ADEE V. PECK.
ADEE V. PECK
(Circuit Oourt, D. Oonnecticut. May 14, 1800.)
PATEN'1'S FOR INVENTIONS-PATENTABLE INVENTION.
Reissued letters patent No. 6,789, issued November 16, 1875, to James Foley, for an improvement in waste-valves and overflows, consisting in bringing up the outer 'pipe of the overflow through the casing contiguous to the basin or bath-tub, and securely attaching it to a removable cap resting upon the outside of the casing, is not invWid for want of invention.
The claim of said reissue being substantially the same as that of the original paten,t,. that it gives a statement of the prior state ilf the art, so as to limit. the scope of the patent, and omits the element of a rubber ring around the valve, which Wllo8 only an incidental feature of the invention, and was inserted in the original claip) by mistake, the reissue is valid. . S. NAME qF PATENT AS TRA.J>E-MARK. A bill that defendant has infringed a patent owned by complainant, and .originally granted to Jp,mesFoley, for an improvement in waste-valves, and that complainant has sold said under the trade name and.style of "Foley's" .and "FoleY's Patent," and "that said trade name, dUring the life of said letters patent, ilI"i«elltified thereWith, ant!. of great value ..* in said patented the defendant has s\lld his infringing valves .uncier valves .as,a the trade name of 'Foley's Patent Valves,'" and praying, inter alia, that defendant be enjoined from selling any waste valves under the name of "Foley's" or "Foley's Patent- Valves," states only one good cause of complaint, 1. e., for infringement of a patent. The name of the patented device is not, properlyapeWrlng, a trade-mark. Following .Adee v. Peck, 89 Fed. Rep. 209.
.. SAJIIE":'REISSUE OF LETTERS.
I'n Equity. Briesen <to Steele, for complainant. Edward H. Rogers, for defendants.
WALlJACE, J. This is a suit to restrain infringement of reissued letters patent No. 6,739, granted to James Foley, assignor, November 16,1875, upon an application filed October 1,1875, foran"improvement in wastevalves and overflows." It is also brought to restrain the infringement of an alleged trade-mark in the name, "Foley's Patent Valves." The defendants arernanufacturers and dealers in plumbers' goods, and in 1882, or earlier, purchased from the complainant the patented valves, and sold them in their business, describing them in a catalogue issued by them as "Foley's Patent Valves." In 1886 they commenced to manufacture the valves themselves, having, as they say, satisfied thetr.selves that the patent to Foley was invalid, and consequently that the complainant was not entitled to a monopoly in the manufacture and sale of the valves; and since that tim,e they have continue.d to manufacture and sell the article, calling .them ",Foley's Patent Valves." _ The subject of the patent is an improvement in devices for permitting the overflow of basins, baths, etc., to escape, when the water reaches a given elevation, by means of the valve, whicb is closed to permit the basinor bllth to be filled, Such devices consist of a vertical tube or standpipe which connects by a T coupling with. a pipe leading to the basin and a waste-pipe, and having a valve-seat at its lower end, so located in relation to the basin-pipe and the waste-pipe that when the valve is closed flowing .into the basin cannot escape. The stand-pipe v.421t'.no.9-32 -
leads to a wooden or marble slab at the side ·of the basin or bath-tub, and is covered by a cap, which in the earlier devices was commonly attached by screws to the upper side of the marble or wooden slab. The valve is formed tipol:l,thelowei'endbfthe tubular stem; which is arranged within the stand-pipe, and the ,.stern is .of the length above; the :valve to high as the point in the basin orbath-tub,which is to be·filled.;i;T,hevalve stem is opell at both its 16werends, a handle which plays through an opening iri the and is cup. The stand-pipe surrounding the valve-stem allows' thewltter to rise, as the basin fills, until the"top,of the valve-stem ill reached, when any further would o\Terflow into the to The valve--stem and valve p.racticallyone,structure, and are provided with a device by which they may be<raised by the cllP, held in a position to ,peront the"water,toescapef.rom the basm mto thewasfe-plpe. The ,improvement .. My invention:relateS to an improvement that is made for allowing the valve,and ovel'ftow< tobeeasHyieliloved. F<,lr purp08ethevalve and its upthrouglt th,e lIlarble or wo¢en slab, artable contiguous, tQ tbe basin .orbath, andpl'ovided with a removable cap, through which the 'Stem to the handle passes." described the speciThe details of the improvement are fication as follows: or table.:". and is provided "This standing tube, I, passes through the With a removable cap. 1, preferably screwed upon the w'; 'and through the cap. 1, is a rod, m, with a handle. n, at the upper end, and the lower end is by:. a, bridge or a tubular stem, Q. that is witbin the forms pipe When the rises "in the basin or above tile upper end ofthls tube, 0:. The rod, m, IS made sotbat,whenlt IS ·raised and ,partially revolved, it wfll'suspand the tubular stemalild.val.Ve... . , The claim is as follows:. .. ':.: .' . .. ' '. '. . ' " "The stantf-pipe.l, of the bath or'baslnovl!rflow passing through the slab or table, b,andreceiving at its upper end the removable cap. l,"in combinationwith the overflow-pipe, 0, valvei ,,.,:and means' of suspending the valve 8n!i Q"erflow cap from the pipe. s.ubstantially as set forth." It is quite apparent from the evidelice in respect'tothe prior state of the, art that the improvement really made by FoleYiri pre-existing waStl)·valve!! consisted hi bringing upthe stand-pipe or outer pipe of the overflow through the casing or slabcontigtious to the basin and securely, attaching it, preferably by a screw connection ·. toa removable cap resting upon the outside of the casing or slab. This improvement Wllsausefuland meritoriousonel The stand-pipe is supporMdin position :bythe cap itself; both parts, wheri connected, being integral, thus affording a firm and) durable attachment of the stand-pipe to the slab. The cap cah be removed more readily than' can those which are fastened by bolts or screwstG the slab;' and when the cap'is removed thewnoJe diameter of the .. a,nd the valve-stem and its parts cahbe'conveniently removed for cleaning Or repai'fs..Accordthe testimony, 'since the Foley' valves have' been. introduced, they
have completely superseded the old valves. with the trade. No one can examine his .valve for a moment without seeing that it.is a more convenient, more l\rtistic, and abetter device, practically, than any of those the earlier patents; and, when it appears .that many modifica.tions. Qf the connection between the stand-pipe, the cap, and the slab had been made by plumbers in attempts at imprOVeJ:llent, which fell so far short of success that as.80011 as his was introduced the old ones were supplanted, there is sufficient evidence that the change made by him., though a simple one, was. not an obvious thing to those skilled in the art, and involved invention. The phraseology of the claim is such that the patent is not infringed unless the improved stand-pipe and cap of the claim are employed in conjunction with all the other operative parts of an overflow valve. The stand-pipe of the claim is one which passes slab, and is adapted to receive the cap by a connection which through unites th.etwo parts integrally. The cap is one that is removl1ble,adapted to be disconnected with the stand-pipe. The "means of susthe overflow pipe from the cap" are the bail and rod. Inasmuch as the defendants are making and selling the identical valves of the patent, the complainant is entitled to a decree, if the patent is valid. As has been indicated, the pll-tent is not invalid for want of invention. The claim is not met by any waste-valves previously patented or in public use which did 110t have the stand-pipe and cap constructed and arranged as described. The valves which are alleged to have been made in1872 by Carr & Co. are the only ones, containing SQch a stand-pipe and cap, in respect to which any evidence has been given. The defen,ae which rests on the use of these valves is not by that cogent evidence which is required to overthrow the presumption of novelty arising fronl the grant ofletters patent. Indeed, the patent to Carr, granted December 7. 1875, in which he disclaims expressly the deviceshown in the patent to Foley, is enough, in view of the circumstances of' the alleged prior use, to discredit the defense. Although the patentee acquiesced in the rejection of the present claim by the patent-office until it was amended by adding the words, "means for suspending the valve and overflow pipe from the cap," the only effect of Etuch acquiescence is to preclude the owner of the patent from setting up any construction of the claim which would omit the parts introduced by the amendment as a limitation of the scope of the claim. The defendants insist that the reissue is invaliq. The application for therE-issue Was made within two years from the grant of the original, and nothing appears in the record to indicate that the reissue was sought in order to overreach devices which had been invented or patented, or used by others, in the mean time. The peculiar q.etails of construction and arriuigetJ;lent of the pe and cap which constitute the real inventionof the patentee were. plainly st.own in the.·,drawing of the originalpatent,Buggested by the language of the description, and incorporated into the claim by letters of reference to the drawing. The reissue contains statements respecting the prior state of the art which did not appear in the original·. 'l'hese statements are, in effect, a disclainwr,
and limit the scope of the patent as the original patent would be limited by judicial construction, upon'proof of the prior state of the art, in a suit brought upon it.. They tend to define more clearly the line between new and old, and therE\by to remove doubts as to the precise limits of the. invention. There is no substantial difference between the claim of the original, interpreted as it would be if a suit were brought upon it, and the prior state of the art shown, and the claim of the reissue, except that in the latter the rubber ring around the valve is omitted as an element. It is obvious that the rubber ring around the flange or rib of the valve, although useful, wae only an incidental alid preferable feature of the invention, so obvious that the inference that there was a mistake in incorporating it into the claim of the original is almost irresistible. The claim of the reissue omits as an element the T coupling, which is the of the valve, and forms the connection between the basin-pipe and By necessary implication, this must the waste-pipe and the be read into' the claim of the reissue; otherwise the combination would be wholly inoperative. of the reissue is consequently, in all respects, the claim of the orIginal, except in omittiI).g the rubber ring around the vnlve. In short, a com'parison of the original and reissued patents suggests that the powerbf the grant a reissue, to cqrrect a mistake which would render theotiginal patent inoperative, has seldom been inore wisely and reasonably than in the present instance. '. ' ':The complainant is entitleq. to the usual decree for an injunction and accounting. So far as biscase proceeds upon the theory of an infringement of his trade-mark, if is controlled by the previous decision of this court, upon the demurrer to the bill, by Judge SHIPMAN. 39 Fed. Rep. 209. ' ,
ROOT f:'. SIOUX CITY CABJ,E
(Oircuit Oourt, N. D. Iowa. June 2, 1890.)
P.lTENTS FOR INVENTIONS-PRIOR STATII Oll' ART-CABLE RAILWAys-GRIP.
Letters patent No. 160,757, Maroh 16,1875. to William E\lpelsbeimer, for an improvement in olamp apparatus for conneoting street-oars with endless traveling devices, oonsisted ofvertioal pulleys to support the cable, and a lower clamping jaw, ",biob, wben the car was being ,propelled, was raised so as to grasp the oable between it, and an upper stationary jaw, thus raising the cable from the pulleys. When tbe oar was at rest, the lower jaw dropped belowtbe pulleys, releasing the cable, and allowing it to rest upon them. HeW, tbat, sinoe there were already inventions for such olamping bars and for supporting pulleys, the patent oould not be broadly oonstrued, and was not, therefore. infringed by a devioe conaillting of a nl0vable upper jaw, whioh, when the car was in motion, pressed the oable down upon a stationary lower, jaw, w"b,iOh was slightly below tbe surface of tbe,pulleys. , ,on wbioh the oable rested,b<)th while the oar wasin motion and at rest, and whioh, 'when the oar was at rest, was raised, allowing the oable by its own.train t9 risefrom the lower jaw. " , '
Bill to restrain infringement of letters patent.