iar with the, work iIi which such dies are employed, would understand how to do it,aI1d would do it as soon ashe found the corners objectionable. A deoree will therefore be entered dismissing the bill, with costs.
'!7. KEYSTONE BOTTLE STOPPER
Co. et al.
w: D. Pennsylvania.
: March 22, 1889.)
PATENTS FOR lNvENTIONS-REJSSUE-ENLARGEMENT-BoTTLE-STOPPERB·
.As the specification in reissued letters patent No. 7,722, June 5.1877, to Karl Hutter, though more ample in matters of an explanatory nature, contains nothing of importance which is not plainly disclosed in the specifica'tion and drawings In the original patent, No. 158,406, January 5,1875, the claim which is for the oombination substantially, etc., of the compound stop::per, the yoke, the lever, and the supporting device on the hottle by means of three. pivotal connection,s ,upon which such members can be tnrned relatively 'to eAch other without disconnecting either from tbe other, is not an enlargement of the claim of the original, which is for the bottle-stopping device com, posed ofa ,pivotal applied to neck of bottle with eccentrically hinged yoke carrying the elastic stopper and cap-piece arranged and operated substantially, etc.
Though the device manUfactured under one patent isadjudgedto,be an infringementof another patent, yet, where both patents are afterwards united , in the same person, the infring-ing .invention may'be held to be an improvement upon the other, as against' a person infringing both ' :FJ:om the grant of a patent to one to whoIIl.a patent fOfa similar devic,e has been granted there arises a presumptIon that there is a SUbstantial , difference between them; involving a patentable invention, and that the later one is for a patentable improvement on the earlier one.
A preliminary injunction should be granted in a suit to restrain the infringeFOR ,INFJUNGEME:NT-INJUNCTION-PRIOR ADJUDICATION.
8"SAKE---SUOCESSIVE PATENTS TO SAME PERSON-PREs'l1MPTION.
ment of a patent, where; in other suits for the infringement of the same patent, the patent has been adjudged valid, 'and devices identical in every mate.: rial respect with that of defendl'nt. have been held infringements.
lnEquity. 01) motion for ,preliminary injunction. Suit by Henry W. PutnaD;l and others against the Keystone Bottle.Stopper Oompanyand others. A. y. ,Br:iescn andW. Bakewell, for complainants. . WiUiam H. Doolittle, for defendants.
ACHESON, J. The bill of complaint charges the defendants with the ,infringement of tiWoletters patent for improvements in bottle-stoppers,,one granted to Karl Hutter, assignee of Charles. De: Quillfeldt, being reissue No. 7,722, dated June 5, 1877, of original patent to De Quillfeldt, ,No. 158,406, dated January 5, 1875; and the other granted to William ,Von,Hofe, being patent No. 167,141, dated August 24, 1875. The ,title ofthe plaintiffs to these patents is not controverted. ')i,,1. The.,De QuiUfeldt reissue t No. 7,722, has nine claims, but in-
P\lTNAM''''. KEYSTONE BOTTLE-5'l'OPi-ER CO.
fl'ingement of the first claim 'orily is h'ere alleged. That claim is as fdllows: "The combination, substantially as before set forth, of the compound s'topper, the yoke, the lever, and, the supporting device on the bottle, by means of, three pivotal connections, upon which the said members can be turned relatively to each other without disconnecting either one from the other!' In two suits in the Second circuit, (Putnamv. Holle:nder, () Fed. Rep. 882, and Putnam v. Von Hofe, Id. 897.) the De Quillfeldt reissue,No. 7,722, was sustained by.Judge BLATCHFORD, who also there held that the first claim of said reissue was infringed by a bottle-stopper from which the bottle-stopper made and sold by the defendants does not differ in any substantial particular. The like conclusions were reached by Judge McKENNAN in the case of Putnam v. Hammer and &tnderman, l' a suit in this court on the De Quillfeldt reissue, wherein, after full argument, a preliminary injunction was allowed, and subsequently a final injunction was granted. Moreover. in this case against Hammer and· Sunderman, in a proceeding for contempt for violating the injunction, Judge McKENNAN held that a bottle-stopper, in every material respeet identical with the stopper which the defendants manufacture, infringed the first claim of the reissue now in suit. No such new 'proofs have been submitted in this case as would warrant a different conclusiCjn, either upon the question of anticipation or the question of infringement,from that reached in the several caseR referred to; and therefore, according: to the prevailing rule in patent causes, in disposing of the present motion for a preliminary injunction those decisions should be accepted andfollowed. Manufacturing Co. v. Hickok, 20 Fed. Rep. 116: It is, nowever, strenuously urged that such effect ought not to be here given to those adjudications, because they were made before the decision touching reissues, in Miller v. Bm88 00.,104 U. S. 350, and (as is supposed) without regard to the principlE'S there enunciated; and the defendantsinsist that under. the doctrine established by that decision the reissue in suit must be held to be void. But in Putnam v. Hollender, 8ttpra, Jndge BLATCHFORD said: \ "The answer sets t"P that. the reissue covers more than was described in the specification oNhf't original patf'nt, and is notfor the same invention. There" is no evidence to this effect. and there does not appear to be any ground for" the assertion." 6 Fed. Rep. 888.
It appears, then, that the question of the enlargement of the scope of the patent was raised and considered in that case, and the determination', for the same invention as the origi-. of the court. was that the reissue nal patent:' I might therefore well rest this case upon the opinion of Judge BLATCHFORD, and the presumption that the several decrees heretofore made sustaining the validity of the De Quillfeldt reissue were fully considered and right. I have, however, given this question an independent investigation, con,fining myself, of course, to the first claim of
REPC,&TER, vol. 88.
the reissue, which is the only one here involved. My conclusions I will state briefly. While a comparison of the two patents evinces that the specification of the reissue is amplified, yet this amplification is in matters of an explanatory nature, and embraces nothing of any importance which is not plainly disclosed in the original specification and accompanying drawings. Clearly the invention set forth in the reissue is the precise invention set forth in the original patent, and the construction and mode of operation described are the same in both. Therefore, it seems to me, that the first claim of the reissue is no broader in scope than the first olaim of the original patent, which was in these words: "The bottle-stopping device, composed of a pivotal lever frame applied to neck of lJOttle, with eccentrically hinged yoke carrying the elastic stopper and cap-piece. arranged and operated substantially in the manner and for the purpose set forth." . ,·Read,·as it must be, in connection with the preceding specification and accompanying drawings,.this claim contains the same elements which a,re contained in the first claim of the reissue, combined and operating tn the same way, and producing the same results. This conclusion is supported by Reed v. C'ha8e. 25 Fed. Rep. 95, a closely analogous case in which a reissue was sustained. 2. the second branch of the plaintiffs' case,-that which relatesto the Von Hofe patent, No. 167,141,-little need be said. The stopper manufactured under that patent was held by JUdge BLATCHFORD, in the cases heretofore cited, to infring.e the first claim of the De Quillfeldtreissue. But the titles to those two patents are now united in the plaintiffs, and the Von Hofe patent, as an improvement upon the De Quillfeldt invention, may well be sustained as against the present defendants. C'antreU v. WaUick, 117 U. S. 689, 6 Sup. Ct. Rep. 970. That the defendants infringe this patent is, I think, entirely clear. Their bottle-stopper is substantially identical with the Von Hofe stopper. Whatever differences between them may exist are merely formal, and, upon the question of infringement, altogether immaterial. The defense fi,gainstthis patent mainly relied on is based on a prior patent to Von No. 163,533, dated May 18, 1875, which the defendants insist is an anticipation of the patent in suit, No. 167,141. But I do not concur in that view. From the mere grant of the patent there arises a fair presumption that there is a substantial difference involving invention b.etween the two patents, and that the later one is for a patentable improvement upon the earlier patent. The defendants, I think, have not succeeded in overcoming or weakening that presumption by anything to me. A preliminary injunction must be granted.
COVERT II. SARGENT.
COVERT V. SARGENT
March 18, 1889.j
;(Jircuit OO'Urt. S. D. New York.
PATENTS FOR INVENTIONS-INFRINGEMENT-DAMAGES-EvIDENCE.
The measure of for the infringement of a patent for whIch no licenses have been granted, is tbe profits which the patentee bas lost by rea· son of tbe unautborized sale, and he must show by satisfactory evidence to what extent the competition of the infringer has diverted sales from him. It is not necessary to show by direct evidence that he would have made all or any part of the sales made by the infringer, but be must prove facts and cir· cumstances which legitimately create the presumption that he would have made them.
In Equity. On exceptions to master's report. Action by James C. Covert against Joseph B. Sargent and George H. Sargent, for the infringement of letters patent No. 161,757, granted April 6, 1875, to complainant, for an improvement in "clasps or thimbles for hitching devices." The court found against the defendants, and directed a reference to a master to state an account of the profits, who reported, among other things, as follows: "The infringement by the defendants consisted in selling thimbles and in selling cattle-ties constructed with the infringing thimble, a rope, and a snap. These articles, as soid by the defendants. were made by a corporation atNew Haven, Conn., under the name of Sargent & Co., being the identical firm name under which the defendants carried on business in New York citv. The defendants Seem to have been the sales agents, without compensation, of the New Haven corporation, but they were largely interested as stockholders of the corporation, and received compensation tor theil' services and expenses in the form of dividends on theil' stock. The competition between the defendants and the complainant was sharp and active, and the latter, in order to meet it, were forced to, and did, reduce the selling price of their product by enlarging the discounts. Complainant's trade and customers were verted from them by the lower prices of the defendants, and wany letters were received showing a preference for the complainant's device, should they meet the lower price quoted by the defendants. In this respect the complainant was seriously damaged, and the profits from the sale and use of their device were very materially lessened by the conduct of the defendants. It was stipulated by the counsel for the defendants that the New Haven . ration made a net profit on the infringing thimbles of $1,500; and' that defendants' share therein was$l.OOO. "From the foregoing facts I find as conclusions of law-First, that complainant is i ,entitled to recover of the defendants the sum of $1,000. being the profits derivEld by them by use of the patented device; second, tllat is no reliable basis upon which to compute profits beyond the amount named in the preceding finding; third, that the complainant has been dainaged in his enjoyment of the. monopoly granted, but that the evidence presents no definite basis upon which such damages can be assessed; fou1'th, that the facts do not warrant the presumption that if the defendants had not used complainant's device. that the complainant would have sold as many thimbles and cattle-ties at the higher price charged by him, in additiun to what he did sell, as were sold and disposed of by the defendantfJ." To this report both complainant and defendants excepted. William H. King, for complainant. John K. Beach.for defenda,nts.