to the:-circumstances oLMr. Sori:Bner's case,but, assuming that t:heydo, it was not necesssry to Rver in the bill that such certificates had been filed. An omission' to file a ·Certificate would have no effect upon the title of property which' he had bought in the name of the firm. If he were the ,sole member,he became possessed of the title to the (:Opyright. Cases.cited in 1 LindLPartn. 8l1p'1'a. It ,will be observed that the act of April 29, 1833, whidhwas designed to prevent: the use ·of tious pal'tnemhip names, was . repealed in' chapter 593 of the Session LaWtl ofl88&. ,The second gronnd af which is stated.in the brief is that .the bill simply alleges that Mr. Scribner deposited within 10 days sfteD publication, in the librarian's offioe'at Washington, two eopies of the book, whereas it should also have alleged that the book was published within a reasonable time after the deposit of the COPY' of the title. Theaverment,s in the bill state.acomplianoe with the statutGry provisions, and. follow the lanK\lagtl of the statute, and are more full than those in precedents which have received the sanction of high authority. Curt. Eq. Prea.'38. The demurrers are overruled, with costs, and leave to answer outhe.next succeeding
GoULD et· at
(OIrcuU court, S. D. New P"'or7c.
When th,.QOQ.l't is satisfied that defenqouts intend tQmanufacture an,} sen an Inarticle, a injunction W;ill issue, :it. is immaterial whether they have 8J..ready made actull.l sale&, or bav.e. oDly given out samples of·thegooda whioh they oft¥to,selL", ,:,
.oil ImmoN8-IN1'RIlI'GB:MEl'lT-PEBLmnUllT INI11lIlOTIOlf.
The defenses of prior publio use, and th_t the patentee appropriated the ideas and modeia of tbe real Inventor, and falsel5'! averred tbemto be his own, should not be disposed of on parte aftIdavits under a motion. f,,, a preliminary lnjunotion, butslioUld be reserved for 1inall1ear1ng.
Although the. patent sued upon Is evidently a narrow one, and there appears a possibilit1 that on final hearing it may be foilnd to' be without patentable Invention, yet the 'presumption created by-the when reinforced by long publio , acquiescence, is sumcient to warrant a preliminary injunction.
, In Equity" Suit by John H. Sessions against William B. Gould and others for infringement of·letters patent No. 203,860, issued May.21, 1878, to Charles A. Taylor,for an "improvement in trunk fixtures." alld assigned to complainant June 1, 1878;. and letters patent No. 255,122, issued March 21, 1882, to John H. Sessions, Jr., "for trunk fAAteners," and assigned.tothe complainant July. 1, 1888. Heard on motionJor a p1eliminary injunotion. . Granted. OhaB. K'Mitchell, for complainant. BrieBen Knauth, for defendants.
LAOOKBE,.cuouit Judge. Except for the fact that in the exhibit marked;;"Defendants' Catch A" the pin on the upper catch-plate is not with the plate, and in the exhibit" Defendants' CatchB" there is no pin at aU, thesecatohes are manifestly counter-parts of complainant's goods,and infringements of the patents sued upon..A. careful examination: oHhe affidavits .ahd circulars leaves little doubt in my mind that, unles8orestrained:hy injunction, the defendants intend to manufacture and .SEl1l euehgooda. Whether they have already mad,e actual sales, or have ;oo1y given out samples of goods whic,ll they .offer to sell, is immaterial, where there is reasonable ground to apprehend that they are about,tO'selUhe infringing artiCles. White v. 10 Fed. Rep. 291. H in fMt they- have. no such intention, a preliminary injunction will do them,. no harm ,and they cannot complain if by making and parting with Exhibits A,and,B, (and they do not' deny that they did so,) and by issuing circulars to the trade, they have inducedahelief that such their Thetestioo<my as.to·the acquiescence of the public for. many years in the validity of the patents sued. upon .is convinoing,and sufficiently fortifies the presumption arising from the patents themselves to warrant the granting of a preliminary injunction. The contention that, in view of the prior state of the art, they do not disclose any patentable invention, is not sufficiently clear and convincing to overthow the case made out by the patents themselves and the public acquiescence in their validity. The defenses of prior public use, and (as to the Sessions, 1882, patent) that the patentee appropriated the ideas and model of the real inventor, and should not be. dispoBed of on ex parte falsely averredJl;lem to be his affidavits, but reserved for final hearing. The goods, (Exhibits A and B) embody the improvement of of covering the clutching device ofa loop, prpjectipg from.the upper catch, thereby securengaging ing a wider and stronger bearing than did the do,,-elengaging with a as a:rranged in,hia patent of 1872. hole in the tang of the The absence of· the cast pin of the upper catch, whose sole function is to assist in fastening the upper catch tot)le valence. is iIi my opinion immaterial, because the second claim of the i878 patent does not include the pin, butonly the fastenit'lg devices, il'respectiveof the method of applying thero t9 the trunk itself. It is for "a trunk catch or faStening, consisting of the plate,O, having thereon the lug or shoulder, L, the plate, G, and the snap-loop, J, substantipl1:; dS and for the purposes specified.", The plate, G, as shown in the specification, is arranged so as to be affixed to the trunk,and has on it "a box or recess, H, for containing the spring,.:!, and through which box or recess passes the cross-bar -<jf the loop, J,having thereon a cam or eccentric, K, resting on the spring,!." Thatin the complainant's patent the recess and plate are goods the same separate oastings,riveted together, while in the box-bearing plate is produced in a single casting, is immaterial. The same result is accomplished, and in the same way. 'No doubt the patent sued on is a narrow one, and on final hearing. it may appear that
M4.CK V. LEVY.
there was not sufficient patentable invention in substituting the snapwith a shoulder for the dowel engaging with a hole in a loop tang to warrant the granting ora patent; but on the case made here, of such long-continued public acquiescence, it is to be assumed that it was a meritorious imprOVElfilent, which defendants should not be nllowed to infringe, although they may, by substituting one casting for two, have themselves made an improvement in the method of producing the completed plate. Infringement of the Sessions patent is too plain for discussion, if that patent is valid, and, for the reasons above indicated, it must be assumed to be so at this stage of the case. Complainant may take injnn'Ction under claim 2 of the Taylor patent of 1878, and Sessions patent of 1882, with a clause reserving right to sell any and all goods made by complainant himself.
(C'iretdtCouTt, S. D. New York. March 21, 1892.)
PA'l'JIlNTS POR lNvBNTIONS-lNlIBINGEMlliNT-OPEBA.-GLASS HOLDEBS.
It is doubtful whether letters patent No. 268,112. issued November 28,1889, tor an improved opera-glass b,older, consisting of a detacbable handle, provided. with. a fastening device consisting of a piston hook and notcb on the end, bronghttogetber by a spring operated by longitudinal action, are infringed by a fastening device consisting of two jaws, one pronged or bifurcated, andtbe other with a uniform surface made to hold tbe bar of the opera.glass, SUbstantially by lateral pressure, by means of a piston screw.
In Equity. Under a bill filed by William Mack, an injunction was granted May 20, 1890, restraining Levy, Dreyfus & Co. from infringing a patent by making several fOrIDS of opera-glass holders denominated " A," etc., but excepting" C," in which the hook and notch of the patent do not exist, but consist of a detachable screw loop, the open ends of which were screwed together, (see 43 Fed. Rep. 69.) Motion to attach them for contempt in manufacturing a holder consisting .of two jaws, etc. Denied. H. A. West, for plaintiff· . James A. Hudson, for defendants. SHIPMAN, District Judge. This is a motion for attachment fur contempt by reason of the alleged violation of the injunction order of this court against the infringement ofletters patent No. 268,112, dated November 28, 1882, to William Mack, for an opera-glass holder. The opinion of the court in the original case gives a description of the inventionand the construction oithe patent. 43 Fed. Rep. 69. The invention of the plaintilfis popnlarwiththe public, if the number of imitations is a fair criterion of its success. The defendants' opera-glass holder, at the sale of which the present motion is directed, consists of a detachable handle, made in telescopic sections, the end section being provided with