WOVEN WIRE FENCE CO. ,. L.um.:
(OCrcuU' Oourt, E. D. Michigan. December 16, 189L)
... P4TBIml !'OR
In a'suit for infringement the introduction of the patent is prima.faou proof t.bat the patentee fa the original and first inventor, and the introduction of sub_ quent lettertl, under which the alleged infringing device ia made, does not ovel'cometh1ll presumption.
INVENTOR-PRBSUMPTIONS noM P.4TB1'l'1'.
.. B.urlD'-JOINT PATBNT.
" ,.'J;b.e issuaneeof a patent to two persons, as joint inventors, constitutes f)1'Im4 _ tbat the invention was joint. , ·The'mere faot that defendant has constructed or is constructing, in accordance with, a subsequent patent, machines whioh embody substantially the,&alIle devices ClOveted by complainant's patent, and whioh are claimed to bean infringl'lment, 111 auBlomnt to support the bfil When the answer admits that, if found successful, defendant intends to sell maohiJ)..es and territory.
'" &UB-ErrENT Oll CUlM -WIRB-FBNOB MACHINE.
DEIORIl'TION -olltB DEVIOB wrrtI SEPARATE :ll'mrOTIONS
M. Lamb 111 for &,n impro,.ed maohine for weaVing wire fences. The essential de. , vice ia a bollow needle, B.pproximately OYlin d.rioal in shape, open al.on g one side, .. and adapted to etraddlethe ':'R\rp-wiril and rotate, so as ,to wind about it the woof.
issued November l2, 1889, to John W. Page and Charles
Wire, with whioh it fa threaded, fornii!ig. a knot, at the same time having a llight longitudinal reciprocating motion, to give the knot an elongated forward tWist, whioll. as stated ia"the specifioations"fa desirable because of its extreme seourity." The inv,entors state that, owing to the oomplicated nature of the meohanism, they have deemed it desirable:tO give a detailed description, but that they do not With ,to limit-their .invention to the details of construction, and that the claims are intended to 'be construed as broadly as the state of the art will permit. Claim 19 oovers"a longitudinally-slotted needle, aaopted to hold the woof. wire,and sup-ported, to rotate in its be"rinjts, SUbstantially as and for the purpose set forth." Claim 14 is the same as claim 12, ,with the pddition that the needle is to "be reoiprcoated longitudinally, · for >the purpose set forth. Held, that claim Ii covers the neeille without·,the motion to give the knot the preferred "forward twistt " and is infrInged by a device construoted under let,. terti patent No: 435,042, alii!' 18sued August 26; 1890, and which 111 essentially the lame &8 the needle, thla reoiprocating feature. ,
A oonstruotion 'wh!.cb'wUl'l:bake two distinct claims of a patent Oover, not dUfel'ent tbings, but one and the lame thing, 1a.llobe avoided, it poseible;and, where a .device Jlerforms two operations, · claim may be. based. upon each witholl' 'covering the other. " ..' . ..' . .
In Equity. Suit by ,the Page Woven Wire-Fence Company against Abel Land for infringement: of a patent; Injunotion granted· . !'lJyrtmfrYrth et Dyrenjorth., for complainant. . . Grant FeUhw,;'8aUJOuryet O'Meaky, and M. Fe Chamblin, for defendant. JACKSON,CireuitJudge. The complainant corporation,or assignee .If the entire right, title, and interest in and to letters patent of the United States No. 414,844, granted November 12, 1889, to John W. Page and Charles M. Lamb, for a new and useful improvement in wirefence machines, brings this suit against the defendant, Abel Land, for infringement thereof. The bill, which was filed September 13, 1890, contains the averments and allegations usual in such cases, and need not be specially noticed. In his answer the defendant denies knowledge of complainant's title to said letters patent, but admits the issuance thereof at the date stated to said Page and Lamb. He denies that said pat-
PAGE WOVEN WIRE FENCE CO."'. LAND.
entees were the original, first, and joint inventors of the patented machine described in said letters, and states that said patentees"Surreptitiously and unjustly obtained said letters patent for that which was in fact invented by this defendant and his son. Stephen Land, and who were using reasonable diligence in adopting and perfecting the same, as was well known to said Page and Lamb when they applied for their letters patent." He a.dmits that he had made one or more machines in accordance with letters patent No. 435,042, granted to himself August 26, 1890, and that he intends to use them, and. others like them, for specified business purposes, if found suitable, but he denies that his machines infringe complainant's patent. The assignment of said letters patent to complainant is fully established, and its title thereto was not questioned at the!hearing. The defendant offered no proof in support of his denia'! that Page and Lamb were not the original, and joint inventors of the machines covered by and described in said letters patent No. 414,844, nor did he .make any attempt to establish the claim set up that he' audhis son were the real inventors thereof. These questions are therefore out of the case, under the well-settled rule that complainant's introduction in evidence of his patent in due form is sufficient to show that he IS the original and first inventor of his device or improvement; as the !Same may be construed and defined by the courts, unlesssufficient evidence to overcome that presnmption, and to establish the contrary allegation of the answer, is exhibited in the record. In other words, the burden of proof is on. the defendant to show that the patentee was not the original and first inventor. Ransom v. Mayor, etc., 1 Fish. Pat. Cas. 252; Green v. French, 21 O. G. 1351, 11 Fed. Rep. 591; Doubleday v. Beatty, 22 O. G. 859, 11 Fed. Rep. 729; Stone Co. v. Allen, 14 Fed. Rep.' 353; Agawam Co. v. Jordan, 7 Wall. 583; Seymour v. Osborne, 11 Wall. 538; and MitcheU v. Tilghman, 19 Wall. 390, 391\ The letters patentsubseq1,.1ently granted to the defendant do not overcome this prima facie presumption in favor of the prior patentee. Dental Vulcanite Co. v. Gardner,4 Fish. Pat. Cas. 224, and cases cited. It is also settled that said letters patent to Page and Lamb, as joint inventors, is prima. facie evidence that theiri,'ention therein described was joint. Hotchkiss v. Greenwood, 4 McLean; 456. Atthe hearing counsel for respondent contended that the proof failed to establish the fact that the defendant at the time the bill was filed had_ made or caused to be made, and had used for the manufacture of wire fence, one or more.machines .containing and embodying as a part thereof the inventions and improvements described and claimed in complainant's letters patent. Without reviewing the evidence, we think it is clearly shown by the testimony of the witnesses Harvey and Abbott that prior to the filing of the bill on Beptember 13, 1890, the defendant had constructed, and used the same in the making of wire fencing, one or more machines which it is claimed embodied complainant's invention. and which contained substantially the same devices described in letters patent No. 435,042, issued to him August 26, 1890. It admits of little or no question, under the proof, that prior to the grant of said letters
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patent No. 435,042' he was constructing machines in ,accordance therewith, which he admits in his answer ·he.intendsto employ in making enough fence to test, an:d, if found suitable for the. purpose; "to sell termachines· for'the manufact\1lte of wire fence;»', Under these bill Even If defendant had not prrbf thereto actually constructedmachmes for the manufacture of wire fence embodying the woof-winding mechanism coveradbycomplainant's,letters patent, his intention totrYJDtlchines em· bodying. said inventiorl, and, if found suitable for the' purpose, to sell the same for the manufacture of wire fence, would :besufficient to sustainithe,'bill. In such cases, courts Of equity recognize and enforce a and more remedial process than can be obtained in actions at law. Tbisis clearly statediDWoodworth v. Stone, 3 Story, 749, 750, where it is said: "The 'case is not that of 'an action at la", far the breach of a patent, to support ,which it is indispensable to establish a breach before the suit was bnmght., But In equity doctr.ine isotberwise. A bill will lie for an inth,e or. has upon wellof thellPRrebended intention of the defendant to follow [inA biH quia t£metls an ordinary rewedial process in eqult,... rests upoq the theory of actual prior infringeif that w88I;lotsustalnedthe court can, under the prayer for ment" geneml, ,relief, proceed ,.W ,protect the complainant's right from intended 'by its remedial process in the shape ohn injunction, ,if thl;l ,case. warrants such relief. TheJ.'emaining and real controverted question inthe case is whether the defendant, in roachinesconstructed or int\lnded to be made by him for themanufacture<?f wire fencing infringes the complainant's patent. or,e[J)bodiesany <?fthe devices. thereof coveJ.'edby its claims. A full and detailed description of the letters patent sued on is not deemed necessary to the correct determination of this question. The patent in its entiremeoban,ism and complicated, containing 8 sheets of drawings, }Vith 37 figures, 10 pages <?f specification and descriptions, and 21 different claims. As stated in' the specification, the invention, relates to Il, iW:achine for manufacturing wire fences, and its an entiretyoperation, .. Is in thenatlIreof a Welllyillgopqration. the wires referred to as constituting the horizontal fence-w,ires affording the warp in the weaVing. and those referred to as'the vertical or stay wires affording the woof. The warp-Wires are fed from spoollr in desired number and at iequired distances apart to the take-up weChanism. which receives the fi'nished article, and is actuated intermittingly'to take up lengths thereof. and,alternateswitb a woof-wire winding and .stringing device, which as soon as a finished length of fencing has been takenup· travel acrofls the warp-wires, stopal.'ound it a with which it is threaded." ping at each. 'fhis woof-wire 'Winding and stringing device or mechanisn and its operation is described at length and in great detail, and iUs stated that at the forward end thereof; thlera illl-
PAGE WOVEN WIRE FENCE CO. ".,LAND.
"Abollo", ,needle,S, (rig. 28,) of cyllnd,ricalshape, and open side, hliving formed or it nea.r its center a pinion, S', dlyided by a cir,clUmferential c.,ntralgroove, and so supported in ita bearings as to permit to it a rotary and also a slight longitudinal reciprocat-' tng motion, and the forward end of the needle is threaded with the woof-wire, just about long enough to reach across the warp-wires when wound around each, which we prefer to provide in tile form ofa coil, 85, (Fig. 29. l'! The operation of this needle when set in motion is first to fall upon or strac1dleand surround the first warp-wire at the right-hand side of the machine, and then to rotate about and reciprocate longitudinally along that wire, thereby winding around it the woof-wire, with which it is threaded, and forming a knot in the shape of an elongated forward twist, as represented in Fig. 3D, which form of. knot, as stated in the specification, "is desirable owing to its extreme security." The woof-winding device rises and shifts automatically from one warp-wire to another, and the threaded needle straddles and winds the woof-wire three times around each warp-wire throughout the series, when the device returns automatically to the place of beginning, to repeat the operation upon a new section of fence. The needle, S, at the forward end of the woof-wire,winding and stringing mechanism, performs two separate and distinct £onetiOllS or operations. By its rotary action it operates to wind the woofwire,with which it is threaded, around each warp-wire, so as to make the tie or knot required for the desired mesh of the fence, and by its slight lonl!;itudinal reciprocating motion it operates to make s11ch knot in the shape of an elongated twist; that form of knot being considered by the patentees most desi I'll ble for secnrity. After descriLing at great length the drawings and devices of their machine, the patentefls state that"The extremely complicated nature of the mechanism constituting our machines, all illustrated, and of the operatioDs of the various parts, has rendered necessarY,we think, or at least advisable, the foregoing detalled descl'iption. We wish, however, to have it clearly understood that we do not consider our invention to lie in mere d..talls 'Of the construction, many of which may b.., as we and others skilled in the art to Which our machine relates might readily suggest, altered and slmplilled. and some even entirely omitted. The appenthkl claillls are therl'fore Intended to be construed as broadly as the state of the art will permit for a machine involving generally any construction w'hich, when broadlyconsinerf'd, is analogous to ours for its purposes-First, With relation to the warp-Wires alone. and this whether or not the latter are coiled; sl:cond,with relation to the nWchanism which' will antomatically wind and string the woof-wire across the warp-wires; third. With rdation to the cooperation of the warp and woof wire weaving mechanisms." Then follow numerous claims relating to the different devices by which the warp-wires :are caused to progress intermittingly, by which the woot:.winding mechanism is carried across the'series of warp-wiTeS from one to the other, by which the woo/:'windingmechanislll, after havil)gcompletedthe 9peration, is returned to its starting point, by which the finishfld as'it is is,; uPQij tt)". reel. Tbesean.d several others, relating to other features of areuot involvtid in the present 'suit,. and need not be noticed,
-The twelfth1cla:im, of which alone infringement is asserted and relied upon at"tbehell.J!ing, relates to the needle device, by which, as the woofwire is carried to each warp-wire of the series in turn, it is wound around about each, ,warp-wire, thus forming the mesh of the fence. Said twelfth claim is.as follows: "In a device for use in the manufacture of wire fence, comprising wires crossing eacq and secured together where they cross, for winding and stringing a upon the warp-wires, a longitudinally-slotted needle, S, adaptedto hold the woof-wire. and supported, to rotate in its bearing, substantially as and for the purpose set forth."
It is said on ,behalf of. complainant that this device constitutes the fundamental principle of the patentee's machine, and is the nucleus about which all other mechanisms of the patent are formed, and which must. be found 'in all other machines constructing or manufacturing similar fence. to render their operation successful. There is no proof in theirecordshowing the state of the art on the subject of wire-fence manufacturing, machines when complainant's patent was ,g.ranted. It may therefore be assumed in its favor that said patent is of such a character as to entitle its claims to a broad and liberal construction. such as will sustain the patentee's.invention. .' The complainant's expert, William S.Bates, after stating that defendant's woof.winding mechanism was substantially the same as that described in the patent sued on,' proceeds to give his construction of said tJwelftn and a comparison thereof with the corresponding mechanism in defendant's machine, as follows: "The twelfth claim in terms refers to a device for winding and stringing woof-wire upon the warp-wires of a wire fence. The mechanism claimed in the claim is a 10hgitudinally-slotted needle, adapted to hold the woof.wire, and supported. to rotate in its bearings. as set forth in the specification and drawings of the patent. This needle is supported that it may be moved across the fence from side to side. It may be stopped opposite each warp-wire. and may there be moved towards the wire. 80 that the slotted needle straddles the Wire, (warp,) the wire into its axis. It is then revolved, and winds the woof-wire upon the warp-wire, and it is .then raised (automatically) off the warp-wire, and moved on to. the next one, where the same operation .takes place. The slot. in .the needle enables it to straddle the warp-wire aud relel¥le it again, so as to wind the woof-wire around it, and pass on to the next warpwire. The needle is supported in the bearing so that it can revolve on the arm, which is pivoted so as to <larry the needle towards and from the warpwire. This arm also travels a<lfOSS the fence to mOVIl the needle from one wire to another.. The needle is composed, essentially, of a pinion, by which it is revolved, a slot in the pinion to enable it to straddle the warpwHes,: and a bearing to support it. and the through which the woof-wire . iii threaded. sotbat it· is carried by the needle. Other parts of the devieR are immaterial to the subject of this claim. Turning now to defendant's mechanism, I find in itsn arm which travels across the.fence frOID to side, whic.h is to stop opposite eacb .warp-wire.. This ar.m is pivoted. it can l'pproach and recede from the warp-wire, and it has a pinion mounted in'.a bearing iolt, conesponding with the pinion cifthe complainant's patetlt.Tbis pinion in defendant's mechanism is slotted, to enable it to straddle thewarp-wit6S; it has a bearing to support it on the
a'i-tn, aild It bas a projection with' an eye in It, 'tbroughwhich the woof-wire Is 'threaded. The woof-wire is thus carried by the slotted pinion, and when the .pinion straddles the warp-wire, and it. is revolved, the woof-wire itJ twisted arou nd. the warp-wire. When the pi nion ves the warp- wire, and moves on to the next, it carries the coil of woof-wire with it, and twists it around the next warp-wire, and so on acrOSs the fence. This device in defendant's mechanism, therefore, has all the material elements of the complain:' ant's mechanism as defined in the twelfth claim of tIle patent. Botll mechanisms have what is called in the patent· a longitudinally-slotted needle;' that is, they.both have a Slotted pinion, mounted in a bearing so that it can revolve, and provided with a, projection and an eye in it, through which the woof-wire is threaded. The mode of operation is the same in both of them; that is, they straddle the warp-wire, bring the wire into the axis of the needle or pinion, by virtue of the slot in it, and thus revolve, carrying the coil of woof-wire around the warp-wire, thus tWisting it around the warp-wire, and thellby virtue.of the slotleave the warp-wIre, and pass on to the next one, and repeat the operation. The .function and mode of operation being the same, and the important partsof.construction being the same, I consider that tWQ.,4ievices are identical, notwithstanding some slight differences of form w.hichexIst.» . He then points out as· differences of form the fact that the projection which carries the needle in complainant's device is nearly cylindrical, or in the form of a 8lotted sleeve, while in the defendant's arrangement the useless portions of metal are cut away, leaving an arm which is nearly flat, projecting from the pinion; also, that the pinion in defendant's device is larger in proportion than in complainant's. Again, complain.ant's needle revolves always inthe same direction, while the defendant's revolves alternately in opposite directions, thus changing the direction of the wind of the woof-wire on the warp-wire. This, it is said, is a mere matter of choice, depending upon the gearing of the needle, and involving only mere matters of mechanical preference. Again, the needle in complainant's mechanism, as it rotates to wind the woof-wire upon the warp-wire. is also moved longitudinally to a slight extent, so :as to cross the coil or tie of the woof-wire, and thereby form the elongated twist-knot already mentioned. In the defendant's mechanism there is no.such longitudinal motion.. , Tpislast difference in the two devices is the relied upon. by defendant and his .expert to establish non-infringement. ThiEl slight longitudinal cating motion of the complainant's needle is not in terms J.:eierred to in ;said twelfth claim, and is clearly shown not to be l1ecessary in the manufacture of wire fences, but it is described in the speeification .sa desira'ble, for the reason that it operates to form an elongated twist-knot, which has greater security than thE! simple crossing of thewires. The positions taken on bellalf of defendant that said longitudinal recipro.cating motion of the needle in thewqoflwinding mechanism of the pat.ent, having been described as one of its functioDsor operations, should 'be taken'asan essential element of the device or combination covered by the twelfth'claim, and' which the court cannot· properly ·treat 'as.immaterial, under the 1"9le laid down in Water-Meter v. Detrper, 101U. S. ;332, and Gage v; Herring, 23 O. G. 2119, 107 U. S. 640, 2 Sup_ Ct.
tena! by:the,l1'I3¥neoo<l form ()f!hJ:s claim; second,.that the separateelemente ofwhiab the 'oombinatioR:'iscomposed a'l'enot included: in the LinrhJay, 31 O:'G.120, 113 U. :Rep. 507, 30 113 U.S,. §gP,r.Ct. !tep., 511; that the bemg for a defendant not 'Usingqne of them,
-viz., the lOllgiJtudinalrecipro<la\ing motion of the needle or pinion,there isne> infringement, upon tbewell-settled doctrine illustrated by the cases of Vance iV .aampbeU, 1 Blnck 1 427; Dunbar v· Myers, 11 O.(}. 85, 94 U.:S. 187, and other authorities. . ' ," the the ,case .accordingly turns upon the question whether claim 12 of the patent Js to be restricted by descriptive limitations; that ,is ,toaay, by reading into it, 8.8 a material element thereof, the slight longitudinal reciprocating motion of the needle, S, as'cQunsel for delEmdant conten:ds. . If tbe01o.im is th us restricted ·there is clearly no in fringe"If i't is :not construed to' ihclu(le' such longitudinal reciprocating motion of the needle, it is equally clear that there is infringement. As already stated, the claim, does ,not in terms mention this longitudinal motion o.ohe rotary actioq. The object and tpe two \Vera 4Sseptially rotary intended ,and operated to wind tl;1e around the warlr'""ire, form :l1Iesh of the fence. The longitudinal recipand to form a of such shape as the most, desirable for security. It wa'l entiai in itschl,lracter.:The mecqflniemas a device for the warp-wire. is in itself complete and crossing the operative lO,l1gitudinal motion of the needJe. That the entees did not intend to 'cover the .I.at\er feature and operation of the J,leedle bytbe itwelfth clailJ,l)s clearlysho:wn by thefourteenth claim, which distinctly lind ip:e:x:press laQg\lllgeinp!udes suph motions of the The IOQJ:teenth as " "In a device for'use In of wire fenee,compriRlng wires each other. llwlsecured to/Jet'ler where they cross, for winding WOQf:-\Vj,re, ,upon the warp-wires, a ',long lUtlinaily-slotted needle, adapted tohola (he woof-wire, Hnll, supporteu. to be rotatf'd un Its and be tn its bearing, suulltantially as tiM .fat-the'I'u rpose set fortl\!' ,. , ,
; . t'.
the patentees intended by the claim to cover" both and the .1olltP,tudinal reciproof S, apd t,nlj.i thetwelfthqluim was intended only.;the The which.<Ieqqntenq tf!El ;twelfth, app In, Tondettr Y" 28 }',eq.·, Jj6l, 1 saId J ,AqIllJ)SON thllta Qqnstruptjon,wbioh two claIms of a. the .tbing, wall a r6.llult ito be avoided, if'P0$ll;p)e. rX' substan,¥ally: tIle same ij!lestion,i.qvolve,d iIJ. W,.b.e:Q, a }!utented device
::) I. I :
! i ,:
pert'ort!is'itw6'dfsliiiet distinctpurpos6ll, lHHeason is a claim ibllsed thereontnay not be,made to covel" only one of such operations without including lheother. The twelfth; claim of the patent sued on relates to the slotted needle, S, not generally or broadly as described in the specification1 ,but only as it is adapted to hold the in its bearing, substantially as, and woof-wire, and supported, for the purpose (not purposes) set forth. The purpose of the rotary motion of the J;leed1l3, ,JlB"set fQrth, was <;lnly t9 ":ind the wQOf-wire around the warp-wire.'" That was its main and most important function. That feature the was intended to Jongitufiinal reciprocating motion of the needle effected by or through the circumferential groove, SS, and employed to forma knot of certain preferential shape, iscarefnlly odlitted fi-omthe ,cl8Jm. No good reason appears for readiJ',lg that pfthe needle's:Ii1ovement into the, claim. Thereis noth. ing in the specification which may be looked to, ,in, ascertaining, the true 8,cope qf warrant cQurt in so construing the twelfth claim 88 to makctitinclude by intendment or operation of law QIelQngitqdiilal'reciproCJl!.tingmQtion of thereby make Baidclaim identioal withtheiourteenth claimiof thepatenti nor is there ,the record as art which should lead the court to 80 restrict the claim·as to thereby protect the infringer, ;Who has eJDbodied,the -very' invention. The patent opinion to a more'liberal construction, such as was a.dopted:in LakeShm'e M. S. Ry. 00. v.National 00., 26 O. G. 915, 110 U.S.229-238, 4 Silp. Ct. Rep. 33. The claims of th.e patept sued: 011: (No., 40,\56, grantedtQ James October, 1863, for an \tete.as ,., . ' "(1) The shoe, A, and soie, both beina adapted to each other, substantially as described, so that the 801e can have a latetal rocking movement on the shoe, for the purposes l:lpecitled. ., . ..: II (2) The combination of shoe, A, sole, B, clevis, D, and bolt, G. the whole
bei,ng ooBa'tuetedand arrange«.fJubstantially
Only the seCond claim \Val!!' sued on. The' defenda.nt contended that the elemeht of the lateral'rocking motion or movement of the sole; B, read into the claim, as it was described as one of the features should of the sole iin tb,e specification. It was held both 'in the (4 Fed. Rep. 2t9) and in the supreme court that contention lSn' behalf of defendant could n'ot be sustainedi that the intent to covel" a broaderconstl'tlction was' fairly deducible from the speCification, and nothing appellrhlg to show that the patentee WRS not entitled to' the broader constructil;>n. That suit involved almost the direct point under consideration in the present case, and is conclusive against the restricted construction which it is placedtipon the twelfth claim· ·The c?pclusion:of the ,court: .that the illi.ght longitudinal' reci irig motion of the nee(Ue'" S, .· is not an element of' the. twelfth claIm, .by said claim is infringed '. by the' defend. and that the ant's machine, It folloWS that complainantis'entitled to the relief IOtightby' its bilt. 'ana that defendant should' be- enjOIned from: further
infringement, w:biah is aCQordingly so ordered and with of suit to be against the defendant. The usual reference WM1' be had, if desired, by complainant.
,,'J4EB,RIAlrI tt al.
: ", :; i
York. March 16, 1898.)
The',d,ate I,811!l'PQ, ,the titie-pa, a, re"p,rint of webster,,'S, Dictionary, edition of 1847,-the ,Ojlptright haviDll eltpll'll4.-indicatell the date it was printed, and is not a revres6nU,Uon' 'tll1at it is anew Ei41tion 'of that year, though the book does no\ 'tepreseDt itPlf·tp )be a mere reprlnt. " . Defendant advertised a reprint of 1847 edition of Webster'. Dictionary, tbe COPYllig,bt' pired,'as "lates,t ed,it,iO,n, 10,000 n,ew, word.. " etc., Old, price IS,i, and tbat ne,\" low price, of 'I was ppssibleb,1,tmprQvements ill maChinery, etc. bn application of owner of tbe copyright,of llubsectuenteditiolill, ttl,at def,em,4,1\11,tbe,' ,enjoiBe,d',agai, nst"ithe .fu,rtber ciro,Ulati"OU of suoh ,misleading, , advertiseJl1entl"an!l already extensive circulation, apfinted slip must'therelilier be til' etch book, stating it to be a reprint of the edi· tion of 1841; " ' :, ' ,
There is cllaracteristicof a traCie-mark in the words "Webster's I>lctiGn"ry , 'orin the torm of that workasulfually printed by G. & C. Merriam., Buoh ... to prevent Ql!e ,by others in "publillbing old e!litioDB on whioh copyright 1lu. expired. Merriam v. Slwe 00., .7 hQ.,Rep. 411, ,
In Equity. ,am bl Siftings PUbJi,sqilig COmpanr Charles N.,Judicm, forplamtIffs. . Pierce &:Pi8her, for defendant.
and others Granted. ' "
the Texa.t .
SHIPMAN, Distnot JUdge,' This is .. bill in equity, brought by" the plaintiffs, Wh9, and are owners, of the copyrights in ,various editiona and publishers thereof, to restrain of Webster's 1Jnapridged fo,r sale" or selling a c4eap reprint of the edithe, tionof 184:7 import that it is a copy ofthe edition Qf one of its successors, upon whjch editions the plaintiffs have a large amol,lnt of money, and which have had a Tpe bill is not\>ased upon any supposed trade-mark high Dictionary." It has no, substantial foun. rights in imitation, or simulation of the external appeardation upqn any ance of the edition of 1864. Its proper foundation is upon the alleged atte;mptB of the defendaJ;lt to wss off upon the public a reproductiQp ofan.infe.ril;>r edition which hJld long since gone out of the market as the superior and widely known edition which and int9 published by the plaintiffs or their predecessors had been at great expense. The bill alleges, in substance, as follows: That the edition of1864:, whi,ch was p,ublished originally by the firm of G. & C.