.. ; COLLING ,".
plainants,are valid claims, and that they have been infringed by respondents.' Ris claimed that this patent is anticipated by respondents' pat. ent to Angel and Kendall as it is older in date, because it is claimed that the date'bnhe filing of the Solter patent found on the patent, is not evidence of the date of filing. This objection was not made till the testimony was all in, and till the argument made by defendants' counsel. The date of filing is always indorsed on the specifications, ana a copy of the specifications and drawings iSl'equired:by the statute to be annexed to the I do not see why the specifications and indorsements thereon, required by the statute, constituting a part of the patent issued under the. signature ,and seal of the proper officer, are not evidence of the date It is an official document. and the indorsement.ig a part oftherooord. No suchohjection has everbeen taken before me·before. ang tile qate of filing has without objection, heretofore, been taken as true. Ikl,lQW of no decision of the courts holding that it is not legal evi.. dence Qf,tlle,dll.te of filing. Bllt, however that may. be, this patent was not plead,ed ,as an anticipation, IJnd was not put in evidence for any such purpose, and it cannot nQwbe considered for that purpose. It, is not necellsary to determine at this time whether respondents continue use all the elements of each of these claims, Qr substitutes therefor. Xt is,enough that prior infringements are shown. If one elem,ent of apyclaimhasbeen wholly omitted in machines now in use, and no substitute .thl;lrefor used, of qourse respondents have ceased fringe that claim, and respondents are only liable for infringements of such claims as have been actually infringed, whilethe,infringement continued. Wb.at the extellt of the infringement hl!8 been, and how long continued, will be questions for. the and determina; tion of the master, on the accounting. Let an interiQcutory decree for complainants be entered as to the claims and patent.j3 'bereinbefore indicated, as being valid and having been infringed,and the case referred to the standing master in chancery to lIrscertain and report profits, damages, etc., and if the parties desire it, with to, a'l appeal, it;may, be .proyided, that the master ascertain and report the. proportion Or amount of the, profits and damages due tQ the. of claim 7.
(Circw!t OdUn't, N. D. OaZifornf.a.· January t9,l89L)
PJ-TEN'M POD INVBN'I'IONll-INPBINGlilMENT-WEIGll'l' OF .EVIDENCB. , In. ,1I,I1 actio,n for infringing a patent for belts, defendants
answered, deroath, denYing thattMy had ever used the invention or infringed the patent. It was ·admitted. however, that,oneof tbem made abel1;j but he.testified that 4__ destroyed it without ever. using or attempting to sell ,it.. Complainant testifie4 that 011e of defendants shoWed him a belt like his own, 'au'd 'offered it for sale; A wUbess· :nid. that deten'dants'showed him: a andoteered it for aa,!.e.;
Another witness said that the wife of one of defendants showed· and oft'ered to sell him such a belt. In answer to a letter notifying him that he was infringing the patent, one of defendants answered, through his attorney, that complainant had .copied the belt from him, and must disclaim, or be prosecuted for perjury, and damages. There was other similar evidence. sufficient to show an infringe. mento '
In Equity. HAWLEY, J., (orally.) This is a bill in equity, alleging an infringement, bY'defendants, of complainant's patent on electric belts. "Then complainant applied for a patent in the patent-office, the defendant J ackson interfered to prevent the issuance of the patent. The day set for filing preliminary statements having passed without any action being taken by 'Jackson, judgment of priority of invention was rendered in favor of complainant, and as no appeal was taken that judgment is finat after denying that complainant was the inventor, deny that they, or either of them, have unlawfully used said invention, or fringed upon said letters patent, or intend to do so. The answer is under oath. The case turns upon the question whether there is sufficient testimony to authorize this court to find that defendants have made, used, and sold electric belts that were an infringement of complainant's patent prior to the filing of his bill. To overthrow the averments in an answer under oath, denying the material averments of the bill, it reqUires the evidence of two witnesses, or at least one witness, and other circumstances equivalent to 'a second. 'Sles&ing(Jl' v. Buckingham, 8 Sawy. 469,'17 Fed. Rep. 454. Is the testimony governed by these rules sufficient to authorize a recovery in this case? In the consideration of this question it inust be borne in mind that electric belts can be made in secret"and when sold are worn upon the person, and nl)t exposed to public view; that if the party making and selling the same uses precaution, he can prevent publicity in regard thereto. The discovery of the ing, using, or selling could be llscertained in many caSes by mere chance or accident. ' It,is admitted in this case that the defendant Jackson made a belt prior to the'issuance of the patent to complainant. Jackson, however, denies that he ever used it, or attempted to sell it, and testifies that he destroyed it. He claims that he has never made, used, or offered for sale any belt that is an infringement upon the patent of complainant. The defendant Arnold makes the same denial. Complainant testifies that the defendant Arnold showed him a belt that was exactly like his own, and offered it for sale. The witn,ess Coughlin went to the defendant Arnold's office in company with the defendant Jackson, and testifies that Jackson showed him a belt identical with complainant's, and that it was offered for sale. Complainant was unknown to defendant Arnold at the time of his first visit. He afterwards notified Arnold who he belt previously was, and that hewasan inventor, and had shown whim. The defendant Arnold, after being thus notified, told ihe compl",inant.that he considered· him unworthy of belief; that he was an old sailor, 'and a fraud, and that the belt was invented by defendant
'UNITED STATES ". THE FRANK SILVIA.
Jackson, who was 8 mechanic, and said to complainant that he would make and sell all lie 'cob.ld. Jackson, through his attorney, in answer to a letter notifying him that he was infringing complainant's patent, said that complainant had copied the invention from him, (Jackson,) and that Colling must disclaim or be prosecuted for perjury, and damages. The witness Sherw()od testified that he called at Jackson's house; and asked for electric belts; that Mrs. Jackson showed him a belt, a similar one to Exhibit C, offered in evidence. She offered to sell the bl:lit to him, but said she would rather the witness would call when Mr. Jackson was in, because he had the day before given her a great scold'ingfor exhibiting belts;for fear it might get him into trouble. The testimony of the defendant is in many respects secretive, evasive, and unsatisfactory. Especially is this true of the testimony of Jackson. Upon the whole case, after a careful consideration of all the testimony, I am of opinion that complainant.ih entitled to recover. Complainant's counsel will prepare and submit the usual decree in easel;! of this character, that· there has been ani<nfringement by defendants; with an order referring the case to the'111aster in chancery to ascertain the damages.
UNITED STATES'll. THE FRANK SILVIA.
(Circuit Oourt, N.D. California. February 23,1891.)
Under Rev. St. U. S. § 4499, providing that vessels violating the law relating to the carrying of passengers "may be seized .and proceededagaillst by way of libel," in the district court) such cOurt 'hM no jurisdiction until there has been a seizure of the vessel. ReverslDg 37 Fed. Rep. 155.
John T. 'Carey, for libelant. Milton Andro8, for claimants.
In Admiralty. Before
Appeal from dIstrict court. Judge.
SAWYER, J. Since the order of proceeding required seems purely technical, I regret to say, that.Ishan be compelled· to sustain the point as to the jurisdiction. The libel of information in the case is promoted to recover a fine of $500 under title 52, c. 2, Rev. St. U. S. §§ 4499 and 4500, for carrying passengers without complying with the terms of the title.. The point is made, that the district court does not appear to have acquired jurisdiction, before filing the. libel, by a seizure ·of the vessel by the collector, or other executiverofficer ofthe government. There is no allegatiQn that any seizure was made, and, I understand, none was, in fact, made. A seizure of the vessel before filing the libel is necessary to give jurisdiction. This has been settled by numerous cases. The first appeal in v.45F.no.9-41