V. S., ETC., FELTING 00.
and another v.
NEW IDRIA. MINING
(Circuit Court, D. Calij()l'1l,ia.. October 12,'1880.)
Wheaton <f Scrivner, for complainants. McAllister <f Bergin, for defendant.
FIELD, O. J. This case is, in its essential features, similar to that of Knox <f Osbm'n v. The Quicksilver Mining 00. [ante, 809.] The use by the defendant of a pigeon-hole partition on one side of the furnace, between the ore chamber and fire chamber, does not affect the conclusions reached. The defendant has no pigeon-bole partition between the ore chamber and vapor outlet, and-no equivalent for such pigeon-hole partition. The fire-place in the defendant's furnace is on a level with the bottom of the ore chamber, while in the complainants' furnace it is some 12 feet above the bottom of the ore chamber. The relative position of the fire-place and the vapor the defendant's furnace is not such as to create a cross draft, which is t4e main feature of the complainants' furnace. The draft in the defendant's furnace is a vertical draft. A decree of dismissal, with costs, must be entered in this ease,and it is ;80 ordered.
(Circuit Court, 8. D. New York.
the question of such interference was the subject of disput.e in two distinct suits in two separate districts, and the defendant in the second suit defended the first suit, it was held that the issues were the same in the two suits j that the record in the former suit was proper evidence in the latter suit, and that the judgment in the first suit concluded the defendant in the second suit.
lNTERFERENCE--FORMER SUIT--JUDGMENT.-- Where
In Equity. George E. Betton, for plaintiff. Jonathan Ma1'shall, for defendant. BLATCHFORD, C. J. The plaintiff, as the owner of patent No. 114,711, granted May 9, 1871, to it on the invention of John Riley, brings this bill to have cancelled and annulled a patent, No. 100,354, granted March 1,1870, to one Baumann. The bill avers that on the application of Riley for his patent his application was put in interference with the patent of Baumann; that priority of invention was decided in favor of Riley by the patent office April 20, 1871; that the defend- . ant owns the Baumann patent; that the plaintiff commenced suit at law in the Massachusetts district against two corporations for infringing said patent by the use of certain material put on their boilers and pipes by the agent of the defendant in this suit; that said suits were defended by the defendant in this suit; that it set up, among other defences therein, that the said invention of Riley was not new by reason of said Baumann patent and invention; that the court, on a trial, sustained the Riley patent by its decision, and the defendant is concluded thereby; and that the two patents are conflicting and interfering patents. The bill alleges that Riley was the first inventor. The answer alleges that Baumann was the first inventor. It does not deny that the suits in Massachusetts were defended by it, or that it set up, among other defences therein, that said invention of Riley was not new by reason of said Baumann patent and invention. It denies that the Baumann patent formed any part of the issues on which the Massachusetts suit was tried; and that the defendant is not to be .prejudiced by reason of said suit, oor;,tuse it was not a party
S., ETC., FELTING CO. V. A.SBESTOS FELTING CO.
to it, and because no party having any interest in the Baumann patent was a party to said suit, and because the defendant had at that time no interest in the Baumann patent. The plaintiff put in evidence in this suit the record in one of the Massachusetts suits,-that against the Merrimack Manufacturing Company,-under an objection by the defendant that it was incompetent. It appears by the proofs in this suit that the defendant supplied the covering for boilers and pipes used by the defendant in the Massachusetts suit; that the president of the defendant employed the counsel who defended that suit; and that the defendant paid for the services of said counsel. The record in the Massachusettes suit shows that that suit was brought on said patent No. 114,711, with other patents; that the answer in that suit sets forth that the things claimed in the Riley patent were, before Riley invented them, described in the said patent granted to Baumann, and known to and used by said Baumann; and that the finding of the court was that the defendant had infringed the first and second claims of the Riley patent. It is plain that the first claim of the Baumann patent interferes with the three claims of the Riley patent. The relief to be given by tpe court, under section 4918 of the Revised Statutes, in the case of interfering patents, is relief to be given on a determination of the question as to which one of the two pat. ents was the first invention of the interfering matters. A reference to section 4904 shows that interference means a dispute on the question of priority of invention. That is the dispute in this suit as between Baumann and Riley. That was the dispute in the Massachusetts suit as between Baumann and Riley, the defendant in this suit having defended that suit, and set up in the answer therein that Riley was not and that Baumann was the inventor of what is claimed in the Riley patent. The issues were the same in the two suits. On the foregoing facts it must be held that the record in the Massachusetts suit is proper evidence in this suit, and that the judgment in that suit concludes the defendant on the question of priority of inventiou as between Baumann and Riley.
There must he a. decree declaring the Baumann patent invalid, as to its first claim, in the whole of the United States, as respects the defendant and all persons who shall derive title under it, to or in said patent subsequently to the entry of such decree, with oosts.
& FOREIGN SALAlIfANDE'R ASBESTOS FELTING CO.·
8. D. New York.
September 1, 1880.)
George E.· Betton, for plaintiff. Johnathan Marshall, for defendant. BLATCHFORD, C. J. This suit is brought for the infringe. ment of patent No. 114,711, granted to the plaintiff on the invention of John Riley, May 9, 1871. The bill sets up that the plaintiff brought a suit at law for the infringement of that patent in the Massachusetts district against the Merri· mack Manufacturing Company; that the material used by the defendant in that suit was supplied and put on by the agents of the d,efendant in this suit, and is the same as that made and used by the defendant in this suit; that the defendant in this suit defended that suit, its president being personally present at the trial and giving directions with regard to the same; that the answer in that suit set up as a defence a. patent granted to one Baumann, No. 100,354, March 1, 1870; that the judgment of the court was in favor of the plaintiff, alid that the defendant is bound by said decision. The answer in this suit does not deny that the defendant in this suit defended the Massachusets suit, but avers that the Baumann patent was not introduced in evidence in the Massachusets suit. The plaintiff put in evidence in the suit the record of the Massachusetts suit, under an objection of the defendant that it was incompetent. It appears by the
«<See ante, 813.