: DICKINSON fl.
sideration of,all the evidence, you can confidently say that yoq are not sat: isfied of the defendant's guilt" you have a reasonable doubt. But if, after such impartial comparison and consideration of all the evidence, you can truthfully say that you have an abidingconvictioll of the defendant's guilt,such as you would bewilling to act upon in the more weighty and important matters relating to your own affairs, you have no reasonble doubt." As I have before informed you, but two counts remain in the inq.ictment,...,...the second and third. Where an indictment contains two counts, the jury may convict und"er both, or acquit as to both, or, they may acquit as to one count and convict as to the other. If you should find the defendant guilty as charged in both counts, your verdict will be: "We, the jury, find the defendant guilty as charged in the second and third counts of the indictment." If you find him not guilty as to both counts, you will simply say: "We, the jury, find the defendant not guilty." If you find him guilty under one count, and not guilty as to the other, you will so say by your verdict, and distinguish under what couut he is what count not guilty.In preparing your verdict, rememguilty, ber the instructions of the court referring to your finding under the third count of the indictment, and found on a former page of the charge, and frame your verdict accordingly. It is useless, gentlemen, for me to say to you that this case is one of great importance, both to the government and the defendant, and I therefore admonish you to scrutinize, and weigh with deliberation, the testimony before you, and a true verdict render; according to the law and the evidence. '
(Oif'cuit (Jourt, E. D. New York. April 9, 1889.)
PATENTS FOR 1NvRNTIONS-ExTENT OF CLAIM-!:NFRINGEMENT-ATOIDZERB.
In letters patent No. 282,090, July 8, 1883, to W. Kennish, the claim is for the combination of a normally flat air reservoir bulb with the main connect· ing tube between the pumping bulb and vessel from which the liquid is drawn in an atomizer, but the use of llucha normally flat reservoir bulb in a syr· inge is not mentioned. Normally flat bulbs and elastic rubber reservoirs which expanded with each stroke of the pump, were old. Held, not infringed by a syringe having a normallv flat-shaped reservoir bulb.
In Equity. Bill by Charles B. Dickinson against Russell Parker and others, to reo strain the infringement of letters patent No. 282,090, issued July '3,1883, to W. Kennish. H. A. West, for complainant. Edwin H. Brown, for defendants.
LACOMBE, J. Kennish, the patentee, under whom the complainant claims, devised an improvement, which was no doubt as applicable to
FEDERAl, . REPC,fl.TER,
as it was to atomizers. After he bad, by taking out his patent, made public the fact that the reservoir bulb through whose contractile action continuity of flow was sustained, might advantageously be made of a normally flat shape in an atomizer, the application of the snme form to a syringe could not be sustained as an invention. Kennish, on the strength of his improvement, might perhaps have insisted on a claim which should cover syringes as well as atomizers. He did not do so; however. He claimed the combination of his" normally flat air reservoir bulb" with the main connecting tube between the pumping bulb and the vessel from which the liquid is drawn "in an atomizer." The description, as well as the claim, plainly points to a combination of parts in which the flow is induced from a liquid vessel, placed beyond the airpump, by means of the expulsion of air from the pump,-an apparatus which is known as an atomizer. It nowhere describes a combination of parts in which the liquid discharged from the orifice is itself carried through the pump-bulb and propelled by the direct action of that bulb, -an apparatus which is known as a fyringe. Normally flat rubber bulbs or bags were old, though not in combination with atomizers. Elastic rubber reservoirs, which expanded with each stroke of the pump, and contracted on the return stroke, finding their contractile force in a return to the normal density of the material of which they were composed, had been used in such combination. Kennish's invention was therefore an exceedingly narrow one. It finds its patentability, if at all, solely in suggesting a useful combination of known parts, and should be strictly construed. The patentee must be confined to the ex:" press description which he has given, to the express claim which he has made; and any suggestion of further combinations which may be latent in the one and not claimed in the other, is a dedication of that which is not claimed to the public. Merrill v. Yeomans, 94 U. S. 568; Bridge Co. v. Iron Co., 95 U. 274; Miller v. Brass Co., 104 U. S. 350; Water Meter Co. v. Degper, 101 U. S. 332; Fay v. Cordesman, 109 U. S. 420, 3 Sup. Ct. Rep. 236; White v. Dunbar, 119 U. S.47, 7 Sup. Ct. Rep. 72; . Weir v.Morden, 125 U. S. 98, 8 Sup. ct. Rep. 869. As the de;: fendallts do not manufacture atomizers at all, but only use a combination of parts, which, although probably suggested by complainant's patent, was neither described nor claimed therein, they cannot be regarded as infringers. Usual decree for defendants.
PARKER II. DICltIl\SON.
et ale v.
(OWc'Uit OO'U'rt, E. D. New York. April 9, 1889.)
Letters patent No. 819.937, June 9.1885, to Russell Parker and others, are void so far as they profess to protect the combination of a reservoir with nor· mally fiat walls in a syringe. such reservoir, in connection with an atomizer, having been described in the prior Kennish patent. S. SAME. A syringe having a normally flat tube between the pump·bulb and discharge orifice. in place of a non-collapsible tube connected with a collapsible bulb, is more compact, and less expensive, produces a more direct flow, is not so liable to become fonl. may be more readily cleaned, admits of a more exact administration of small doses, and avoids all risk of the admixture of air with the injectant. Syringes thus made are rapidly supplanting the older forms. Flattened tubing was previously known. Reid, that the second claim of the patent, which covers the flattened tubing in such combination, is valid.
In Equity. Bill by Russell Parker and others against Charles B. Dickinson. Edwin H. Brown, for complainants. H. A. West, for defendant.
LACOMBE, J. This is a suit to restrain infringement of letters patent No. 319,937, granted to complainants June 9, 1885, for improvement in syringes. This opinion should Le read in connection with that in Dickinson v·. Parker, ante, 411, handed down to-day. As therein indicated, the combination, in an apparatus such as this, of a reservuir with normally flat walls was not within the field of invention after Kennish had taken out his patent. It was suggested therein, and by his failure to claim it it was abandoned to the public. All that there is of the patent sued upoq, therefore, is the. substitution of a collapsible (normally flattened) tube between the pump-bulb and the discharge orifice, in place of a non-collapsible tube, with which is connected a collapsible bag or This is anarrow combination; and, in view of the fact that flattened tubing was known before. (though not, it is true, in this combination,) I should be inclined to hold that complainants had merely devised a non-patentable change of form, were it not for the evidence of the witnesses in the trade. Besides being made more compact and inexpen!'ive by the change, complainants' syringe seems to possess practical advantages, when in use, not possessed by those in which the collapsible reservoir is distinct from the outlet tube. A more direct flow is produced; it is not so liable to become foul; may be more readily cleaned; admits of a more exact administration of small doses; and avoids all risks of the admixture of air with the injectant. This evidence, in connection with the proof that the new syringes are rapidly supplanting the older forms, is very persuasive; and the second claim of the complainants' patent must be sustained. The exhibits showing defendant's so-called "Vienna Syringes" are plainly infringements of such second claim. Usual decree for complainants.