: FEDERAt REPORTER,· vol.· 40.
wooden clamps of grip that thebrakeinan could not release tbe cable cars. If my recollection is not altogether at fault, such an or accident occurred on a cable line in this city within the last year, and was near resulting seriously, if not fatally. Now, the defendant is a common loarrier of passengers. A considerable portion of its'track, between Walnut Hills and tbeheart. of the city; is upon a heavy grade, and tbe .court is not disposed, if it can avoid it"to make an order that may increase the risk of travel. Without entering upon the question whether the defendant infringes, which will be reserved, for the final helLring, it is sufficient to say that there is fair ground for contest between the parties to this litigation. the onlya.dvantage to the complainant that the court can see would result from granting the preliminary, restraining order wonld be, possibly, to force the defendant to a settlement, but that surely would be no ground for a preliminary injunction. The defendant is solvent,· and abnndantly able to pay. any damages that may be decreed against it. The court, therefore, 'taking into account the special circumstances of the parties and of the case, and leaving the questions to be litigated between parties for consideration hereafter, will make an order that the defendant,'wiihih 80 days, execute a bond in the sum of $20,000, to pay to the60fuplainant such sum Ramay upon the final hearing be decreed itl his' favor, and in default thereof that a preliminary injunction ,issue. . ..
(C4IrcuAt Oou'l't,D. Irtaiam,a. December 24, 1889.)
L i'ATlIlNTll .. .. . . , Letters pateJlt No. 168.202, gral)ted.to:E. S. Heatp, SeptelDber 28, 1875, for im· provements'in wash-boards, eonsistingof a grooved flexibliltrame, two corrugated zinc plates, two cross,bars.at the upper end of the plates, a screw-rod extend, ing aeross tj:le frame attohe lower end of the plates, and conneoted therewith by a lap-joint,' is not infri:i:\ged by a wasn-b6ard haVing two straight legs, not flexible, and a straigllt Qap seoured ,1:.0 the legs by tenon and mortiae joints, with a single cross-bar at the upper en4, Mld withQut a Bo.rew-roeL .. '" ,'. , Letters patent No. 187,842; issued t() David t. George, Fe1?1'Uary 27, 1887, for provementsin wash-boards,lleing for substantially the same invention as that de. scrilled in said Heath patent. is 'voidf6r want of patentable invention. Following Pfanschmidt Tf. Mercantile Co"82 Fed;' ReP; 667. ' · , 8. SAlIlE-CoJ:iBTRUC:J,'ION, 011' ,CLADt.. ,,'," ' '.' . . ' Wb,ere a patentee amends his, application ,so as to exclude an improvement described in'a' rejected application citeuby thepatenb-oflice, and obtains a patent on such amended application" enjoin, as an infringement, the use of the deyice chlscribed.. in. the, rejected application, even though thl;) same was improperlycltelli' . '." ,
In Equity. Bill by the Lapham Dodge Company against Henry Sevetin, Frederick· Ostermyer j 'aud'Berg· Applegate·.
plication on file in the patent-office was not a "printed publication" the Heath invention, within the meaning of the statute. One of the complainant's experts testified that the new elements introduced by Heath' to distinguish his board from the two references cited, were the two zinc plates, and the lap-joint connection, by which the plate, 0, was connected with the screw-rod; and that if Heath had amended his claim to read, "The screw-rod, C, and a corrugated zinc plate having its lower end bent around said rod in connection with a grooved flexible piece, A, and a cross-bar, B, as and for the purpose specified," he would not have avoided the references on which his original claim was rejected. The defendants' alleged board has a frame formed of two straight legs. and a straight cap secured to the It'gs by tenon and mortise joints; the legs being grooved for the reception of a single corrugated zinc plate and the soap-board. At the upper edge of the zinc is a single cross-bar, grooved to receive the zinc and the soap-board. This crosS-; bar is connected with the legs by tenons, which enter mortises, and by a nail driven into each leg through the tenon. The lower end or edge of the zinc is formed into a roll or tube, through which and the legs an iron rod passes, the ends of which are upset, thus uniting the legs together. The difference between this board and the SWineburn board is mechanical and trivial. When Heath filed his original application it was the practice of the patent-office to make references and deny patents on rejected applications. He amended his claim by adding the only features of difference between his board and the board described by Swineburn, and, having thus limited his claim to meet the requirement of the patent-office, it will now avail the complainant nothing that the rejected application was improperly cited. By submitting to the decision of the office, and amending his claim so as to exclude the Swineburn improvement, Heath excluded the defendants' board, and what he thus disclaimed the complainant cannot now claim. The complainant insists that the Swineburn reference was waived by the patent-office, but that position is fully met by the fact that Heath was obliged to accept a patent with a claim too narrow to cover all the features of the Swineburn board. The invention was for a combination; the claim is clear; Heath was not a pioneer in the art; and the patent must be strictly construed. Water-Meter Co. v. Desper, 101 U. S. 337; Vulcanite Co. v. Davis, 102 U. S. 227. One element in Heath's original claim was "the iron rod, 0," and the corresponding element in the claim, as amended and allowed, is "the screwrod, e," and having thus limited his claim to a particular kind of a rod, namely, a screw-rod, it cannot be expanded by construction to embrace an iron rod without the screw feature. "A lap-joint" was not embraced in the original claim, while the claim in the .patehtrequires the two plates to be connected at the bottom by such a joint. "The bent frame, A, A," was an element in the original claim, and the word "flexible" is used in the claim, as allowed, for the word "bent." The frame is required to be flexible, so that by removing the screw-rod the legs of the
ASSANTE fl. CHARLESTON BRIDGE
frame may be sprung apart sufficiently" to allow repair or substitution of the zincs." The claim in suit is not for a "plate," but for "plates," connected at the bottom as already described, and the plate of the patent is not found in the alleged infringing board. The defendants do not use the screw-rod "to clamp more or less tightly" their frame, which is not flexible, and is not, therefore, capable of being sprung apart for the purpose described in the patent. Their riveted or upset rod is not intended to be removed; it cannot be removed without breaking; the two rods do not perform the same function j and they are not mechanical equivalents. The single claim in the George patent reads: "In a w.ash-board, the corrugated metallic plate, B, formed of a single piece of sheet metal, and provided at its lower end with a tubular enlargement, substantially as specified." The Krebs patent of 1873 describes a corrugated metallic plate formed of a single piece of sheet metal, supported by a backing board, with a tubular enlargement at the upper end of the sheet to receive a rod, for the purpose of holding the plate in position. The slight difference between the Krebs board and the George board is purely mechanical. In Pfanschmidt v. Mercantile 00., 32 Fed. Rep. 667, J udge NELSON held that the George patent was void for want of patentable invention, and I concur in that ruling. The bill is dismissed for want of equity.
CHARLESTON BRIDGE Co. et al.
(Dtstrlet Court, D. South Carolina. December 10, 1889.)
The witnesses for libelant were contradicted by those for respondent. The credo ibilityof none of them was impeached, and all seemed equally worthy ofcredit. The libel was dismissed, and the costs were divided.
There can bll no doubt that a libel in personam will lie agaiDst the owners of a draw-bridge across a navigable stream if injury be done loa vessel passing through the draw. (SVZZabus b1J the Court.)
S.um-J"URISDICTION-BRIDGES OVER NAVIGABLE STRB.uL
In Admiralty. Libel for damages. Bryan & Bryan, for libelant. Mitchell & Smith, for Thomas Young. John Po Ji1icken, for the bridge company. SmONToN, J. The brig Emanuele was in tow of the tug up the Ashley river, an estuary of the Atlantic ocean. The Charleston Bridge Company have their bridge across the Ashley, about a mile and a half from its mouth. The bridge runs about east and west, and has a draw-bridge with two each about 76 feet wide, divided by