NO:PPLE V. DORN.
tively appears that it is libsolntelynecessary that it should have the power to bring this suit, in order to defend its rights, and protect its own interest, under the contracts made with it by the Brush Electric Company. Any other rule would, it seems to me, amount to a complete and absolute denial of justice, and no court would be justified, upon the facts in this case, in granting tbe motion. I think the opinion, from which I have read, is logical, sound, and just, and ought to prevail. Upon the authority of that case, and the authorities therein cited, which are the same as were cited to me on the oral argument, the motion will be denied,and it is so ordered.
NOPPLE fl. DORN.·
(Circuit Court, E. D. PennsJ/war.ia. December 20, 18llO.)
PATENTS POB INVENTIONS PATBNT. WHAT CONSTITUTBS INJ'BINGBMBNT CoNSTBUCTIOlf OJ'
The class of devices employing the same process for refining oil as the device " covered by complainant's letters patent "No. "411,646 was well known, and some of the prior devices of such class were substantially identical with complainant's device in result and moue of operation. The defendant's did not embrace all the specialdevices and combinations forming the elements of complainant's claims. Held that, on account of the state of the art, the pawnt must be construed st.rictly and specifically, and that the defendant's device did not
In Equity. Bill by Emil Nopple to enjoin Christian Dorn from infringing letters patent No. 411,646 for apparatus for refining oil. The answer set up non-infringement as sole defense. The first claim of defendant's patent was "an apparatus for refining oil and purifying oil consistinK of a tank, a receiving reservoir, in the upper part of snid tank, a horizontal plate said discharge pipe in 81tid plate, depending cylinders secured to said plate, forming chambers communiCating at alternaw ends, a heating pipe within said chambers, said parts Leing combined, substantially as de- . scribed." The elements in italics were containt'd in all complainant's device which was rnanufactul'ed und6l'letclaims but not in ters patent No. 427,421. Decree for respondent. CokisbuT]} ,k Shattuck, forcomplainsnt. Strawbridge,k Taylor, .for Iesponnent. BUTLER, District .Tudge. The plaintiff sues forinfringementof patfmt No. 411 ,646, covering "apparatus for refiningoil.". The answer denies infringement and this is the only question presented lind raised. A very few wQrds will explain all we need say respecting it. Apparatusfor and rt'!fining oil,and other liquids, by the.processemployed, are old. appears .from the history oftbe art as exhibited
Reported by Mark Wilks CoiIet, Esq., of the Philadelphia· bar.
by the record. Some of such apparatus is strikingly similar to the plain· tiff's; in mode of operation and effect it is substantially identical. The plaintiff,'sclaims must therefore be construed strictly, and thus confined to the specifk devices and combinations described. So construed does the defendant infringe them? It must not be overlooked that the defendant has a patent, also, and consequently is entitled to a presnmption that his patent is novel, and therefore does not infringe the plaintiff's. The office, with the plaintiff's claim before it, and fresh from their consideration. :w,ust be regarded as deciding thllt they did not cover the defendant's apparatus. This decision is necessarily involved in granting the later patent. To overcome the presumption arising from it, the proofs should show with reasonable clearness. that the decision is wrong. On the other hand, it seems in the light of the proofs to be right. The defendant's apparatus does not, we think, embrace the spQCial devices and combinations specified in the claims. Indeed it seems easier to distinguish the defendant's apparatus from the complainant's than to distinguish the latter from some of those that preceded it. The bill must then'fore be dismissed and a decree may be prepared accordingly.
THE INDIA AND OWNERS t1. DONALD et
(OfrcuU Court of .A1JpeaZs, Fifth Oirou't.
:'The term "weather working day," when used in a oharter-party, means a 'ofl\!,e,Wj.&e a working day, whilUthe weather will reasonably permit the oarrying qn of,the work contemplated. " ,
. ' """Three olear working day,'" notice, required by a charter-party to be given by . to, the shipper lay-days commence, does not begin to run until 'such notIce reaches the shipper. 8. 'SAME-ExOEPTION IN CHARTElt-PARTy-DitoUGHTCLAUSE. :,,4 of a vesllel at J;.imerick chartered to proceed to Ship island, there to lol'd with lumber, provided that the shipper should be allowed a certain number , of'days"to deliver the cargo,'" and that in the computation of lay-days "shall be excluded any time lost by of quarantine, drought, * · · or any extraordinary occurrence beyond the control of .shippers." The. custom of the was to collect aud prepare cargoes at Moss POInt, between WhICh place and ShIP island no drought can affect communlQat!ou; ·E.eZd, that the exception in 'oaseof drought did not apply to previous droughts in the streams down which the lumber is floated, making a scarcity in the market and preventing the securing of a cargo ,. as. re\l:lJirllq.. Paterson v. Da,Mn,31 Fed. l!,ep.682, distinguished..
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2.' SAMB:":':'COMPuTATION 011' LAy-DAYS·
4t.meal from the Distriyt Cqurt of the United States for tQe Southern
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Mississippi. '., . . " .· Bros. & ;Co.against the Norwegillnba.rklndi,a for <4tn:Hi,ge$ for failure of her master to give a. ,clear bill of lading., Judgment'1()r libelants, and dismissing cross-bill' for demurrage.. The owners appeal. Reversed.