HAY" 'IODD MA.NtJ'ir'G ,00. !1. VAiN 'DYXE
.:CoXE,DistrictJudge. :The commissioner has found that in the spring of 1891, the petitioner, a Ohinese laborer, was at Toronto, Oanacla, and: thereafter came to this couJitry. This fiqd\ng cannot be reviewed upon this proceeding, and must be taken as an established fact. I· have reexamined the light of these .facta' and am of the opinion that' the case of Wan S1iing v. U. 140 U. S. 424,11 ,Sup. Ct. Rep. 729, is controlling upon all presented upon the argument. I have read the decision of Commissioner STRONG and, ameur with his conclu-' sions. The petitioner was in GanadalLIid could not legally enter this country. Application. denied.
,NoTE. The marshal ml/ode !'eturn tbat he was unable to execute the judgment of tbe court for tbe reason that he had no money witb whioh to pay the "head-tax" cbarged by the Canadian government. Due notioe of hlWing been given to the department of justioe, and no b4Ving been provilied, it was afterwards.,on motion of United Statu district attorney, ordered that the petitiqner, Don On, be dillcharged from CWIt0d7.
HAy & Tonn
Co. ,i. V AN DYKE
Co. et aL
PATBN'l'll POR INVBNTIONa-:-AlifTIOIPATION-LAnIBS
Letters patent No. 857,127, issued February 1, 1887, to, William lI'. Kneip, are for an improvement in ladies' drawers, in whioh each half o.f the garment is composed of two' pieces, one running the whole length, and being (lnly wide enough at its widest part to encircie the leg, and the other.of a strip generally rectangUlar in form, and nttached at one of its longer sides to tbe vertical rear edge, ()f the body portion of the iarger piece. and at its lower end to the front margin, of the main ,tbus giving the fullness in,tbe !'ear rendered necessary by the contour of the tl,gure. 'Held. that tbe pstentwas anticipated by the Bradley patent (No. 198.5OlI) for a eombination garment, the lower portion of which was oonstruoted in substan. tially thl! same manner· Letters patent No. 874.807, iS$ued Deoember 6, 1887, to tbe same person, claims a combination garmllnt, comprising body and leg portions, made continuou$ with eacb other, 1.11e garment being separated at the back to a point above the waist Une, and having strips inserted in the back, and secured, at one of their longer sides, ,to the edges of tbe main part of the garment, at their upper ends to both rear edges of the separated main parts, and at their lower ends to the front edges thereof. The speciftcations state that the upper ends of the strips are tapering, and attacbed at both of their tapered edges to the margins of both adjacent edl/:es of the main parts, and tbat "it is obviously not essential that the top and bottom ends of the inserted pieces sbould be sbaped exactly as shown," and that in practice their form "will be mCldifled to give a desired form to the garment, or to correspond with modifications' in the shape of other parts." Held, that this part of tbe specifications was essentially descriptive of the invention, and as the olaim, thus broadened, would cover the Bradley patent and also the inventor's prior patent, the same was anticipated by them.
.. BAMB-CoMBINATION GARMENTS.
In Equity. Bill by the Hay & Todd ManufMturing Company against" the Van Dyke Knitting Company, John H. Van Dyke, and John H. Van Dyke, Jr., for infringement of a patent. Bill dismissed. Poole & .Brown, for complainant. ' Van Dyke & Van Dyke, for defendants.
" :GREsHAM; :Oircuit Judge.. On February 1, 1887 ,'patentNO. 357,127 iuued to William F. Kneip for an improvement in drawers!, 6, 1887, patent ,No. 374,807 issued to the same person' for improvements in an under-garment' of the kind known as: combbaatiQn gartiients.Thesepatents .were assigned to ,the Hay &. Toad }faliufaeturing Company,ahdthis suit was brought by the assignee against: the Van Dyke Knitting Company, John .H.. Van Dyke, and John H; Van Dyke,Jr., for.infringement.While not limited. to any: particul.ar. kind· of .material, the, invention covered by ,the first patent relates more especially to a construction of,ladies' d1'f!.wers out of fabric knitted flat, and wide enough to fold around the leg, but not of the lower part ofthe body. The patent shows. a. siu'glepiece the, rear edge of the body portion of the ,the lower end .e:ltt'endingd9vvn to the which runS up the inside )6r the leg, with the under edge attachedw the edge of the front upper part of the leg, and the side edge attached to the rellr edge of the upper leg and body portion,of the main piece. This added piece gives the desired width to the body portion of the garment, and the fullness in the rear rendered necessary by the contour of the figure. Hs lower end, f9,rD;ling a g9SSE;lt OF g9:1;eat inner upper e9dofthe)eg, gives the garment the requited fullriess, and Emables the front portion of the main part to conform to. the fr0D/- of the figure. The garment consists of two vertically divided halves, united in front, and provided with a string or other fastening at th,e rellr epds of the ,waistband. The specipcation thus described the invention: ,'.' In acco],'dance. wtth my invention;. ,each side or halt thereof is joined at the waistband in front, and is open behind in the nsual mannen lind each half, including the leg and bodypol'tionthereof. consists ,One of sa.idparts forms the main body of the garment. and is (armed 1:11 a piece of fabric extending the full length of the garment, and bavinga.width at, its widest part onlyjsufficient to make the leg or tubular part of the garment, and the other of said parts is a strip of fabric, generally rectan,gular in form, and at one of its longer edges, to the vertical of the main part flrstmentioned; and at its lOwer end"or shorteredge.tptbe lower portion of the front.margin of the said main or body part. The said rectangular strip is made of the same length 8S the freeedgeonhe main portion, measured from the upper end of the leg seam to the waistban!l. and Of such tMt, when sewed to the main part, the garment will be sufficiently large at the body or waist portion." The l'lpeCification also states: ..A advantage gained by the novel construction above described is iti,the uppel,' and rear part of the garment necessary to a perfectandTcomfortable Ilt is thereby obtained, while at the same time the article consists of but few parts. of simple shape, which can be readily put together. The novel construction comprising my invention has especial advantagil8 j\S applied to k,nit ,goods of that ldnd made upon a Lamb machine, for the reMan tbatthetwo parts above described M constituting each half of the garm.ent m,ay J:>e readily and easily made upon a machine of this character. Sullb machihes are ndt usually aqapted for. knitting a very wide web. and, by reason of this fact, knit drawers produced by the U'se Of these machines have usually been made of four main parts, each half consisting of
BAY'" TODDHANUF'G'OO. V. VAN DYKE KNITTING 00.
two parts tnucb.w;ider at their upper than at their lower parts·.and united at the inside of the leg. as above described. " It is further stated in the specification thllit the parts of the garment constructed as describedma:y be attached to the waistband, or otherwise connected,as may be convenient or desirablej that the main feature of the invention is found in a garment embracing the two main or body pieces, in combination with the two inserted pieQesj and that this con.The single claim struction is claimed broadly I without reads: "The garm.eutberein described and shown. each part or half of which consists ota part. AI, united ,at the lower portion of its side margins to form tile leg., and a part.A2. of generally rectangular shape, secured at one of its longer sides,and ,at its lower edge or end to the said part AI." .. , . The invention covered by the second patent relates to a. combination intended more particularly for ladies. The body and are of one having an opelliQ.g in the rear extending upwardly from the crotch, with pieces attached adjacent to the opening to keep it closed, and thus cover andprotect the boqy. These pieces are elongated, their ends pointed or gore--shaped, and they are secured on one side, throughout their en,tire length, to the rear vertical margins of the main parts of the garment from a point below the crotch upwardly, while the tapered ends are secured on the other sides. Inserted, as stated, .at their lower ends, these pieces enlarge the ,diameter of the upper part of the leg, while their free edges, extending across from oue side of the garment to the Qther side, ,close the opening at the rear. The specification says: "The upper .eodEl of the additional strips referred to are made tapering or attached at both of their tapered edges to the margins of pointed. and both adjacent edges of the main parts of the garment. . '" * '" It is obviously not essential that the top and bottom ends of the inserted pieces, C, C. should be shaped exactly as shown; and, in practice. the form of the said pieces will be modified to give a desired form to the garment j or to correspond with modifications in the Elhapeof the other parts comprising the same."
" ' ,
The patent contains but a single claim; which reads: "A combination garment; comprising body and leg portions, made continuous with each other, and separated at the back of the garment to a point above the waist line. and strips. C. C. inserted in the back. of the garment. and Elecuredat one of their longer sideEl to the edges of the main part of the garment, Said strip!!l being attached at their upper ends to both rear edges of the separated main parts of the garment, and at their lower ends to the front edges of said partEl, sUbstantil\lly as described."
If there is any substantial difference between these patents. it is slight. The combination garment covered by the second patent, below the waist line, is substantially, if not identically, the garment described and covered by the first. The lower ends or the added pieces are of the same ahape-gore-like-in both patents, and they are inserted in the crotch for the same purpose, and produce the same result. If there is any substantial difference between the inventions, it is found in the. attachment of, the upper :ends of the inserted pieces in the second patent. ville E. Dayton, the only expert witness for the complainant, testifieditbf4
. ;'FBDJmAL',REPOM'ER t
vol. 49. ',: , .
i . j·
the' iir$,t oVerlap'as'they do in the second; that by tltPe";' that the: only the two in\7entiona :iff that, in the' !lecond .patent, the addetlr:pi'eces'/ere' made' periil'anently tilst" hy .Sewing' or.· other" wisal'to oneistde of 'the garment,somewhat less' thilO ':half their length ifum the top!" whilethe:'Otbersidesarepermanentlya:ttached from top tobotUlw; .' This attachment of :the 'pieces, causirig them to permaMntlyoverJapjhe thought wa$ the feature of novelty, in the second over the first patent. He did not limit the invention to inserted pieces Vshaped at theifr,.upper ends; Conlbination : were old in befol'8,Kneip obtained either of his patilllts';' and, if Dayton's contJtrubtion of it was by the Bradley patent No. 1'98,505, for an' improvement in combination garments, and by other piitents of the same .class. It ie'true that, in the first Kneip patent;' the upper ends of the added pieces are not V-shaped or sharp-pointed,' but, Kneip patent is not limited to pieces so shal-itid at the'wp.' " .' .;, i'" is obviously not "saY8'thespeciti'cittion, top an'dbottom 'ends of inserted pieces should' be shaped exactly as shown; and in' 'practide 'the form of the said pieces will be modified to give desired fOrm to the garment; or tocorresporid with modifications in the shape oHheother partscomprisirigthe same." This was used, not for or explainihgthe invention, but as descriptive of . It 'clearly manifests an intention not to limit the cJaiinto added pieces gbre-shaped;e>r sharp-pointed at their upper ends, but to cover pieces with their upper ends sharp-painted or square, and attached to the i garment by a horizohWseam, .as· in the Bradley patent. Thelatter pateq't shows the added pieces iriserted at the crotch, and otherwi/36, attache,dJB the 'main body partS of the 'gal'q1ent, as in the first Krieippatent, "blCh was clearly anticipated, and practically abandoned in the argumeI\t. The combination garment, below tlle waist line, was old in the art. ····J:t was shown in the Bradley and the first Kneip . Jt. follows the secon.dKneip patent is patent, and in notlimite4 tpaddedpiec(ls sharp-pQin!ed or at the top,it, too, anticipated by the Bradley patent and the ii.rst Kneip patent. It so limited by its language, and the complaint's expert did not SO limit it. Thelanguage quoted from the specification was used, not, as above stated,to illustrate or explain the operation of the invention, but tdbroaden the claim. If this patent the Bradley patent, it would doubtless be said, and with force, that it was infringed by a garment made in accordance with thfl latter invention, showing the inserted, pieces sql1are at their upper ends, and there' secured bya horizontal seam. Itjs true thatlllnguageemployed in a specification to illustrate orexpJaintheoperation of an invention should not be read into the claim to broaden and destroy the patent. BuHt is also true that statements in a-patent, .employed, not to illustrate the operation of the invention,but to describe'it, are material,and cannot be disregarded in determining the scope and, breadth of the claim. The bill is dismissed for want of equity.
THE LA NINFA.·
F'Ismmms.,-BmUN&Su-FoBPBITUaB 01' V ' B I ! S E L . , · . ' , a,nA.mElrl,can vE!ssel on a voyage t$ltEm tbe do, 'minion of' tbe UniWd l3tates, in Bering' sea, .sbe is subjec'ttc forfeIture, under . Acts. Congo July 27. lS68,.and MarClb 2. is not exempted by the foot that. after. the sllal,r slle lloarded \)ya U ni,w,t} revenue served with the pteS1dent'li proclamatIon, and warned to leave the se" after which abe makea nofulltber attempte to.make seal. " .' , . .' '. .'
"InAdmiralty. / ; The\Tesselwllsrlibeled for'8'Violation,of'section 1956, Rev. St. U. S. This section, as passed J u]y27,1868,providedthat "no person shall kill any * * ,fur 'seal ** '" :' "within the limits of Alaska territory, or. in the w!lters thereof,,' * * *, and all veSsels, their tackle, apparel, furniture, and cargo-, found in violation of this section shall be forfeit,M." By an act approved March ,2, 1889 t , the' section. above quoteq. wasdec]ared "to include and apply to all the,domihionof the UIiited Stales· in the waters of. Hehring!t!ea," and thSit it should be the duty:of the president, attLny timely seSiSon in each year, to'issue his 'proclamation, and:cause same to be published, warning all persons against entering said waters for the purpose of violating .the provisions 'of said section; and that he should cause one, or 'more vessels of the United States to diligently cruise said waters, and arrest all persons and :seize all vessels found to beortO.jhave been,engaged in any violation of the laws .ofthe United States ,therein. 25 U. S. St. at Large,p. 1009. Iffhe proolamlJ.tionabovepro'rided for was issued president on IApri1.4,1891. ld.p. On the 15th day of June,:1891, another pr()clamation was made by the. president, reciting that an agreement, had ibeen .made"between. the government of the United States and the gov,emment ,of her Britannic majesty for modus vivendi in relation. to the fur Elea1 fisheries. in Behring sea, fot· the purpose of avoiding irritating dif'ferences" and with a view to. promote the friendly settlement. of the qnestionpending between· the two· governments touching th$u: respecliye 'rights in Behringlilea, and for the preservation of the seal species." By that agreeJDent this government. bound itself to. the government of her 'Britannic: majesty to prohibit seal. killing until May, 1892, in that part of. Bering se,a lyingea.stwurd:the line of demarcation described in article No.1 oitha treaty of 1867 betwoonthe United States.and Russia, anuon the shores and islands thereof, the' property of the United States, ine:x.eeas., Qf a certain number, and tQ pl!om ptly use its best efforts· to tb.e:;observance of this prohibition by United States citizens and vessels. The agreement fUdherprovidad' that "every y,essel or pel.1'lOn offending against this prohibition in the said waters of Behring sea out. side of the ordinary territorial limits of the United States" might be