PUXNAM V. TINKHAM.
reduced to 30 per cent. on the balance, which I am 'by no means prepared to admit, yet a mistake of this kind would not enure to the benefit of Burchell's estate; and on that theory there ceased to be any connection between the obligation of Burchell and that of Bigler after June 12th. If, however, Burchell's obligation did not extinguish any part of Big. ler's original debt, but was collateral thereto, thEm accepting a composition from the principal debtor does not discharge any party collaterally liable for the same debt. The payment was a settlement of a claim for a composition about which there was some little question as to the amount that should be paid, and its legal effect as a payment cannot be held to be greater than would that of the payment of any composition. For these reasons I think the obligation of the bankrupt has not been discharged, and the claim must be allowed.
PUTNAM 11. TINKlUlI.
(Oircuit Oourt, D. Oonnecticut. October 23,1880.)
1. RE·IElBlJE-IDENTITY OF 1NvENTloN.-Re-issued letters patent for an improved bottle stopper, granted December 23, 1879, to Henry W. Putnam, assignee of Joel B. Miller, held, wid,because it appeared on its face to be for a different invention frOm that Which was embraced in the original patent.
Arthur v. Briesen, for plaintiff., E. A. West, for defendant. SHIPMAN, D. J. This is a bill in equity, based upon the alleged infringement of re-issued letters patent for an im. proved bottle stopper, which were granted on December 23, 1879, to Henry W. Putnam, assignee of, Joel B. Miller, deceased. The original patent to Miller was dated October 27,
The invention described in there-issued patent is a bottle stopper, which is placed within the bottle to close the mouth from below. A spring bail and handle areperrilanentlyat.
tached in anyniannerto the upper end of snch stopper. The body of the bail is preferably staple shaped, being made of two legs or branches which boW' outwards so as tO'form springs which bear against the·sides of the throat of the bottle. "The upper part of the bail forms a loop larger in diameter than the interior of the bottle neck, which loop serves as a can.venient handle for the operation of the stopper, and also prevents the entire device 'from'slipping into the bottle." The re-issued patenHnc1udes a bail rigidly fastened to the stopper, and a bail hinged or jointed to the top of the stopper. The claims'are' as follows: "First. The combination of an internal bottle stopper with an upwardly. projecting bail, ;0, said bail having an enlargement, F, which is adapted to suspend the stopper from the mouth of the oottle, and a handle portion above said enlargement, substantially as herein shown and described. "Second. The combination of an internal bottle stopper with a bail, 0, which is constructed to form springs, aa, above the stopper, substantially as herein shown and described. "Third. The combination of an internal bottle stopper with a bail, 0, forming the springs, a, and the enlargement, F, above · said springs, substantially as herein shown and described. "Fourth. The internal bottle stopper, provided with a hinged Ox jointed bail, 0, which is composed of two elastic legs or branches, a, and of an eye or finger loop, substantially as herein shown and described." The defendant's stopper is made under re-issued letters patent of June 17, 1879, toOharles G. Hutchinson, the original patent having been dated April 8, 1879. The ]\filler patent was bought by the plaintiff in October, 1879, and was thereafter re-issued. The defendant's device consists, in substance, as stated in the specification of the re.issue, "of a laterally or outwardlyyielding spring applied to the stopper or plug proper, and adapted to extend up through, and press against, the interior of 'the neck of the bottle, so that the stopper will thereby be suspended in a position to either close or open the neck as the spring is moved either up or and be held in either
PUTNUI V. 'nNKHUf..
its closed or open position by the action· of the spring." The
spring which is used is a continuous flexible wire attached at one end to the stopper, and bent so as to lesemble £omewhat the figure 8 in form j the other end of the wire being bent back to a point near the end which is attached to the plug, and being 1eft free. The top of the spring serves as a loop to receive the finger or a hook by which the.stopper is drawn up. This handle or spring is rigidly fastened to the stopper. The defendant denies infringment and the novelty of the invention as described jn the first three claims of the;plaintiff's re-issued patent, and also; insists that the re-issue is void because it is for a different invention from that which is described and claimed in the original patent. The last question seems to me to be a vital one in the case, and I shall not, therefore, decide the other points. The original Miller patent made the invention to consist of a stopper with a handle or bail hinged or jointed to the top of the stopper, and carefully insists that the peculiar mode of construction is a distinguishing feature 'Of the invention. The patentee says in his specification: "1 am aware that in.ternally-Iocated bottle stoppers have been provide.d with vertical rigid handles or stems for manipulating the same; but, owing to the rigid character of 'the handle, the stopper is. apt to be forced down into the bottle during tranfilportation, and furthermore, in dispensing the contents of the bottle, a rigid handle will interfere with the free flow of the liquid. My ill. vention is designed to avoid these defects, for, by hinging or jointing the handle to the stopper, the same can be turned away from the mouth of the bottle in dispensing the contents thereof; and, furthermore, by making the handle of a bow shape, or with two legs or branches, the latter will, owing to their elasticity, spring against the throat of the bottle, so as to render the casual displacement of the stopper impossible." The claim is as follows: "The internally located bottle stopper, B, provided with a hinged or jointed handle or bail, 0, composed of two elastic legs or branches, and an eye or finger loop, as and for the purpose set forth." He virtually disclaims rigid handles, and says that his
invention is designed to avoid such a method of construction. It is useless to say that by 1Io rigid handle he merely meant a bail without spring action, for the entire paragraph shows that he also meant a handle so jointed or hinged to the stopper that it could be turned away from the mouth of the bottle. He intended to point out that his handle or bail was both hinged to the stopper and had elastic legs. The reissue covers a device in which the bail is attached to the stopper in any manner. The hinged construction is briefly alluded to as one which accomplishes a certain result. The file wrapper and contents of the original patent furthermore show that the specification accompanying the first and rejected application described the same method of construction which now re-appears in the re-issue, and which the patentee, apparently, was obliged to eliminate from the specification before he could obtain a patent. The handle was to be attached to the stopper in any manner, and was preferably staple shaped. The application was thrice rejected. Finally, the quoted paragraph respecting rigid handles was inserted, and the patent was granted. In the original patent, the. patentee informed the public, with precision and after deliberation, that his invention was an improvement upon a rigid handle, and liinited himself to a hinged or jointed handle. It has now become important for the plaintiff to possess himself of the territory which his assignor attempted to occupy, but abandoned, and the ownership of which he virtually disclaimed. A comparison of the two patents shows that the case is clearly within the principles which have been recently and frequently announced by the supreme court as applicable to re-issues. The re·issue is void, because it is, on its face, for a. different invention from that which was embraced in the original patent. Russell v. Dodge, 93 U. S. 460; Raibcay Co. v. Sayles, 97 U. S. 554; Powder Co. v. Powder WO'l'!£s, 98 U. S. 126; Leggett v. Avery, 17 O. G. 445. The bill should be dismissed.
See Siebe1't Cylinder Oil Cup Co. v. Harpel' Steam LulJrica:'J'>' 00.
and others.October 15, 1880.)
ooure, E. D. Pf/f/lTi8ulfJania.
This was an action at law to'recover damages for the infringement of letters patent No. 21,026, for an improvement in pole coupling for railroad cars. The patent was ..issued in 1858 to Blaney E. Sampson, was re-issued in 1860, and was, in 1872, extended for seven years. It contained two claims-First, an open jaw for coupling a street-car pole to the car; and, second, a method of supporting a street-car pole so as to take the weight of the pole off the horses' necks. The plaintiff testified that he had an established license fee of $10 a car for the use of the open jaw covered by the first claim alone, and a license fee of $50 for the use of the devices included in both claims; but that he had never collected any license fee for the use of the pOle-support device alone, covered by the second claim. Evidence was given by the defendants of prior use of the devices included in both claims, in New York, Jersey City, Troy, and other places; and of the device covered by the first claim, in Philadelphia. Rebutting testimony was given by the plaintiff as to the prior use of the device covered by the second claim, but not as to the prior use of the device covered by the first claim. After the evidence was in, the plaintiff's counsel stated to the jury that he abandoned the first claim·
· Reported by Frank P. Prichard, Esq., of the Philadelphia bar.