(Oircwlt CO'Urt; S. D. NeW Yor7c. December 26, 189L)
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PATB1f',r8 1'OR INVEl'lTIONfl-INFRIl'lGEMJINT-DBMURRER TO BILL-JUDICIAL NOTIOlil. ,
When a bill for infringement is demurrl!ld to on the ground that the patent on its faoo Is void for want of patentable, invention. in view of old and well-known devices, court will not take Judicial notice that certain similar articles exhibited at the argument were in use before thEl date of the patent, when it has the slightest doubt , tllat Buch was the fact. '
Equity. Bill by Lalance & Grosjean Manufacturing Company IJgainst JuliusE. Mosheim for infringing a patent. Heard on demurrer to. the bill. Overruled· .Arthur v. Briesen, for complainant. Robert N. Kenyon, for defendant. COXE,J. The defendant demurs on the ground t,hat complainant's patent is, o,n its face, vojd for want of patentable novelty in view of old and well-known devices of which the court will take judicial notice. The patent No. 285,645 was granted September 25, 1883, to Milligan and for an improvement in enameled iron' wash-basins. At the argument various structures' alleged to have been in use long prior to 1883 werep:r:oduced, which, if properly proved, would strongly tend to support the defendant's contention. Though many of these, certainly, had a familia:r appearance, the court could hardly say with absolutecertainty that such structures were inexistence prior to 1883. The authorityof a judge to substitute his knowledge for legal proof should be exercised with, the utmost caution and only in. the plainest cases; 'If there be the doubtit is by far the safer'way to permit the cause to, in the usual,manner. Bll'ssing v. Oopper Works, 84 Fed Rep. 75!3;EclipM;(Jo.V, Adkins, 36 Fed.:Rep. 554; Standard Oil 00. v.Souther:n Pac.C'Q.,,42 Fed. Rep. 295.' In New York BelfJing&: Packing OJ. v. New Rubber 00",137 U. S'. 445, 11 Sup. Ct. Rep. 193, the question of patentability waS presented by a demurrer. Thesupreme court say,: , "We ibins,that the demurrer should have been overruled. and that the defendant$ lil,hould have been put to answer the bill. Whether or not the design is new a,9,uestion of fact. which, whatever our impressions may be·. we do not think i.t vroper determine by taklng,judicial notiee,ot the various designa which may'have l!OmeJutider·our obser'Vation. It Isa question which may and should be raised by answer aDd settled by proper proofs." . ' The other point-that the claims are void in view of the state of the art disclosed by the patent itself-involves a construction of the patent which it would be unsafe to undertake in the absence of explanatory proofs. For these reasons the demurrer must be overruled.
ENTERPRISE MANUF'G 00. OF PENNSYLVANIA 11. SARGENT.
ENTERPRISE MANUF'G CO. OFPENNSYLVANJA V. SARGENT
(Circuit Court, D. Connectteut December 23,1891.)
PATENTS FOR. INVENTIONS-INPRINGEMENT-VIOLATION OF INJUNOTION-CONTEMPT.
Defendants, having been enjoined from infringing the 1st, 2d, and 6th claims of letters patent No. 271,398, issued January 30, 1888, to J obn G. Baker, for a machine for mincing meat, etc., constructed a machine in exact accordance with those claims, but having in addition thereto a detachable frame containing .three stationary blades which the meat is pressed by the forcing screw, thus cutting it to some extent before it reaches the rotating knives.. Plainti1r moved for an attachment for contempt, on the ground that tbe de-:.achable frame was of no practical value, but defendants filed affidavits alleging that with tbe attacbment from 21 to 38 per cent. more meat was cut than without it. Held, that tbis presented a new qUElstion, which could not be tried in a contempt proceeding.
In Equity. Motion to attach for a contempt in violating an injunction. Charles Howson and Charles E. Mitchell, for plaintiff. John I(. Beach and Edmund Wetmore, for defendants.
SHIPMAN, J. This is a motion for attachment of the defendants for contempt for the alleged violation of an injunction against the infringement of the 1st, 2d, and 6th claims ot: letters patent No. 271,398, dated January 30, 1883, to John G. Baker, assignor to the plaintiff, for a machiue for mincing meat and other plastic substances. The construction of the machines which were the subject of the controversy upon the previous hearings, the principle and characteristics of the patent, and the nature ofthe difference between the patentee's device and its predecessors, were explained in 28 Fed. Rep. 18.5, and 34 Fed. Rep. 134. The new machine of the defendants, which is the subject of the motion, is the Baker machine, made in exact accOrdance with the pat'ent, so far as the 1st, 2d, and 6th claims are concerned, with the lowing addition: The forward edge of the end of the forcing ecrew is enlarged into a lip having a sharp edge. Between the outer end of the forcing screW and the rotating knife is a stationary, but detachable, frame, inwbich are three stationary blades. As the forcing screw re;volves and delivers meat, the meat is, before it reaches the rotating knife, cut, toa certain extent, between the sharp edge of the lip of the screw and the three stationary blades within the frame. The theory of plaintiff, when it brought the motion, was that the three-bladed detachable frame ,was a thing of no practical value or importance, and was not expected,by its makers, to be of assistance in cutting; and, furthermore; that it could be taken out of the machine and laid aside without afl'ectz. ing the usefulness of the structure. The affidavits of the defendants strongly tend to the conclusion that it aids in the cutting of meat. The tests which the defendants made were, if accurate, to the effect that the new machine delivered, with the same number of revolutions and under the same circumstances, from 21 to 38 per cent. more cut meat than the unaltered Baker machine, and, for the purpose of the decision of this motion, I must assume that the addition of the three-bladed frame en-