; ';,';, ,
. '" /,
SOCIETE ANONYME DE LA DISTILLERIE DE LA LIQUE;qRB:m,mnICTINE DE FECAMP'V.COOK et aJ.,< ,(OtrcmU o,o\M1, S. D. NfJI1)'
tn 'an action to restrain 'defeIidantsfrol1l using bOttles' and labels in imitation ,of , ,thoBefOf Whe,re t\le patent for the design Qhuch:bottles has expired, whether defendimis are using the same in' good faith, in which case t\iet,t,'a:ots 'would' be lawful, or for the purpose,of m,iBle8.ding" the, PUbliC" jo believe 'thatdiheyare selling ,the artlcle,made by plaintiff. in, which case the expirati9l1. of t1l,e would, be 119 defense, doeB notarise under the of the UIl1t.ed States BOas to give the federal courts jurisdiction. . ' ,
: 0nm:()tion to remand. HubbeU, for complainant. Giffcitd. Brown, for defendants.
WALLACE,J. The question whioh arises ()n this'rilotion to remand this suit to the state court;from which it was removed, is whether the suit involves a federal question. The action is brought to restrain the defendants from unlawful competition in business, and the complaint alleges that the defendants are fraudulently selling a; liquor or cordial in imitation' of that of phintiff, by using labels, bottles; and other accessories in irriitationof those previously used by the plaintiff. The answer, among other things,alleges that letters patent of the United States for a design fora bottle were granted in 1868; that the term of the patent haS expired; and that the bottles, labels, etc., which defendants are using, are those which have become public property ever since the expiration of the patent. If the defendants are in good faith using the bottles and labels ofthe ·patent, their acts to that extent are lawful, and would no more be an, infringement of the rights of the plaintiff than if they were using them with the consent of the plaintiff,andhad acquired a valid right to use them befol'e' the right of the plaintiffacorUed; But if they are using them under false colors, as devices, among others. intended to lead the public to believe that they are selling the liquor made by the. plaintiff, they cannot shelter themselves behind the expired patent. :In either view of the facts that may appear, the question is one to be determined by the principles of general jurisprudence, and does not arise under the laws of the United States. The motion is granted.
'1'HOMPsbNtI. E. 1'. DONN1I!LL MANUF'a
dol.". E. P.
(Cwm.ut COll.£rt, N. D. nz.mO'll. October 11, 1889.)
1I'JmnAL Co"cmTS-CoHITY., The cirCuit court of the United States for the northern district of DIlnols will, nnder the rule. of comity, be governed, as·to the infringement of a patent, by prior decisiollS of other circuits, as to the same patent, where the proof is the .
HlYT'ace Ba1"1lard and ;1. G. EUiott, for complainants.
We8t &: Qond, for defendant.
}JWDqm'T, J. In this, suit complainant charges the infringement of UnitedStates)etterspatent No. 136,340, granted February 25,1873, to Arza:8. Keith, assignee of Samuel W, for ,an "improvementin :J;Ilachines fOf formiqg staple seams in leather.» ·In his specifications the inyentor,llBoySJ II The invention relates to an organization of mechanism for uniting leather work by means of staples. or the formation of staple scams j ..'II... The machine being designed to cut the wire into staple·forming lengths, to form and drive the staples, to twist' together' the- driven and protrUded points of each, to cut off the excess of metal at the point. and to feed the work for in· sertion of successive staples in the formation of a continuous seam." ,'Whetberthis machine successfully fortning seams hi leather by means of does not clearly appear by the proof. The only use to which it has been applied, so far as the disclosures in this record go, is for stapling or stitching printedpamphlpts together; be considered only as a new use of the machine not con· templated by. the inventor at the time of his specifications, but clearly protected With, the use to which the inventor proposed to apply it. ,The defenses setup are: 'Want of novelty, and non-infringement. This patent has been before the United States circuit court of the south· em district of New York on several occasions, and fully considered and adjudicated upon. The only controversy in this case,as in the prior case I have mentioned, is as to.the charge of the infringement of the third claim of the patent, which is: '·"IfiCoIlll>inat!on Witb'the bender-foot, q, and driver, m, the inclined and , ' retreating anvil, n, operating SUbstantially as described." .... In Thompsdn v. Gildersleeve,34 Fed. Rep. 43, the was charged with the infringement ofthis claim; and the validity of the claim, and the infringement of the patent by the defendant, were fully sustained: for the inclined and After the decision that case, defendl,lnt retreating support of the legs Of the staple, While being driven, whafis briefs a, isa rectan.; gplar, inclined, support of the legs of the so arranged, forced into the paoo: llB.toretreat from within the staple. as it is ,This modified form. o(cOnstruction.wasbqfore the