they will not be permitted to plead that they were led to make the contract by false and fraudulent representations of the complainant, nor that the patent was invalid, as the complainant well knew. It has been held that if the licensee, under the assumed protection of the patent, has enjoyed advantages of which, without the license, he would have been deprived, he is subject to the obligations of the license, and continues so to be until he is disturbed in his enjoyment by a superior patent, or until the patent under which he acts has been declared invalid or annulled. 3 Rob. Pat. § 1251. and cases there cited. The amended answer differs from the answer, to which exceptions were sustained, only in that it avers that the complainant falsely and fraudulently represented that he was the inventor of the p'atented article in the license. The amen'dment does not, in my opinion, add anything to the legal effect of the answer. Leave to file the amended answer is therefore refused.
SUTRO BROS. BRAID
(Circuit Court, So D. Ne:w York.
PATENTS 'tOll INVENTION-DESIGN FOll BRAID-INFRINGEMENT.
Letters patent N(,.18,1589. granted to Valentine Schuck, September 4, 1888, for a design for braid covers. !> design baving when seen in cross-section, two extended flattened ellipti"al curves divergiull at an obtuse angle from each other. witb a third rib projecting from the center in the form of a convex curve, and smaller than tlle others, presenting tlle appearance of a trefoil. not infringed by a braid made in'two colors, and haVing four ribs, the two lower ones being smaller than the others. '
DavidA. Bu'f'll', for complainant. Alfred Ely, for defendants,.
COXE, J., 'fhis is an equity suit for the infringement of letters patent No. 18,589, granted September 4, 1888, to Valentine Schuck, assignor to complainant, for a design for braid. used in trimming ladies' garments and for similar purposes. The design shows a deep, central groove indenting one face of the braid, the opposite face being rounded and crowned with a slight, central, longitudinally projecting rib. In cross-section the design has the appearance of a trefoil or three-leafed clover, with the lower leaf smaller than the other two. The claim is as follows: "The design for a piece of braid herein shown and described. which consists in the form imparted thereto, which is defined in cross-section by two extended flattened elliptical curves diverging at an obtuse angle from each other to form a'central re-entrant angle or cusp at their intersection on one side, and which terminate on the opposite side in the intersecting lines of a ce1'!tral outwardly projecting convex curve of small diameter." The.defenlles are lack of patentable novelty, non-infringement and that the patentis invalid because the claim is indefinite and functional. The
SUTRO BROS. BRAID CO. V. SCHLOSS.
claim covers a design having, when seen in cross-section, the following characteristics: . First. Two extended, flattened, elliptical curves diverging at an obtuse anSecond. On the side opposite the cusp, a central rib, projecting outwardly in the form of a convex curve. Thi1'd. This convex curve must be of small
gle from each other to form a ceutral cusp at their intersection on one side.
diameter when compared with the other curves. diameter than the oblate curves.
That is, it must be of smaller .
Prior to the patent, braids had heen made in various forms. The old 80utache braid resembled the design of the patent minus the longitudinally projecting rib upon the lower side. Braid had also been made with four ribs of equal size. The defendants' braid is made of two colors -black and bronze-and presents the appearance of having four ril;>S, the two lower ribs being smaller than the two upper ones. The situation can be better illustrated by placing enlarged cross-sections of these various designs in juxtaposition:
It will be seen that in view of the prior art a broad construction of the claim is out of the question. A braid which does not present to the eye the characteristics so distinctly enumerated in the claim, namely, a three-ribbed design, in conformation like a trefoil, does not infringe. The test of infringement where design patents are under consideration is the substantial identity in effect produced by the two designs in question upon the eye of a general observer interested in such matters or an orcHnary purchaser of articles embodying similar designs. If he be not deceived, if it be entirely plain that he could not be induced to take the defendants' goods for the complainant's, there is no infringement. Walk. Pat. § 375. Tested by this rule the court is constrained to hold that the defendants do not infringe. If a purchaser should start ou t with the express intention of buying braid made after the design of the patent, it is not conceivable that he would buy the defendants' braid, and there is absolutely no proof that anyone was ever so deceived. In appearance it is entirely different from the complainant's. The use of two colors conveys to. the eye the impression of four ribs-instead of the three ribs
FEDERA-L REPORTER, vol. 44.
of the: patent·. The defendants' braid certainly looks as if it had. four ribs, and, if the testimony of the patentee can be relied upon., it, in fact, has fOQrribs;. Mr. Schuck was asked. on cross-examination the following questions: . "Question. Will you take this exhibit [defendants' braid] and say how many ribs there are on that? Answer.'fhere are four." On: his redirect examination he emphasized his former answer as follows: "9. 'In yOllranswerto cross-question 99 you were asked to take defendants' braid and see how many ribs there are in· ii, and answered' There are four,' what do yOIl understand the question to refer to? A. I understood it referred to ribs.Q. What are riLs as you understand in the defendants' braid? A. Those corners of the braid I called ribs; there are four ribs on that, two small andtwo large After all this, the theory that the defendants' braid has but three ribs cannot be maintained. As the defendants do not infringe it is unnecessary to examine the other questions presented. The bill is dismissed.
(District Court. D. South Carolina. December 14, 18llO.)
WUJU.1I"l' OF ARRBST-ISSUANOB ON SUNDAY.
A warrant of arrest may issue in admiralty on Sunday, where a vessel has changed her day for sailing, and proposes to sail on that day. and a libelant for seaman's wages did not learn that his wages would not be p81d in time to begin his case before that day.
C. B. Nflrthrop, for libelant.
SIMONTON, J. The libel is for seaman's wages. Libelant moves for a warrant of arrest, as the vessel is about to proceed to sea. The only question is, can such a warrant be issued on Sunday? . The law of South Carolina forbids the service of civil process on Sunday. This regulation is purely municipal, and can control only the process in the state courts. If it can be construed to apply to process on the law side of the courts of the United States, under section 914, Rev. St., it cannot be made to apply. to process out of the court of admiralty, which is expressly excepted from this section. The question now madeis entirely new. There are no anthQrities in point, and very few bear on the question. .Mr. Desty, in his little book on Shipping & Admiralty, § 181, says that Sunday is not recognized by the maritime law. Although the authorities he quotes do not bear him out in this broad statement, (Th8 Richard Matt, 1 Biss.440j Johnson v.The Cyane,l Sawy. 150,) it seems to have support. Sailors can be made to work on Sunday notwithstanding .that a law of the port mllY forbid it. Ulary v. The Waahington,
Crabbe,208. A vessel can leave a port on Sunday, although the Jaw of the port may forbid travel on that day. GRIER, J., in Philadelphia, W. & B. R. Co. v. Philadelphia, etc., To1b-Boat Co., 23 How. 209. This court is always open for the redress of wrongs. Seamen specially are under its protection. In the present case the vessel has unexpectedly changed her day for sailing, and has anticipated it by proposing to sail to-day. The libelant did not learn that his wages would not be paid in time to begin his case before to-day. In this view of the case, and in the absence of authority to the contrary, let the warrant of arrest issue.
THE SAPPHO. 1 BROOKLYN WATER FRONT WAREHOUSE & DRy-DoCK Co. ". THE SAPPHO. KNUDSEN fJ. BROOKLYN WATER FRONT WAREHOUSE & DRy-DoCK Co.
(1X8trWt Oourt, E. D. New York. December 28,1890.)
A dry-dock company applied an hydraulic jack under the keel of a vessel in Its dry-dock, whereby the keel was split and the vessel Injured. It appearing that the keel was sound and stron//:, and that the cause of the accident VIall the failure of the dry-dock company to take the ordinary precaution of placing a plank between the keel and the head of the jack, heZd, that the dry-dock company was liable for the damage.
In Admiralty. Suit to recover for. services in dry-docking vessel. Cross-suit for damages received by vessel while in dry-dock. ' Peter S. GUrter, for the Brooklyn Water Front Warehouse & Dry-Dock Company. North, Ward &; Wag8taff, for the Sappho.
dock, shifting the blocks, etc. The cross-libel is filed by the owner of the bark to recover for injuries alleged to have been done to the vessel while on the dock by the negligence and want of skill on the part of the dry-dock company· The dry-dock was made in sections ofabout 25 feet in length into which the water was allowed to flow to depress them, and when depressed the vessel was floated over them and raised by them by pumping the water out of the sections. Upon these sections blocks were placed at intervals upon which the keel of the vessel rested. When a vessel is to be coppered-as this bark was-while on the dock, the portion of the bottom where the vessel rests upon a block is covered with copper either by placing a sheet of copper on top of the block before the vessel is raised, or by shifting the block under the vessel after she is raised. The block is shifted by placing an hydraulic jack under the keel of the vessel and resting on the edge of one of the sections of the dock, so that by
to recover the sum of $415.50 for hauling the bark out on the libelant's
These are cross-libels.
The action against the bark is
Reported by Edward G. Benedict,Esq., of the New York bar.