(Circuit Court, N.D. New Y01·k.
PA\l'ENTS FOR INVENTIONS-PRIOR USE.
July 16, 1389.)
Letters patent No. 269,535,,granted to Walter S. Ovens. December 26,1882, for an improvement in cake·machines, claims as novel a machine with an intermittingly-moving endless apron ,for carrying the tray along as the cakes are deposited thereon, combined :with a vertically-movable dqugh-hox, and a pan-supporting table, and a material box and mechanism for moving one wards and away from the other, thus depositing the material in the pan. Defendant's machine had a stationary dough,box, with a vertically-moving apron, and it had been in: public use for more than two years before the Ovens patent was applied for Held, that a bill to restrain defendant's use of his machine as an infringement of the Ovens patent should be dismissed.
James A. Allen, for complainants. John J. Bonner, for defendant.
BLATCHFORD, Justice, This is a suit in equity brought by George B, '\Vebster, Horace J. Harvey, and Francis J. Henry against Jeanette Ovens for the infringement of letters patent No. 269,535, granted to Walter S. Ovens, December 26, 1882, for an "improvement in cake-machines." Only claims 1 and 4 of the patent (there being 5 claims) are alleged to have been infringed. In regard to the subject-matter of those claims the specification of the patent says: "Cakes such as my invention is adapted for making have heretofore been made by means of a canvas or rubber-cloth bag held and worked by the hands of the operator, the bag being provided with a slllaU opening at the bottom. Into this bag a sllfficient quantity of the soft cake material is placed, the opening at the boLtom being kept closed by the hand until it is required to drop some of the material to form a cake. when the hand is opened slightly, and the necessary quantity drops onto the tray; or, if it does not flow fast enough, a slight pressure from the hand forces it out. The bag is now quickl v moved up, and, if required, the opening in the bag is closed by the harr.;.), This operation drops and separates a sufficient quantity to form a cake, and is repeated until the tray is filled. The object of my invention is to produce a machine for makingsuGh cakes more rapidly, more uniformly, and more cheaply than can be made by hand; and it consists of a cake-machine provided with the usual endless' apron,and a suitable means for giving it an intermittent .rbovement, in combination with a vertically-reciprocating doughbox provided with the uSlHil follower and mechanism for forcing the dough or cake material through one or more openings in the bottom of the box. 'fhe object in making the dough-box movable vertically is that it may deposit a portion of the cake material npon the tray, from each opening, during its downward movement, and separate the same from the bottom at some point, during its upward movement, as will be Blore clearly hereinafter shown."
The specification also describes, and the drawings of the patent show, a modification wherein the endless apron moves vertically up and down to and from a stationary dough-box. Claims 1 and 4 are as follows: "(1) In a cake machine, an intermittingly-moving endless apron for carrying the tray along as the cakes are deposited thereon, in combination with J vertically-movable dough-box provided with a follower, L2, and a suitabl&
UNION PAPER-BAG MACHINE CO. fl. WATERBURY.
mechan ism, Stl bstanti ally as specified, for givin g it the necessary movements." "(4) In a cake-machine, the combination, with a material box, of a pan-supporting table, and mechanism for vertically moving one towards and away from the other, whereby, when the machine is in operation, the material flows from the nozzle upon the pan, and, when the deposit is made, the connection between the deposit and the box breaks, substantially as set forth." It is not con,tended that the defendant has not used mechanism cov-
ered by claim 4. The plaintiffs contend that claim 1 has also been infringed. In the defendant's machine the dough-box does not move vertically, but is stationary, and the endless apron moves vertically up and down to and from a stationary dough-box. The answer sets up in defense that, prior to the invention by the patentee of the improvements covered by his patent, they were used at the city of New York by various persons named, and also at Chicago,IlL, by two persons named. This defense is satisfactorily established 'by the evidence in regard to claims 1 and 4, in respect of machines like that used by the defendant, with a vertically-moving endless apron. So, also, is the defense. in regard to the same machines which the answer sets up were in public use by the same persons, and at the same places, for more than two years prior to the application of the patentee for his patent. The bill is dismissed, with costs.
UNION PAPER-BAG MACHINE
Co. et al. v.
(Oircuit (JOU1't, S. D. New York.
July 13, 1889.}
PATENTS FOR INVENTIONS-REISSUE-PAPER BAGS.
Reissued letters patent No. 10,083, granted April 11, 1882, to Mark L. Deering, describe an invention consisting in a novel mode of folding and pasting a piece of paper into the form of a quadrangular, flat-bottomed bag. The original patent described the process as follows: "By making. in a sheet of paper or blank the folds, Band C, then pasting together the two ends, A, A, forming the body or tube of the bag, then forming the fold E, at one end of said body or tube, and the inwardly projecting triangular folds, H, H, side folds, G, G, and fold, I, upon which is then folded the lap, J, secured in place by pasting." The reissued letters omitted in terms the second step, "forming the fold, E, at one end of said body or tube," hut recited as its second step, "then spreading open one end of said body or tube." Held, that this was the equivalent of the original, as it involved the previous formation of the fold, E, or an equivalent determination of the part of the tube to be made into the bottom of the bag.
The reissued patent contained a second claim for "a bag consisting of a bellows-sided tube having a satchel bottom and inward triangular folds, which form part of its two sides wheu distended." The application for the original contained !l. claim similar to this for a bag, irrespective of the process. bu.t it was rejected. apparently because anticipated, and the claim was withdrawn. lIeld, that the patentee thereby waived his claim for a bag as a new article of manufacture, and that the reissue was obtained for the mere purpose Of enlarging the monopoly of the patent.
Under such circumstances it is immaterial that the application for a reissue was made within two years from the time of the original grant.