EAGLE MANUF'G CO. V. CHAMBERLAIN PLOW CO.
In view of this there was no inventive skill required to decorate a sur· face by applying thereto a perforated rosette tile, glazed to its base, and secured by a pin or screw passing through a hole in its center or elsewhere. For these reasons, and without entering upon the other defenses raised, the bills should be dismissed.
CHAMBERLAIN PWW Co.
(Oircuit Oourt, N.
n. Iowa, E. n.
PATENTS FOR INVENTIONs-INFmNGEMENT-CULTIVATORS.
Letters patent-No. 242,497. to E. A. Wright, for an improvement in cultiva· tors. the object of which is to assist in raising the beams. by means of a combination of a wheeled frame, and vertically rotating beams. with lifting springs so attached that a greater lifting effect is produced as the beam is elevated. without having the springs exert any material lifting strain while the cultivator is in operation, are infringed by a device consisting of a spiral spring connected with an arched axle. and with a shoulder upon the sleeve, to which the drag-beam is attached, so that when the beam is in its operative position the spring exerts no lifting effect. but, when the same is elevated. the shoulder is rotated forward, and the spring operating on the shoulder as a lever assists in raising it. · . On a bill to restrain the infringement of a patent foran improvement which constitutes but a small part of the machine, when the question of ment is open, and defendant avers that he had no knowledge of complalD' ant's patent before suit brought, and that he obtained no aid from the invention specified in it, and for some years has manufactured the improved machines. a preliminary injunction will be refused on condition that defendant files periodical statements of the number manufactured since suit brought, and deposits with the clerk a reasonable royalty for each, and files a bond for performance and for payment of damages.
In Equity. On motion for preliminary injunction. Bill by the Eagle Manufacturing Company against the Chamberlain Plow Company to restrain the infringement of letters patent No. 242,497, issutd to E. A. Wright, Julle 7,1881. Nathaniel French, for complainant. Powers &: Lacy, for defendant.
SHIRAS, J. The complainant corporation is the owner ofletters patent No. 242,497, issued to E. A. Wright, for an improvement in walking cultivators, and in the bill·herein filed avers that the defendant corporation is manufacturing and selling cultivators containing the improvement covered by the Wright patent in violation of the rights of complainant, and, in aid of the relief prayed in the bill, a motion is made for the granting of a preliminary injunction. In .the cases of Manujact'lJ,1'ing Co. v. Bradley, and Same v. Moline, M. &: S. 00., 35 Fed. Rep. 295, 299, the Wright patent was sustained as valid, and the defendants were restrained from infringing th,e same. In the light of these decisions it is not nee-
essary to reinvestigate the validity of the patent against the allegation of want of patentable novelty th,erein. On the question of infringement, an examination of one of the cultiV/l,tors manufactured by the company shows that it utilizes the conception of exerting a lifting effect upon the drag-beams of the cultivator, through the operation of a spring connected with the arched axle, and with a shoulder upon the sleeve to which the drag-beam is attached. The spring is in the form of a spiral, and when the drag-beam is in its operative position the shoulder and spring are substantially in a right line above the horizontal end of the axle, and consequently the spring, though then at its'greate'st terision, does not exert any lifting effect upon the drag-beam. When the drag-beam, however, is lifted, the shoulder to which the spring is attached at its lower end is rotated forward, and the pressure of the spring operating on the shoulder as a lever, tends to raise the ,drag-beam. In the case of Manufacturing Co. v. Moline, M. & S. Co., Bilpra, the patent issued to William Evans, No. 266,123, was considered, and held to be an infringement of the Wright patent. In the Evans combination is found a spiral apring attached to the upright of the arched axle; the lower end being attached to an arm or shoulder 'upon arock-shaft placed either in front or in rear of the main axle, the lock-shaft being fastened to or connected with the drag-beam. In both 'the Evans combination and in that of defendant, we finei a spiral spring attached to the upright of the arched axle, operating upon a projecting arm or shoulder which, acting as a lever, when the free end of the dragbeam is lifted, aids in raising the drag-beam. ,', In the Evans combinaiion the arm through which the sprillg acts is attached to the rock-shaft because the drag-beam is connected therewith. In defendant's combination the arm or shoulder through which the spring acts is attached to the sleeve through which the axle operates, because the drag-beam is attached thereto. These differences are simply modifications in the mere mode of attaching the lower end of the spring, the resulting effect being the same. If the Evans combination is an infringement of the Wright pat,ent, it is impossible to avoid the conclusion that the combination used by defendant is likewise an infringement. On behalf of defendant it is asked that, in case the court should be of opinion that the cultivators manufactured by defendant are an infringement, the defendant be allowed to give security, and be permitted to continue its business until the final hearing. It cannot be said that the fact " of.infringement is established beyond question. The case is not one , wherein the defendant admittedly is using the device or invention claimed by complainant, but denies liability on the ground alone of the invalidity of complainant's patent. Admitting the validity of complainant's patent to be fairly established by the prior decisions, still the question remains whethll:r:thl'l defendant's combination is the same as complainant's in such as to".bfj an infringement. This question has not been passed upon in any of the prior decisions, and it cannot be finally determined until the hearing upon the merits. In the 'answer filed the defendant avers that it had no knowledge of the existence of the patent to Wright until
CO. V. CHAMBERLAIN PLOW CO.
this suit was brought, and in the affidavits filed it is shown that the defend· ant entered upon the manufacture of its cultivators without aid from the Wright invention. These facts of course do not change the fact that such manufacture may be an infringement, but the same have weight upon the question whether the preliminary injunction shall at once be issued. It furthermore appears that the Wright patent was issued June 7,1881, and by the affidavit of E. P. Lynch, the president of the complainant com· pany, it appears that the defendant has been for some years past engaged in the manufacture of the cultivators which it is now claimed are infringements on the rights of complainant. It may well be urged, therefore, that the defendant company was not bound to know or assume that the complainant objected to the manufacture of the cultivators of the style made by defendant, until this suit was brought. The patented improvement forms but a small part of the cultivator, and to enjoin the defend. ant now from the sale of those it has manufactured, would entail a very serious loss upon the defendant, out of all proportion to the damage to complainant. Under the circumstances of the case, part of which are above suggested, and in view of the fact that defendant offers to account for all cultivators now on hand or manufactured containing the alleged infringement, and to deposit the sum of 50 cents for each machine as a reasonable royalty thereon, the order will be that, if. the defendant will, within 15 days from the 13th day of December, 1888, file a written statement showing the number of cultivators having the infringing device attached thereto, which it had on hand or belonging to it on the 9th day of August, 1888, the day this bill was filed, together with the number it has since and shall deposit with the clerk of this court 50 cents for each of said cuitivators, and shall also file a bond in the sum of $2,500, with good and sufficient surety or sureties, to be approved by the clerk of this court, conditioned that the defEmdant wiI). well and truly perform all the conditions of this order, and also pay all damages and costs that may be awarded against it, if any, upon the final hearing of this cause, then the writ of preliminary injunction shall not issue until further order of the court or judge thereof; but should the defimdant fail or refuse to give sard bond and file said statement within the time fixed herein, said writ of injunction shall issue as prayed for.' ItahaU further be the duty of defendant, as one of the conditions of this order and bond, to file with the clerk of this court, every three months, beginning with the 15th day of March, 1889, a statement in writing showing the further number of cultivators by it manufactured, containing the device alleged to be an infringement of the Wright patent owned by complainant, from and after the date of the last statement filed, and further to deposit with the clerk of this court the furthersum of 50 cents for each machine so manUfactured; such statements to be filed until the final ,hearing of this cause. The sums of money so deposited shall be held by the clerk in the registry of the court, to be disposed of according to the rights oHhe parties as finally adjudged by this court. '
MARVIN tI. GO'I.'SHALL.
(Circuit (Jourt, D. Minne8ota. Decembllr 24,1888.;
PATENTS FOR INiTENTIONS-COllffiINATION-NOVELTy-DRAUGHT EQUALIZERS.
Letters patent No. 172,756, issued January 25.1876, to Richard M. Marvin, for a draught equalizer used in the attachment of three horses to harvesters and other machinery, describe a combination. some of the elements of which were to be found in the device described in letters patent issued December 19,1865. to Edwin J. Toof for the same purpose, while others were to be found in the device described in letters patent No. 68,673, issued September 10, 1867, to H. J. Wattles for a similar contrivance. It did not appear that the exact combination of the Marvin patent had been known prior to his invention. but it was clearly shown that it was one of merit. and that its results were beneficial. Held, that it was not void for want of patentable novelty.
At Law. On motion for new trial. For hearing and statement of case, see 36 Fed. Rep. 314. Oharle8 S.C!areinB, for plaintiff. Woods, Hahn & Kingman, for defendant.
SHIRAS, J. Upon the hearing of this cause in September last, ajudgD;lent for damages was awarded against defendant for a nominal amount, the effect thereof beIng a holding that a patent issued to plaintiff on the 25th of January. 1876, for an improvement in draught eljualizers when used in harvesters and other like machines, was a vaEd patent, and not void for want of patentable novelty. The motion for new trial is upon two grounds: First, that the conclusion reached upon the case as presented at the hearing is erroneous; and, second, that-defendant has since the trial discovered the fact that on September 10, 1867, there was issued to H. J. Wattles a patent, No. 68,673, the specificatiQns of which disclose a combination which shows that Marvin's alleged invention had been anticipated and made public. Counsel have reargued the question of patentable novelty or the lack of it in the Marvin combination, not only as the same was presented by the evidence on the hearing, but in the light of the matters appearing in the drawil1gs and specifications attached to , the WatUes patent. The opinion of the court upon the hearing will be fouq.d in 36 Fed. Rep. 314, to which reference can be made for a de· of plaintiff's combination and the uses and purposes thereof. '. In the Wattles combination is found an evener and a spreader. The former is not connected with the pole or tongue of the machine, but is attached by hooks directly to the axle of the machine. As a whole, the combination therein presented does not resemble the Marvin combination as nearly as does that found in the patent issued to Edwin J. Toof, which was fully considered in the opinion originally filed herein. If the latter does not anticipate the Marvin combination, then certainly the Wattles invention does not.. But counsel for defendant argue that the Wattles machine shows a spreader attached to the tongue, and that, by taking it out of the Wattles combination and combining it with the Toof invention, we would have the Marvin combination, and that to do this