FEDERAL REPORTER,. vol.
CREADRY PACKAGE MANUF'GCo.
ELGIN Co-OP. BUTTER
CQweuU C0ur41!(.]). Ill1lnoU. July 81, 1890.):
P.A.TBN'l'S rOB INVENTIONS-NoVEvrt.
,patent No. 294,764 .grDntedMareh 11,1884, to Matthew Corcoran, tor. for trussing tubs, void for w:ant of patentable novelty, liS the combination, consistio&: ot recessed. standards. with removable bottom, and driVing weigbt, is new,tbougb ita .constituent elements baa.long been in use.
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Claim 2 of letters patent No. 294,7M. granted Marcb 11, 1884, to Mattbew Corcoran, 'tor."machine for trussing tubs" covering a combination ot recessed standards, with truss-boops, removlI,blebottoDl, and driving is infringed by letters patent No. 856,217, Il'rantea Janu,ary18, 18871 to F. W. UlrICh,for the same kind of machine; wherein thll·device is a'recessed Iron pot, with removable bottom and tru8ll-bQops placed In the reQeB89S, .. the latter device is. simply an ,equiValent of . . the'tormer.
Manahan <I. Ward, for complainant. James (Joleman and John G. EUiott, for defendant.
BLODGETT J. This is a bill in equity seeking an injunction and 8Q-; counting bY'l'easom of the alleged infringement of patent No. 294,764, granted March 11, 1884. to Matthew Corcoran, for a "machine for truss.: ing tubs.» The patentee describes his invention in the specification as follows: "My invention has reference to improvements in macbineryfor trUSSing or setting having to the manufacture of b\lttertubs. which)atter are now in greatdeJDand as a means forpacking,preservIJ;lg, and butter. ,Sp,qhiwprov;ements consist mainly in nove. supPol:tingt):l(l, proper aoove eaoh·n*bert,Q receiVe and the employment of tp torce thesta,.v.es into 8uch ",hUe thelatter are 811pported incer., ta:in . The device covered by the patent consists of three standards placed at equal distances apart in.the,pedpbJerj"'of a circle,andin the inner faces of [which: reeesses are formed fprthe truss-hoops to res.t upon. These recesses recede from each other so that the upper ones hold the larger.. lized truss-hoops, as the tub is trussed small ends dowdwards. These recesses are so arranged. as ;toholdtbe truss-hoops.in ,place, and below "1." in the.drawings, is another recess, marked "2" in the;drawings, for holding a. removable bottom to the machine; a., ,that is, a bottom ,Which is hung upon a ]pyer,andsp,arranged as action of the foot1,lpon a treadle In,.l!oy ,'bepressed .up:ward of the staves wqile they are irrg put in place. After the staves ar/il properly a weightsu&-. pended over the machine is dropped upon the upper ends of the staves for the purpose of the staves to place. The patentee then describes the operation of his machine as follows: "The operator places his foot on the outer end of the iever, bringing'such end down upon the floor, and by the Same motion forcing the movable bottom up against the under edge of the lower truss-hoop. the trUSS-hOOps haVing
CREAMERY PACKAGE MANUF'G CO. II. ELGIN CO-OP. BUTTER TUB CO.
been placed in their several positions in the recesses,!. The sta\'es arEl then placed within the truss-hoops around the entire inner circumference of the latter. The upper edge of the lower truss-hoop is provided on its upper edge with an inward bevel to assist in gUiding the lower ends of the staves into proper position. The operator's foot is then withdrawn from the .lever, and the bottom thereby drops slightly away from the lower truss-hoop. The dropweight is then permitted to upon the upper ends of the staves, forcing the latter tightly into such truss-hoops." . Infringement is insisted upon only as to the second claim of the patent, which is: "(2) The combination of the standards, A, provided with recessess, 1 and 2, on the inner faces thereof, the truss-hoops, B, fitted to rest in such recesses, 1, the removable bottom, I, fitted to rest in such recesses, 2, the weight,G, arranged to be suspended over and dropped upon the upper ends of the staves, C, within such hoops, and the rope,H, substantially as shown, and for the purpose specified." The defenses insisted upon are (1) want of patentable novelty; (2) that defendants do not infringe. It will be noticed that the claim in question is solely for a combination of elements. It is not insisted that any of these elements are new, but that the combination is new, and, although the defendants have introduced a large number of patents, covering thEl whole. field of construction and trussings of barrels by machinery, I do not find in this mass pf testimony any such combination as is shown in t11e. complainant's patent. There is proof in the record of vertical standards. to hold the truss-hoops and I)f bottoms to receive the ends of the staves, but the proof fails to show a combination of recessed standards with the truss-hoops and the removable bottom and the driving weight, as claimed in this patent. It is also urged by the defendants' counsel that the bottom, I, provided for in the patent, is not removable, and that it cannot be bikeri out or placed into the recesses, 2, and that hence the claim is inoperative. This is manifestly a mistake of fact, as the drawings clearly show that the bottom, I, may be rellloved, and the . specifications: state thltt after the tub has been fired "the bottom, J), is bottCim,I,is placed in tQe lower recesses,2." No reason IS perceived, either from the specifications or the drawings, why this bottom, I, may not be placll,d in these recesses, 2, and removed therep.ot necElssary that it shall fit snu?;ly into these recasses;'Qut play enough may be given it to allow of sufficiEmt tipping to put the plate into and take it out of the recesses, and, inasmuch as the directions for use ofthe device require the bottom, I, to be placed in those recesses for the final process of tightening the any person constr1.1cting the marhine would provide room for taking out and putting in the bottom, I, from these recesses. Not finding in the proof.':! any anticipation ofthe combination covered by this second claim, and the utility of the machin,e being abundantJy shown, from the fact that it has gone widely into use, and that the defendants in fact !,lse it in substantially the form ofthe patent, I IIlust find .that the defense of wllnt of patentable, noyelty. is not sustained.. . . As to ,tpe, of it is .conceded thl,l.t the
:, 'FEDERAL' REPOR1'ER, vol, 43.
after,the q1rechons anA ,patent No. grant.e'd to F\.''\X:, lie Aodoupt fr6tU'aJ;l inspection of Ulrich's ,drawmgs and that princIple pf the, complainant's mMhi:Dehas beenltdopted in thedrawings,of that mar cHine. It is true thltt'the Ulrich'niaehine, instead of having three recessed standards to support the in' a horizontal position bas an witl1inwhich thetruss-ho?pa are placed; but this iron pot in no way differs in its operation from the Qomplainant's frameQr standards. ,The drawings of the UlJ;'ich, patent, 'Would seem to indioateltbat the bottom of ,the tub issoHd or integral with its sides, but the'pr8of $hQwsthat the lttachhies used by the defendant and which are Ulrioh :n? bottOm is used the same as IS proVIded for In the complainant's machme, so that, I see no escape for tbe defendan t upon tbe issue of' non-infringement:,:'The pot with 'the 'bottomrenioved is certainly nothing but the equivalent: of tbe complainant's recessedstalldards for supporting the ti'uss-hohps, and, as undoubtedly the defendant bas found itlpractical 'WOrking that II. remova!?lebbttom is necessary to the successful Use of the devic&,fheyhaveremoved'the bott6m,nnd conformed to the of anoperativEr'machine under the complainant's patent.' F'Or'these reasons I 'find tbat':thedefendallts baveinfringed, as charged'jin ihe bill of complaint, arid a decree maybe entered aecordingly,· 'With a 'reference toa master to inquire as to the damages.
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' After & patent; the infringement of Which has been enjoined, exp\res, the Injnnction will dj,ssolved withouli reference 1io such articles as were manfactured the patennvas alive. The paten tee may recover damages for Buch acts of infringement. ". "
(OircuitOourt, 8. D.ldwa. June 29,1888.)' ' : ,: ' TERM.
' ,Westinghouse J. Fairchild Carpenter for the 'of complainant's patent.'. ., J. SnO'liJden. Bell, Nathaniel French,· George H. (Jhl'iBty, William Bak6weU, £or- complainant. .', Banning & Banning, for defendant. Before Justice, and LOVE,'J.
On motion to
MILLER,';Justice.' We are of tbe opinion that theniotion ought to be 'granted. : The, attorney for tbe plaintiff practically concedes from the decisions ofthecourt8 on tbat suhject that tbe motion to dissolve the iJ;ljunction sho'UldJbe granted on aeCOUl1t of the expiration of the patent which expire,'! a few days ago with the expiration Of a prior patent. He, bowever, insists thatthlfinjunction should be 'continued as