patent WIl8 to produce certain improvements in the surroundings and bearings of the spindle by means of which it might be covered, protected, and kept in its position, while the step is removed and replaced for any purpose, and might also be arrested at any time in its motion when desired. There is no statement that the device was intended to increase the speed of the spindles, or to decrease their gyration.s. The step is not described as having a lateral movement. Neither the Mason, nor the Buttrick and Flanders structures, are designed for use with a sleevewhirl spindle of the Allen class. The Draper patent of January 31, 1882, does not show the pin and step of Allen, and is clearly, therefore, not an anticipation. Decree for complainants.
et ale ".
(Otreuit Oourt, E. D. N61JJ York. March 6, 1889.)
PA.TBNTS FOR INvENTIONS-AcTIONS FOR INFRINGEMENT-AMENDMENT.
In a suit to restrain the infringement of a patent, complainant was defeated because he sued on one only of two patents relating to the same invention. The evidence introduced would be necessary under a bill based on the omitted patent. H6,d, that he should be permitted to amend by bringing in the other patent, and alleging its infringement, and that the case should be opened for taking additional testimony, but that relief should be granted only on condition that complainant give an undertaking to pay the expense of such additional testimony. including witness fees, mileage, master's or examiner's fees, and printing.
In Equity. Motion for leave to amend and take further proofs. The complainants in this case were defeated at final hearing because they declared only on one of the patents granted for tDeir invention. Ante, 682. Thereupon complainants moved for leave to amend the bill by declaring also upon the other patent, and charging infringement thereof, and to re-open the case for the purpose of letting in' such further evidence as may be necessary. James A. Hudson, for complainants, cited: Neale V. Neales, 9 Wall. 9; Tremaine v.Hitchcock, 23 Wall. 518; Hamilton v. Gold 00.,23 Fed. Rep. 563; U. S. v. Parrott, McAlI. 447; Hardin v. Boyd, 113 U. S. 761,5 Sup. Ct. Rep. 771. Briesen, Steel Knauth, for defendants, cited, (in addition:) Shield8 v. Barrow, 17 How. 144; Battle V. Insurance Co., 10 Blatchf. 426; SnJad v, McCoull, 12 How. 422; Clifford V. Coleman, 13 Blatchf. 210.
LACOMBE, J., (after stating th.6 facts as above.) The amendment asked for does not involve an entire change of the character of the action. It is still a suit for the infringement of the same invention as that touching which the evidence already taken was introduced. So much of that ev-
IIARTHA WASHINGTON CREAMERY BUTTERED FLOUR CO. tl. MARTIEN.
idence as was properly taken under the original bill would be necessary under the bill if amended as complainants pray. It would certainly be very unreasonable to require the parties at great additional expense to take it over again, after both patents are declared upon. No good reason is showll why the court, if it has the power, should not also allow the record to be supplemented by such additional testimony as may. be rendered necessary in consequence of the amendment. An early disposition of the case upon its merits at the least possible expense, and, so far as appears, without doing injustice to either party, would be thus secured. The authorities cited by counsel show that the granting of the relief now asked for is a matter of discretion, and within the power of this court at this stage of the case. The complainants may amend their bill by the insertion of apt words so that the same shall declare on the omitted patent, (No. 348,072,) and also charge infringement of the invention therein set forth. Upon service of the amended bill defendants may amend their answer as they may be adviRed, or may plead or demur to the amended bill. Upon the raising of an issue as to the omitted patent the case is re-opened, and additional testimony pertinent to that issue may be taken before a master or examiner. This relief is granted only upon the complainants undertaking to pay the expenses of taking all such additional testimony. (whether introduced by complainants or defendants.) Such expense to include witness fees, mileages, master's or examiner's fees, and printing.
MARTH,A WASHINGTON CREAMERY BUTTERED FLOUR Co · .". MARTIEN.
(Oircuit Oourt, E. D. Penna1l1'llania.
February 15, 1889.)
TRADE-YARkS-RIGHT TO USE-PURCHASER OF MACHINE FOR PREPARING TUB ARTICLE.
In a suit to restrain the infringement of a trade-mark complainant alleged a license to defendant to use the trade-mark and machine for manufacturing the article bearing it. and a default in paying royalties. Defendant alleged that he had purchased of complainant's predecessor machines for making the article,' and suited to no other purpose. It did not appear that such purchase had any connection with the license, or that its use was subject to restriction or revocation. On motion for preliminary injunction, held, that defendant may use the machine until worn out. and sell the article made by it, and that as the trade-mark appears to be intended to designate the article manufactured by the invention, and not that made by complainant person· ally, defendant may use it on the article so made by him.
In Equity. On motion for preliminary injunction. Suit by the Martha Washington Creamery Buttered Flour Company of the United States, Limited, against Alfred Martien, individually and as trading as the Brunswick Manufacturing Company, to restrain the infringement of a trade-mark for prepared flour. Complainant alleged a license to defendant to use the trade-mark, together with the machines covered by certain letters pat--