "improvement in fountain hose-carriages. " which is for the combination of a bose-reel mounted on a truck provided with a foot or brace, by means of which the truck may be set or sustained in a vertical position, so that gle truck-shaft may, when thus Bet in an uprig4tposition, act as a fountain standard, is void for want of n o v e l t y . · ,
SAME-CONSTRUCTION OF CLAIM-NoZZLE HOLDER.
The clasp or nozzle holder. in combination with the truck and the reel,. which is the subject of the second claim of the patent. must be limited, ,Sll¢h a clasp as is there shown, the proof showing that the idea of the device to the nozzle to the standard of a lawn sprinkler was not new to the inventor. ' . The .fourth claim of the patent. which is for the combination of a B4t,screw, by which the hose-reel is locked or made rigid on the spindle or axle. and the nozzle Clasp, is not infringed by a similar machLne whose locking device is a pawl and rachet, and not a set-screw. '
In Equity. Bill for an inj unction and damages for an ment of patent. The bill was filed by Everett B. Preston againstAlpheus B. and James W. Manard. Mwnday Evarts, for complainant. C. M. Brazee, for defendants. BLODGETT, .J. leged This is a bill for an injunctioI,l. and damages for an by defendants ofpatentNo.183,188, issued to J.,W.
I The delay in publishing this opinion was occasioned by failure to receive it at the time of its rendition. ' , . .,,;' , . ",