UNITED. STATES 11. CLASSEN.
UNITED STATES 11. CLASSEN.
(Circuit Court, S. D. New York. July IS, 1890.)
CRncnUL LAW-NEW TRIAL-CONTINUANOB 011' MOTION.
A motion for a new ·trial in a criminal case may properly be postponed to a later term on defendant's application, because of the absence of his principal counsel, Where the defendant is in custody, and waives his right to apply to be released on bail.
At Law. Edward MitcheU, U. S. Dist. Atty. Benj. B. Foster, for defendant.
BENEDICT, J. In this case, application is made by the defendant to postpone the hearing of the motion in arrest of judgment, and for a new trial, until the October term, upon the ground that the counsel mainly responsible for the conduct of the defense at the trial is compelled to join his family in Europe, and will be unable to take part in the argument unless the same be postponed until the time of his return. The defendant is now imprisoned, and accompanies the application for a postponement with a waiver of any right to apply to be released from confinement on bail. The district attorney declines to consent to the postponement. It seems to me, however, that the desire of the aecused tobave the counsel mainly responsible for the conduct of his defense at the trial already had, take part in argument for a new trial, is reasonable; aud inasmuch as the accused is now confined in prison, and under his waiver must remain in confinement during the delay applied for, I am unable to see that the ends of justice will suffer by granting the application. The motion for a new trial, and in arrest of judgment, is therefore set down to be argued on the first day of the October term.
MACK 11. LEVY
(Circuit Court, S. D. New York. May 20, 1800.) 1.
PATENTS J'OB INVENTIONS-INFRINGEMENT-OPERA-GLASS HOLDER.
Letters patent No. 268,112, issued November 28,1882, to William Mack, for an improved opera-glass holder, consisting of a detachable handle made in telescopic sections, the end section being provided with a fastening device consisting of a piston hook and a notch on the end of the cylinder, brought tog'ether by a spring, are infringed by an opera-glass handle made in telescopic sections with a fastening device like the one in the patent operated by means of a screw. Letters patent No. 899,548, issued March 12,18891 to William Mack, for an improved opera-glass holder, having its upper end longltudinally forked 80 as to spring apart slightly, and thus f1.t tightly into a socket in the bar of the opera-glass, IS not infringed by a holder which aoes not have this longitudinally forked end, though it is otherwise similar to the patented device.
In Equity. Bill for infringement of patent. ' H. A. West, for COIl}pkti1l8lnt., , ," James A. Hudson, for defendants. This is a bill ,in npol1tbe patent to eachjor an operaglass holdel';tbefirst being No. 2&8,,112, dated :;November 28,1882, and behig' The principal object of the invention described in the patent of 1882 was to enable persons who use opera-glasses to hold them to the eyes in such ll: manner as not to raise the hand higher than breast whenusing the glass, or to 'permit the arm to rest upon the arm of the chair. AsecQnd object was to construct the handle so that it could be foldedup in a small compass. was a handle, made in secti0I/-s.The upper end a cylinder,in which was a piston, fV;ld upon the lower ¢ndofWe, piston was a spring. A, hookwl,is upon the other end oOhe wpich was adapted to clutch one side of the t,x:ansverse bar of an opera-gla's13" while the other side was grasped by a bifurcated slot.or notch Oil the: tlpper end of the cylinder. The spring pulls the hook towards t,l1e clutches between them ,thehar of the opera-glass. The clitimsare afi follows: ,,' , '
with a detachable handle for holding to the e>'es of ,the holder, substantially as described. (2) The cO,mbinatibh of an opera-glass with a detachable handle, the handle being artangedat: any suitable angle that will adapt the glass to the position of the eyes when' held In either hand. as shown and described. (3) The combination (It, an with an adjustable handle, the said handle beinA' adapted to be elongated'at will, as described. (4) The combination with an A. of the handle, B, in sections, as described and arranged. to close tplescopically, the end section thpreof provided witb a fastening device or clutch in the manner set forth. (5) 'l:he combination with an opera-glass of lthe handlamade in telescopic sections,and adapted to close telescopically. the end section forming a cylinder in which are placed a spring. piston. and hook. all arranged as set forth. (6) The combination with an opera-glass of 8 handle made in sections. and arranged to close telescopically, the end section being provided with clutchinA' devices. and the section itself at its end being provided with a bifurcated slot. for the purpose set forth and described. 8n opera-glass handle, made in sections, and (7) As an article of provided at its end with clutching devices. substantially as described."
Prior to the patentee's invention there had been in use a non-extensible detachable opera-glass handle, made by ope Standike, which consisted of two cross-pivoted jaws,which grasped the transverse bar.of the operaglasS, and a sliding hollow handle, which opened and closed the crosspivoted jaW's. 'The same mechanic had made a telescopic detachable spy-glass handle, which had been in u/le, and is known in this case as "Standike's cane and spy-glass." Both these arti<lles were made and used in country. The patentee .was not, therefore, the pioneer inveptor in either'detachable or in telescopic detachable opera-glass handles, andqis is to be construed accordingly·. His invention consisted in'a·detlichable'opera-glass handle,made in. telescopic sections, the end
JUCB: fl. LEVY.
sectIon being provided with the fastening device, consisting of a. piston hook and slot. or their equivalent, the hook and slot being broup;httogether by means of a springjbut the means by which the hook and slot are fastened together are not of the essence of the invention. It is not necessary that a spring should be used to cause the hook and slot to approach one another; other like means are properly within the scope of a portion of the claims of the patent. The first, second, third. and seventh claims are very broad, and, less limited to the patentee's clutching device upon the end ar<:t anticipated by one of the Standike devices which have been mimtioDl'ld·. The fourth claim is for a ser-tional, telescopic, detachable opera-glass handle, the end section of which is provided with the described fastening de-vice or clutch, which consists of the hook and slot, secured by a spring or other meaDS. The construction of the fifth claim is not importtlut .iil this case,. as the claim requires a spring, and therefore was not 'rhe sixth claim was intended to be a narrower claim than the foudh,in that the end of the end section must have a bifurcated slot; but, as r consider the fastening device upon the end of the section, which consists of the piston with its hook and the slot, or their equivalent, to be' the important portion of the invention, and to be included in the fourth claim, the fourth amI sixth claims are substantially alike. 'The defendants have made and sold four kinds of holders, known: as B,"" 0," and "Specimen Respondent's Manufacture." ,Each one, except OJ is 'a detachable handle, made in telescopic sections, the upper section' being cylindrical, in the upper end of which is a piston,upon one end of which is a hook. A bifurcated slot or notch is upon the end of theseetio'n. In A a set-screw, fitted in the collar at the outer end of the inner tuoo; locks the piston when the hook portion is broughtin contact with the crossbar of lheopera-glass. InB a screw and nut upon the piston are used. In "Respondent's Manufacture" a screw is used, which is operated by'a nut projecting from the cord of the inner section, and which moves the piston and hook out and in. In U the hook and slot do not exist. 'but there is a detachahle screw-loop, the open ends of which are screwed together. All the exhibits, except 0, have the essential elements of the invention, and are infringements ofthe fourth and sixth claims. ' The patent of 1889 describes another kind of detachable handle, 'iDade in telescopic sections or iu one section. The upper end section has a longitudinally forked end, which fits into a socket on the bar of the operaglass. The arms of the ·fork spring apart slightly, so as to fit tightly into the socket. The interior of the tubular sections are longitudinally corrugated or serrated, and their inner ends, upon their outer peripheries, are provided with collars having longitudinal corrugations, which slide in the interior corrugations of the sections, and thus prevent the sections from turning or twisting. The inner ends of the sections are provided with outwardly springing ends, which cause sufficient friction between the parts to hold the sections at the desired adjustment. The claims are as follows:
. "(l)A.t1:opera-gl!lss holder, consIsting' essentially of a rIgid body portion itli},1ppilr onter end longitudinally bifurcated, forming spri ng legs or to spring apart. and adapted to snugly and removably fit in the J;!ereih-described tube or socket of an opera-glass, and thereby rigidly hold the Same in .position, as set forth. (2) An opera-glass holder, comprising telescope sections having exterior and interior intermeshing corrugations, the section atone:end having its outer end longitudinally bifurcated to engage the yoke-piece of an opera-glass, said bifurcated end having a soft lini ng. and the section at the opposite end serving as a handle, substantially as described. (3) An opera-gl.!lss holder, ,comprising telescopic sections. one 01' more of which are provided exterior corrugated collars having outwardly springing ends, and llliding in adjoining sections, the section at end being din ally bifurcated to hold the yoke-piece of the opera"glass, and the opposite end section serving as a handle, substantially as described. (4) An operaglass hplqer,comprising te1l:lscopi/J sections, the section at one end serving as a han,dle# and the opposite end section adapted to removably hold the glaBs. for the purpose set forth, the inner ends of said section being provided with sertationsorcorrugations sliding in similar corrugations in the interiors of the adjoining sections. (5) An opera-glass holder. comprising telescopic sections, the section at one end serving, asa handle, and the opposite end section adapted to be removably secured to a oross-piece of a glass. the inner ends of said sections being prOVided with exterior or interior intermeshingcorrugations and \>utwardly springing endS, as described." Tlle important part of the improvements consisted in the longitudinally forked end of the upper section of the detachable telescopic handle. The corrugated collars and outwardly springing ends. are frictional dewell known, vices to hold the sections together and prevent twisting, and have been often used in pencil cases and similar articles made in telescopicaUysliding sections. There is nothing patentable ill adding these collars and springing ends to the holder of 1882. The fourth and fifth claims are those which are said to have been infringed. If these claimS manifest patentable invention,in view of the patent of 1882, and of the previous state of the art" it is only when they are limHed to ..handle in telescopic sections, having a longitudinally forked p,ttaching device at the end of the uppersection.Tbe defel1dant's handles, which bave already i:leen described, do not have tbis longitudinally forked end, but bave the slot and hook of the 1882 patent, and conse- . quenUy do not infringe. Let there be a d.ecree for an injunction against the. further infringement of the patent of 1882, and for an accounting as to· the infringement of the fourth and sixth claims thereof. So much of the bill as relates to the. plJ.tent of 1889 will be dismissed. Each party prevails upon one of the, patents, and the question of costs will be reserved uutiltinal decree.
!lOTT .,. THIRD AVE. R.
MACK t1. LEVY
(mrcuit Court, S. D. New York. June 26,1890.)
H. A. West, for plaintiff. Ja'1lWJ A. Hudscm, for defendants.
SHIPMAN, J. These are two petitions, one by tbe plaintiff, and one by the defendants, for a rehearing of the above-entitled cause. I have e1t:amined the papersand the briefs, and see no reasou for a rehearing, and therefore each application is denied. I bad intended to state, as usual, my for the denial, but, upon further consideration, it ap. pears to me that the main questions depend entirely upon the proper construction of the patent; that I have clearly, though briefly, staied my construction; and that I can hardly hope to express my idea with more clearneSll by additional observations on the. subject.
THIRD AVE. R. Co.
(mrctd.t Court, S. D. New York.
PATEl'l'1'8 FOR IWVENTlONS-NoVELTY-ANTTCIPATION.
The claim of letters patent No. 241,044, granted May 8,1881, to B. R. Matthew· son for cable tramwar for carrying cars around curves, consisting of a series 01 vertical rollers with mtervening vertical plates, as a means for supporting and guiding the cable around the curve, is void for want of novelty, having been anticipated by. an English patent of September 6, 1872, in which vertical rollers are placed in recesses at the sides of the curve; the intervening parts 01 the sides tfoking the place of the vertical plates in the Matthewson patent.
George Harding and George J. Harding, for complainant. Herbert Knight, for defendant.
WALLACE, J. The only claim of the patent in suit (No. 241,04:4, dated May 8, 1881, granted to Bebra R. Matthewson, for "cable tram. way for carrying cars around curvel'l") which is alleged to be infringed by the devices employed by the defendant. is the first, which is as follows: "In combination with a curved tube or tunnel having a traveling cable moving within it, the means. for supporting and guiding said cable around the curve·. consisting of a series of vertical rollers with inlervening vertical plates. supported so as to form a nearly continuous moving and guiding surface upon the inside of the curve, substantially as described." of this claim are not the rollers, H, mentioned in some The of the other. claims, but are any rollers which will revolve on -'Vertical axes, and relieve the cable from. friction; and the intervening plates are