(C'ltcuCt COUrt., W. D. Pennsylivania. November 18, 189L)
PATENTS FOR INVENTIONS-JURISDICTION.
In Equity. Motion for a preliminary injunction. Germain is a manufacturer of wooden mantels, having his factory, residence,and place of business in the state of Michigan. Monroe, who is an inhabitant of the western district of Pennsylvania, acts as the agent for the sale of the Germain mantels in this district. Complainant. has filed his bill against Germain and Monroe jointly for alleged infringement of design letters patent by the sale of such mantels; service of the writ being made on Monroe personally. and also as the agent of Germain. Motion being made for a preliminary injunction to restrain the alleged infringement, counsel for Monroe, without entering an appearance for Germain, contend that under the act of congress of 1888, c. 866, § 1, Germain not being an inhabitant of the western district of Pennsylvania, this court has no jurisdiction in this suit as against him. They also contend that a preliminary injunction should be denied, because both complainant and respondents commenced the sale of the mantels alleged to have the designs claimed in the patents prior to the grant of the patents; because· complainant, after the grant of the patents, failed to mark the mantels patented; because there is proof of .but a single infringing sale of 35 mantels by Monroe, which sale was made shortly after the grant of the patents; and because it does not appear that Monroe at the time of this sale had knowledge of the patents. W. L. Pierce, for complainant, cited the following authorities on motion to strike off service:
Riddle V. Rall1'oad 00.,39 Fed. Rep. 290; Hayden v. Androscoggin Mtlls, 1 Fed. Rep. 96; 2 Pars. Cont. (Ed. 1873,) p. 580, note X; Pa. April 21, 1858. (1 Purd. Dig. p.58, § 9;) Kieley v. Mc(}lynn,21 Wall. 520: Holland v. Ohallen, 110 U. 8. 15,3 Sup. Ct. Rep. 495; Estes v. Belford, 22 Fed. Rep. 276; Zambrino v. Ratl1'oad 00., 38 Fed. Rep. 455.
MareellUB BaiJ,ey and W·. BakewcU & S0rt8, for Monroe.
REED, J. :After a careful.examination of the authorities cited by complainant's counsel, I am still of the opinion that the bill cannot be maintained against Germain by' service of a subprena upon his agent in
this state. To hold that Germain became an inhabitant of tliis state, becau!\e he has a regular agent here for the sale of his goods, would be an extension of the meaning of the act of 1888 far beyond any reported case that I can find, and I think contrary to the spirit dfthe act. As to the defendant Monroe, my judgment is that, upon all the affidavits and facts at the hearing,a preliminary injunction ought not now t'o . The only clear evidence of infringement is contained in Mr. MOllToelsa.ffidavit, in which he admits the salaof 35 mantels of the variolis designs covered by complainant's patents. These were sold in 1890, very shortly after the patents were granted, and before tlleir'yaUdity had 1;>een established.. He swearS that at that time he had of the existence of the patents, and it was shown that sales for several months, by both complainantaJ;ld the defendants, before the granting of the patents, so that it is reasonable to believe that he did not know of the patents. He denies that he has taken any orders for or sold any mantels of these designs' -since he received notice frOm the complainants of his ownership ·of the patents.' No evidence has, been furnished by the complainant'to disprove these statements, and the'pase, rests upon the sale of tile 35 mantels, which, under all the cirwould not warrant the granting of the preliminary injunctiQn. ,The complainant lilay at any time hereafter, however, renew his motion, if he should discover evidence of further infringement. The moti9Jl must be,for the present. refused j and it is so ordered.
(C'i1-CJ'lHt Oourt of Appeals.. Third Oircuit. November 18,, 1891.) .1
1.' ;L"ATBli1'TII, ,.OR· INVEN'l'IONS-AN'l'ICIt'A'l'ION-A'BRA'l'ING BEER.
letters patent No. 9,129, issu.ed March 23,1880, to William Zinsserand August Zinsser, lis assignees of F. C. Musgiller and Robert W. Schedler, for an improve\! of charging beer and other liquids with bicarbonate of soda or other alkali, by mixing the. same.witha proper .cement and compressing it into lumps which will at once sink to the bottom of the vessel, and thus give off the acid grad. ually to the whole body of liquid above them, are void because of anticipation by various English and French patents for aerating different liqUids with gas producing salts compressed into lumps.
SUJE-ApPLICATION OF OLD PROCESS TO NEW PURPOSE.
Tlle fact that the anticipating processes were used in treating water or neutral liquids. while the patent was for treating beer and similar liquids, is immaterial, as this Wlis merely applying an old process to a new, but analogous. subject. 45 Fed. Rep. 572. affirmed.
In Equity. . . Suit by William Zinsser and August Zinsser against Gottfried Krueger for infringement of patent. Decree declaring the patent void because of anticipation and dismissing the bill. 45 Fed. Rep. 572. Plaintiffs appeal. A. '1); BrCisen, for appellants.