STARLING". WEIR PLOW CO.
"Whenever any person ships, transports; or rellloves any spirituous or fermented liquors or wines, under any other tban the proper name or brand known to the trade as designating the kind and quality of the contents olthe or packages containing the same, or causes such act to be done, he shall fijr/eit said liquors or wines, and casks or paokages, and,besubjeot to pay, a ane of five bundred dollars." That the relator did ship, transport, and remove a package of spirituous liquor, to-wit, gin, under a name or brand" other than the proper natlieol' brand known to the trade as designating the kind and quality of" ,the Contents of the package, is conceded. He insists that he should bediscliarged, because, as he contends, this provision of statute is an at;. tempt to legislate for the protection of trade-marks,and, as such, beyond 'the constitutional power of congress, citing 'the Trade-Mark Oases; lOOU.S. :82. I am unable to assent to this proposition. There is nothingii:i'the section which restricts its 'operation as counsel for the ra;. lator suggests, or indicates that it was passed for any putpose other than to provide facilities for the enforcement of the internal revenue laws. The 'trade may be able to recognize the kind and quality of spirituous liquors by some II proper name or brand," and that name or brand still be no 'Itrade-mark," in the sense in which the word was used in the statute which was criticised by the supreme court in the case cited. The sectiori seems to be well adapted to facilitate the administration of the internal revenue system. As a part of that system, it was within the power of congress to enact it,anll it should not be held unconstitutional because, in some cases, the "name or brand," which must be placed upon the cask orfpackage in orderto'truthfully describe the contents, happens tobeu/tl$de-J;na,rk, which might thus illcidentally be protected. State v. Bridge 00., 18 How. 421.
STARLING tI. WEIR
Co. et al. 1
(Oircuit Oourt, N. D. lZHnois, S. D. August 20, 1891.)
PATENTS, FOB !NVENTIONS-PATENTAlULITy-NOVELTY-SULXY
PLows. The ftr8t Claim of letters patent No. 154,298, issued August 18, 1874, to WUliam Starling, for an improvement in sulky plows, consisting of the combination of a crank-bar with the plow-beain, lever. and axle, so that the horse!! are made to raise the plow out of the gro,und, is void for want of novelty.
A deci!!ion that a patent which has three claims covering ditrerent features of the device is not void for want of novelty does not render the que!!tion of noveltl. res adjuctWata, when a single one of the claims is attacked in a !!ub!!equent SUIt for want of novelty, and proof is introduced in such subsequent suit that was not otrered in the former suit.
In Equity.' Bill by William Starling against the Weir Plow Company and W:illiam Weir to restrain an alleged infringement of a patent.
lly Louis BoiBot, Jr., Esq., of the Chicago bar.
FEDERAL' REPORTER ,vol.
",W;J H:yWdlIt for <Jom'plainaftt. l
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with infringement of patent No. 154,293, granted>Augnst!18d.874,t6 plainant, for ,plows," and prayin,gan injunc·tion and accounting. .·The plow, deSQl;1bed in the sPecifications and drawiogs of this pawnt a sulky pIa\,\" wit.h an arched axle, or an axle "bent downward towl1ordseach end; the .spindle f9f the wheel. being a horizontal projection frorn the portion so bent downward. Pivoted, upon the vertical part of the axl4:l' just above the from which the r.i/l;ht-hand,wheel spindle projects, is what. the patentee,ealls which,;extends backward iand transvef!lely aoroM,oearly from hub to hub, and is also pivoted to the lower end, of the <vertical partoi' the axle, near t;Qe spindle of the left-hand wheel;. and the plow-beam is attached to part of near the middle ofthe bar, by a jointeQ. coupling, so that the plow-beam can rock upon its at.tachment to th,e Arank-bar, and the forward end of the beam be raised and lowered byrockiQg this crank-bar·. ' A lever rigidly connected with this crank, or bailexteuds upward to tl)e driver's seat, so that by the movement of this lever by the driver the crank-bar may be rocked and the plow raised or There are other features of the plow,not now in Qontrovel;sy, whiohitis not necessary, for the purposes of this case, to describe. Infringementis charged only as to ;the first claim, ",hich!is: "(I) The crank·bar, K, combined,:\irUhthe plow-beam, N, lever, L, and axle, A, as and fOl" the purpose set forth, so that the horses are, made to raise the plow out of the ground."
The defenses relied upon are: (1) That the patent is void for want or novelty; (2) that defendants do not infringe. The material question in the, case, ,in my judgment, is as to the patentable novelty of the device, in 'the light of the state of the art as disclosed in the proof. This patent was before the United States circuit court for the district of Minnesota in Starling v. St. Pam Plow- Works, 29 Fed. Rep. 790, and 32 Fed. Rep. 290, and there sustained. That case was a suit at law brought by complainant, as owner Of this patent, upon . or license given by him to the St. Paul Plow-Works, by which the licensee was permitted to manufaoture and sell plows made under this patent, within certain territory, for a royalty of $2.50 per plow. :A,ffR.r the defendant in that case had made and sold or 40 plows underthe license, notice,\\,as given to the patentee that the plows were unsatisfactory; that many 'ofthem had }jean returned as unserviceable; and that the licensee renounced the license, and would thereafter manufact.of its. own design. After, this ,notice an41'equnciation of the license t the licensee made about 1,300 plows after what it called its own design, on which it refused to pay the royalty called for by the license, whereupon the patentee: brought suit to recover his royalty or license fee,
claiming that the plow designedandplade by the licensee after the .renunciationof. the license theJeatures covered by the patent. The question, properly in illS:1Je tilat case was whether the plows made by the defendant; Ion .which:.it: refqsed .to PaY rOf;alty, embodied the features. of them, covered by theclaimspf the patent. J'he court held. propel'-ly; as I think,thatas defendant had,by its answer in the case, denied the novelty ofthe device covered by the 'patent, and plaintiff had not replied an estoppel under the proof p.pon the question of novelty was admissible; and, this ruling, proof of the issueo! several.priO,t patents was heard and considered. The has three claiIns,coveringdifferent features of thedevicej and it is obv.ious. that, iithe plows made by the defendant in the Minnesota case cOntained featurell:covered.by any of, thenitIwas liable license fee. ,:Thiscase differs, then,. frQm the Minneso1;a.case, in two sential,particulijrs: JilirlJt, only one.cl.ahn is in controversy here, whQle:patent was in therj;lj;alld, 8econd,defendantshave pfpr<>of,whichwas not introduced-in that case; ap,d, I think it but right to say,that I think case was properlYidecided upon the issues and proofs court. The which prevails Minnesota. case is invoked here und.er aru.le of between federal courts of CO-Drqinate when II question which has been decided in one is raised linother, upon substantially the facts·. If the facts in the later case ,essentially differ. from those of the adjudged case, then thergle of c9mity,has no. applica.tion, or its appliration is ·litnited. While, therefore, this. court· woul4 be very glad to consider the question of novel ty l;LS·res a,dj.udicaf,a, and. follow the Minne8.Otacase, it is plain that, as the proofs in differ from the proofs in that case,we must examine. the question of here upon the proof now .presented, instead of 1l6sting upon the Idonot deem it necessary tOfl.nalyze all the prior patents which have been putin:pl'Qof in this It. is enough, I think, to .say thatit clearly.appears from the proof that crank or arched aJ+les are old in the art, and that crank-bars, bails; 01' yokes,-,for the same. thing is known by theSe differlllntnames in the art,..,-as a means of raising or lowering the plow.beam, were well known in.the art prior to the plaintiff's patent. A patent to William Mason, of Jfl.nuary, 1869, fOr an "improvement in gang plows," shows .an arched axle wUha frame to which the pl0"\Vbeams were attached, and a crank-bar so arranged in connection with the frame that when the crank-bar WI;LS rocked bYm-eans of a lever ut the driver's seaUhe plow-beams werl'lrai.sedor lowered. It is true this Mason patent shows. two crank.bars,--io()ne under the rear and the other und",r the forward endofthe frame to which the plow-beams were attached,"':both. of which crank-bars by the lever; but the principle with an ,arched axle and.lever llS a means for raising or :lowering the plow-beam is, I think,. clearly developed in this patent. In the Worrell &. Rynearson. patent of .March, 1871, a plow is. shown with a bent or arched axl,e,.and underneath the axle are pivoted two bars projecting to the rear of the axle, where their rear end
FJl:DERA1. . REl'OltTER
isconilected bY,a cross or transversirbar to which the plow-beam is attaohed; or, as the specification says, llthis transverse or cross 'bar may be made a of the rearward projecting arms." . One of these arms, so pivoted to the axle, also extends forward oftheule,and forms a lever, by !DE!S:nsofw.hich the crarik-bar may be rocked and the plowthe location of the lever, rockbeams raised or lowered'; the ing the lever with hiS fclot instead of his hand, as in the complainant's patent. It is obvious, I think, that by merely bending this arm of the Worrell & Rynearson orank-bar, which extends horizontally forward of t.he axle, upward,BO that the driver could operate it with his hand, it 'Would be, in function and mode of operation, the crank·bar and lever oftl1e complainant's patent, and thus to bend the lever of the crank-bar upward,to,the driver'ss¥t, or where it can be reached and operated by the' driver's hand, instead Of his foot. is a mere mechanical change, which 'would not involve invention. The Owens patents of February, 1872,"and N()vembet,1872, also show a crank-bar orybke, as it is called in patents, to which 'the plow-beam is attached or hung, which yoke,,!hen tilted or rocked by means of a lever extending up to the driver's seat, raises or lowers the plow-beams. We have in these four patents, asft seems to me, a complete anticipation orthe complainant's crank-bar, and in an those patentathe crank-bar co.;operated with· the arched or bent axle, and a lever which rocked the crank-bar, to raise and lowel"the plow-beam'.!, thus containing all the elements of the first claim of complainant's patent,combined, operating, and producing the same 'result produced by the complainant's combination. It is truetbat in several of these oldal patents the is incumbered with other auxiliary devices; but, for the office performed by the crank-bar in complainant's patent, they' are essentially the· same as complainant's. crank:' bar. It is true that complainant states in his specificiations, and assumes to cover by his first claim,.the feature that by the operation of his crankbar and lever the forward end of the plow-beam is first raised, so that the plowisr\inout of the ground by the forward movement of the team. It. is apparent to anyone at all familiar with the operation of plowing that it depellds solely upon the location of the attachment of the beam to the crank which 1 determines whether the forward end of the plow-beam Will rise first when the crank is rocked 80 as to lift the beam, and it does not seem to me a patentable device to so locate the point of attachment of tliebeam to the crank-bar as to secure this result. It is also noticeable that Mr. Starling nowhere in his specifications or description of his device gives any instruction as to location of the attaohment of the beam to the crank which will secure the lifting of the forward end of the beam first. Undoubtedly any mechanic who wished to so construct bis plow as that the crank, when rocked in the right direction, would lift; the forward end of the beam first, would simply attach the beam to the crank forward of the center of gravity of the plow when funning in the ground; 'ih other words, so locate it that the plow, when working, would offer Illore resistance behind than forward of the point of attachment.
FOOS MANUF'G CO. t7. SPRINGFIELD ENGINE " THRESHER
The proof in the case also shows several patents on plows prior to the Starling patent where the plows were organized so as to raise the forward end of the plow-beam first, among which are the Baker patent of December, 1860; the Frasier patent of April, 1861 j the Sattley patent of February, 1864; the Davenport patent of February, 1864; and the Davenport patent of February, 1866. So that the advantage of first raising the point of the plow, instead of the heel, in order that the forward movement of the team would aid in running the plow out of the ground, was well known in thf:l art ,long before the complainant's patent. And although the lifting devices of these old patents may not have been the same as used by complainant, the forward end of the beam was lifted, and the advantages of doing 80 well understood, before this patentee adopted his method; and it certidnly did not require inventive genius to apply to any plow, at the date of complainant's patent, the idea of lifting the forward end of the plow-beam first in order to secure the aid of the team in running the plow out of the ground, and in any of these old bail plows that end could be secured by locating the bail forward of the center of resistance. For these reasons, I conclude that the first claim of the complainant's patent is void for want of novelty. Bill dismissed for want of equity.
t7. SPRINGFIELD ENGINE
(C1n'cuit Court of Appeals, B13:th Circuit.. Ootober 6,189L)
"Letters patent No. 359,588, issued Maroh 15, 1887, to James F. Winchell, for a crushing and grinding mill, consisting of the "combination with a main, shaft and grinders and a moving conveyor of a plurality of intergeared crushers, mounted to crush the material for the conveyor, and having protuberances which extend approximately in line with each other, one of said crushers being geared with the main-shaft," being a combination of old elements, are void for want of invention, in view of the prior state of the art, as shown by tbe Roberts mill, which the patentee had seen, and by the Baldwin patent. (No. 1,199,) of June 26, 1889, the Beal & Hale patent, (No. 4,895,) of December 17, 1846, the Newlous patent, (No. 8,425,) of October 14, 1851, the Nichols patent, (No. 9,330,) of October 12,1852, the Wilson pat. ent, (No. 12,977,) of May 29,1855, the Vascomb &; Guirand patent, (No. 20,810,) of May 10, 1888, the Hope patent, (No. 22,807,) of February, 1859, and the McCulla patent, (No. 29, 612,) of August 14,1860.
PATBNTS FOR INVENTIONS-INVENTION-PRIOR ART-CRUSHING-MILLS.
Even if oonsidered Valid, the patent must be limited to the particular structure de. scribed, and is not infringed by a mill in which the projections on the crushers are not in line with each other, and the crue,hers, instead of being geared to the main shaft, are geared to a counter-shaft, which derives its motion from the main shaft by means of a belt. 44 Fed. Rep. 595. affirmed.
Appeal from the Circuit Court of the United States for the Western Division of the Southern District of Ohio. Suit by the Foos Manufacturing Company against the Springfield Engine & Thresher Company for infringement of a patent. Judgment dismissing the bill. Affirmed. v,49F.no.8-41