BENEDICT .. B,URNHAM MANUF'G CO.
BURNHAM MANUP'G CO.
(Circuit Oourt, D. OOnluctieut. --,1380.)
PATENT-INFRINGEMENT.-Letters patent issued to Edward A. Locke on August 2, 1869, for an improved revenue stamp for barrels, sustained.
Stephen W. Kellogg and John S. Beach, for plaintiff. Calvin G. Childs, U. S. Dist. Att'y, for defendant. SHIPMAN, D. J. This is a bill in equity to' restrain the defendant from the alleged infringement of letters patent for an improved revenue stamp for barrels. The patent was issued to Edward A. Locke on August 2, 1869, and was assigned to the plaintiff on November 10, 1875. Prior to and at the date of the invention'the internal revenue stamp which was used by the United States government upon pack. ages of distilled spirits, and which wa.s called the "tax-paid stamp," was constructed of two pieces of paper. Before the stamp was printed the paper of whioh the' body of the stamp, was composed was perforated with a round aperture, about one and a half inches in diameter. To the back of the .paper was then attached,by paste or muoilage, a piece of tissue paper, completely covering said aperture. The stamp was then printed, the engraving oovering both the body of the paper and so muoh of the tissue paper as appears through the aperture. One objeot of Locke was to make a revenue barrel stamp which should be so destroyed by the removal of a part thereof that the stamp oould not be subsequently fraudulently used. a.nd that the removed part should also contain' and exhibit such identifying marks that the facts that the tax had been plloid upon the oontents of the barrel to whioh the stamp had been affixed, and that it had been destroyed, should always appear. The principle of Locke's invention was to construot the stamp so that a part, upon which was impressed identifying marks corresponding with similar marks upon the stub, and which was suoh a well-known part that its removal would destroy the stamp, could, after the stamp had been detached from the stub and had been affixed to a package,
FEDERAL REPORTER.' "
be removed from the rest of the stamp a,nd from the parrel, and could be preserved by the reven'ue officei·. The portion of the Locke device which is claimed to have been infringed, was constructed as follows: A piece of thin metal was impressed with letters or ,pgures corresponding with the letters or figures upon the stub of the stamp. This piece, made of any appropriate form, was inserted in an aperture in the face of the stamp, and was retained in its place by a "backing piece" of paper, the two pieces of paper being gummed together for this purpose. 'This backing piece was prepared with dried gum on its outer face, so that the stamp was ready for instant application to the cask. In the specification the patentee further says: "Instead of making the removable piece out of metal, or of, making 'it in a piece separate from the stamp, it may be made of the'same piece of paper of which the stamp is composed by simply having its outline perforated,after the manner of postage stamps, but ullgummed at its back, ao as readily to be torn-away and detached from the stamp." If the stamp was constructed according to the latter method, it would be a stamp mide ,of one piece Of paper, with identi· fying marks upon a portion of its surface corresporiding'Jwith similar marks upon the' stub I said portion heing SO constructed that it can easily be detltched from the residue of the stamp after the whole stamp has been detached from the stub' and has boon affixed to thebarrek Although the patentee speaks of a backing piece of paper which retained the metal slip in its place, and was to be gummed so as to adhere to the barrel, 'he does' not mention this bacl.ing piece in connection with the stamp when made entirely of paper. Probably the, fair construction of the specification is that the stamp is always to be provided with a bavking piece. In deciding the case, however, I prefer to assume that the patentee supposed that the dried gum was needed only upon the back of that portion of the stamp which "Vas not to be torn away. The first claim, and the only one which is said to have been infringed, is for "a stamp, the body of which is muda of paper
BENEDICT & BURNHAM MANUF'G CO.
or suitable material, and having a removable slip of'ineta.1 or other material, displaying thereon ·a serial· number or other specific identifying mark corresponding with a similar tD$rk upon the stub, and so attached that the removal of such slip must muWate or destroy the stamp." The stamps which were sold and used prior to the date·of this bill and since the date of said letters patlmt, by the defendant, as a collector of internal revenue il). the state of Connecticut, and which were furnished to him by the commissioner of internal revenue for the purpose of being affixed to packages of distilled spirits to denote the payment of tax thereon, are made as follows: The body of the stamp is composed of a piece of paper of one thickness, npon which is impressed the printed matter of the stamp. A strip of blank paper is attached to the outside edges of the back ·of the body of the stamp. This strip is .about one·tbil'd of the length of the body of the stamp, and is of the same' width. When the stamp is to be used it is placed upon tha.t part of the head of a barrel which has been previously covered with paste, is secured to the barxeV by iavarnished,, and cancelled by a stencil plate.· . When the barrel goes from· the distiller or owner to the rectifier, the .portion. over the, blank .strip, and which is not attached to the barrel in consequence of the intervention of the strip; is cut outil.nd is preserved by. the revenue .officer. This· portion has upon its' face identifying marks corresponding with similar marks upon the stub. It is cut out so that the evidence that the tax upon the contents of the barrel has been paid may be preserved, and so t11at the stamp may be effectually destroyed and be rendered incapable of subsequent use upon another package. This kind of stamp has been used by the internal revenue bureau since January, 1876, and has been an efficacious preventive of fraud. The stamps prev:ously in use did not accomplish this most important result. The principal question in the C!Lse is that of infringement. The objects of the two devices are the same. Upon a narrow construction of the specification and claim, the plaintiff's stamp is of a single thickness of paper gummed upon the back, except as to the part which is to be torn or cut out.
The defendant's stamp is of a single thickness of paper not gummed upon the back, but with a blank strip protecting the portions to be cut out from the paste upon the barrel. The blank strip was described in the plaintiff's specification. The difference is that in the use of the plaintiff's stamp the adhesive material is applied to the back of the stamp, while in the use of the defendant's stamp the adhe!live material is applied to the head of the barrel. The method of construction of the two stamps is substantially the same, even assuming that the "backing piece" was not intended to be used when the entire stamp is composed of one piece of paper. An attempt was made to attack the Locke patent for want. of novelty, but the two antedating patents which were somewhat feebly relied upon by the defendant, viz., the English patent of Edward Wilkins, dated November 13,1851, and thepatent of Albon Man, dated September 3, 1867, refer todevices so manifestly unlike the Locke stamp that further examination is unnecessary. The utility and patentability of the Locke stamp cannot. be controverted, in view of the testimony which was, introduced by the defendant respecting the various devices which the government had used, and the great success of thedevice which was finally adopted. Let a decree be entered for the plaintiff directing an account and an injunction-the terms of the decree as toinjunction to be settled upon hearing.
TlIE STEAM-SHIP ALlIAMBRA,
(District Court, E. D. New York.