(C'i'l'cttit (Jourt, S.D. New 'YO'I'k. January 8, 1889. '
One who acts soleiy as employe, and has no pecuniary intertst in the product of his labor; 'llnd is simply employed'by the oW,ner to supervise the work of general repair, cannot be charged as &n· infringer on account of .his' nection with the machine so repaired. . : '," The licensee ofll. patented machine has the to replace parts Whi.qh wear out, and.' so'long as the identity of tbe machme is not destroyed, to discard useless parts and add new ones to improve its action. ' ' ,
LICENSEE. , ," "
In E;quity. Bill for infringement of patent, brought by Hugh Young and the Young & Farrel Diamond Stone--Sawing Company against Emantiel Foerster. On. final Edwin H. Brmwt, for (Jomplainants. Arthur 11. BrieBen, for defendant.
CoXE, · This is an action of infringement, based' upon letters patent" J. No. 224,760, granted to Hugh Young, February 17, 1880, for an, improvement in machines for sawing stones. In August,' 1879, , Smith purchased of Young, for $4,700, a machine embodying the j>atented features, and received 8 license to operate itun'der patlmts theil owned by 'Young; and under all patents for improvements on the same which thereafter might be owned by him. On' the 8th of3'uly, ,1882, Smith entered into another agreement whereby, for the additional aum. of$300, he received a license tonse the machine according to in suit; whichhad·been granted since the purchase, and to embody 'any improvement covered ,by that 'patentor any other pateilt owned orc6ntrolled by Yonng. During the period in controversy Smith was the owner of the machine. The defendant was in' Smith's employ, receiVing $3.50 daily wages.. He never used the machine, except as an employe ' of Smith. He had no interest in or control over it. Soon aftei it 'wa's purchased, it broke down, and since that time has been freq.ueP:tlfrepaired. No m8<lhine similarly constructed can run for more thana month without undergoing repair, which involves putting in new parts' andchangtng oldon.e!!. In the spring and summer of 1886, 6n'a¢cbunt' of the removal of Smith 's place of business, a more thorough' 6verh'apling was necessary. At that time new were put in; the old (mes being worn out. The crank-shaft ahd slime' littIebolts, pins, and nuts were worn out also, and ·new ones, :wei'e stituted. The slides on which the saw-sash runs were two feet, and all the attachmentsforimparting a lift or pushmo:tf61;(t(;>ihe blade were left off. Lilt rIlotion is now im parted to the sash by llIdhcline at ea.chend oftheguide bars. The defendant had superYisibrtof this work as employe ,of Smith. ,The complainants 'contend thlitWhit"
was done in 1886 constitutes an infringement. Many of the parts just mentioned, namely, "thelarge screws at the sides, the nuts thereon, the sash and crank-shaft,» had been renewed from time to time prior to 1886, with the knowledge of the patentee. The defenses are: First, that in doing the acts of which infringement is predicated the defendant acted merely as the agent of John R. Smith; second, that Smith had a right to use and repair the machine, and that the work done by the defendant was necessary to put it in order; third, that the patent is void for lack of novelty. The defendant did not use or vend the patented machine, and it can hardly be said, upon this evidence, that he made it, assuming now that an entirely new machine was constructed. The defendant acted solely as agent for Smith. He received his daily wages only. He made nothing by the transaction. The compllj.inants expressly waive an accounting. The parts renewed were purchased of outside dealers, and put into the machine by their workmen.· Very.little of the manual labor was done by the defendant. He acted simply as superintendent. AU that he did was done for Smith's benefit, and under Smith's directions. He was there to protect Smith's interests, and see that the work was properly done. This was all. The proof fails to establish infringement, and brings the case· within the following authorities: H1j.,8sey v. McCormick, 1 Fish. Pat. Cas. 5.09; WarthingtQn, 30 Fed. Rep. 465; Nickel Co. v. Worthington, 13 Fed. 393; Delano v. Scott, Gilp. 498. But is any. one responsible as an infringer? Had not the owner a right repair and improve the machine in the manner stated? The machine had a capacity to saw a stone 12 feet long and 5 feet high. It was bulky and expensive. Smith paid the patentee $5,000 for it, and the right to operate it with all the improvements covered by all the patents controlled by the complainants. When the machine broke down, as it frequently did, Smith was not required to abandon it, and procure a new one. He was at liberty to repair and improve it within the limits of his contracts. These repairs, which were often necessary, were made with the consent of the patentee. The repairs complained of consisted, principally, in restoriqg portions which were worn out. True, other portions were taken off, or thllir use discontinued. .But one who has a license to use the whole of a machine does not· become an infringer because he uses a part oply. So long as the identity of tb-a machine is not destroyed, its owner has a right to repair it,-to discard,useless parts, and add new ones, which may improve its action. These alterations, though they changed some- . what the mode of operation, were rendered necessary, because equivalent· had- become worn out. T4eir addition did not make it a new machine.. By putting the old macl}ine in working order its owner did what v. Brewing Co., 8 Fed. Rep. 322; Chaffee he had a right to do. v,Belting Co., 22 How. 217, 223; Wilson v. Simpson, 9 How. 109; Cartridge Co. v. Cartridge Co;, 2 Ban. & A. 595; Plow 00. v. Robinson, 35 Fed. Co. v. Founrl,ry 00.,34 Fed. Rep. 393; Aiken v; Rep. 502; Prj,n,t Works, 2 Cliff.:435. It is, of course. unnecessary to pass upon the defense w,llic;h disputes the. validity of the .patent. The bill is dismissed.
TIMKEN tl.· OLIN.
TniKEN tl. OLIN
(Jowrt, $. D. Ohio, W. D. June 111, 1888.)
PATENTS FOR INVENTIONS-VALIDITy-CARRIAGE SPRINGS.
Letters patent No. 197.689, issued November 27, 1877, to Henry Timken. for an improvement in carriage springs, which consist in the attachment of springs to the bottom of the body of a buggy or wagon, at the sides and crossing the bottom of the body, and connecting with the side-bars on the oppo· site sides of the body, are not void for want of novelty. Letters patent No. 239,850. issued April 1, 18&1. to Cyrus W. Saladee, for improvements in road-wagons, which consist of a spring platform of flexion springs arranged in pairs,-the inner, heavier ends of each pair being con· nected side by side to the central portion of the body or object supported, and the flexion portion of each spring curving downward from the center, and then upward to its connection with the spring,-are valid. . Letters patent No. 157,430, issued December 1,1874, described an improvement in vehie<les, consisting in the employment of two independent crossed leaf metal springs, the ends of which were rigidly secured to the opposite ends of a cross-piece attached· to the body, each spring- being formed or pro" vided with a socket, and the two sockets meeting each other at the center. of: the cross-piece. so as to enable the axis or pivot-bolt to be passed tllrough both sockets. etc. Reissued fetters patent, January 25, 1881, described each spring as "preferably" formed with a socket, and added a claim for two springs. in combination with the body and side-bars, crossing eachotheuide by side, and attached to the cross-piece. Held, that the reissue was not an enlargement; The foregoing patents are not anticipated by the compound couplings supporting the driver's seat. shown in President Washington's coach, as that was nothing'more than an old-fashioned thorough·brace, intended "to prevent as much as possihle the side, end. and upward pitching of the. SC1Lt. which it failed to accomplish, and which complainant's inventions do accomplish more effectually than anything that preceded them.
SAME-ANTICIPA'l'ION-PItESlDENT WASHINGTON'S COACH.
Wm. M. Eccle8 and William Hubbell Fishe:r, for complainant. Wm. H. Doolittle and Goo. J. Murray, for defendants.
SAGE,J. The complainant's suit for infringement is based upon three patents. (1) No. 197 ,689, to Henry Timken, for improvement in carriagesprings, dated November 27,1877, application filed October 27, 1877: The invention consists, as stated in the specification, in the of springs to the bottom of the body of a buggy or wagon, at the sides, and .crossing the bottom of the body, and connecting with the side-bars opposite sides of the body. The claim is: . "In combination with the side-bars, C, C, and body, D, the springs, G, G, attached to the under side of the body at opposite sides, then crossing each other, and connected to the side-bars, at opposite sides, substantially as herein set forth."
(2) No. 239,850,to CyrusW. Saladee, forimprovementsin road wagon, dated April!, 1881, application filed February.7, 1881. This invention