business homeil,' and to "Chil)ese resjqiQg:inChina, or some. other foreigncountry,and /l.bQutto come for .the first; into the United· travel or.bp.ainc&s, or take \lp ,thei,!( .' " , . " r., The claim that a Chinese merchant, long domiciled in, the United to,r&.@Wr the same. after a temporary absence, should be reqlljred to prodllce <;crtificate ofth& Chinese go.vernment, concerning.factso£;whichsuch government in the. nature of things, be expected tQ havellOY ,knowledge, ·iIl fitly characterized by the ohief j usticelJ,8 f'upreasp,nable anq. Itbsurd," .The in LauQw Dew g()verns this case. The. decision of the district court, though ,givepon a :ground in which we do not concur, is corrwli, Jl.nd must beaffirJ.Ued; Itnd itjs'so Q:\'dered.
it: Qn,thl:irl ra-
OF CITY OF: BALTIMORE. April 27, 1899.)
LPA'l'EN1'\; :POx 'i:NVENTIONS:"'UNCERTAIN'l'i' 'oW CLAIM-,WATER' HBA.TB1t POR FlaB GINES. , .
9. Snrn-'Co1.t8INATION. Construing the tank as part of the heating apparatus, the claim cannot be said to ,only, an of parts, since is a joint andoo.:6peratlnR' aC,taon between the heater and the boller, and the action of each influences the action of the otber. '
Llltters No. 81,1811, 8, J868, to William ,A. Brickill, cover a heater oonnected Witli"tbe boirer of a steam fire' engine' by two detachable pipes, one carrying the cold water to the beatet: andtbe other returning it, heated, to the boiler, thus "maintai,ning.a free. ciroulation ,between.the boiler and beater," and'keeping the wate.r in 'tbe' boiler always hot, so as to expedite tbe generation of ,stea,m on a 1i,re calL Pipes oontrolled by 0Ocksconnecttbe heater with a water lIoJ;lq the engine is away is estaplished and main·taliiedbetween the heater altd the tank, "tl1e obJect being to preserve the coil or heater." The claim is "comoina1-ion"witha steam fire engine, ofa heating Sl,l;bl:!tantially a,s described, for the purposes fully setforth., .. Heta.'tbat it sufficiently appears that the tank is e. rart of the heater, 'and not .a of the oolllpination, andibe patent lSnot void on ita face for'un·.. -J '.
Law:, by William' and others against the mayor and city council"of Baltimore for damages for infringement of letters pat_ent No. 81,132,)ssued tQ plaintift' AtJ,gust 8, 1868, fOr an improvement in'.'feed-watel:' fOl:: ,Heard on" demurrer to the declaration. " The descr;ibe, substantially, a water heater connected with the boiler of a steam fire engine by two detachable pipes, one car.rying·the aJ;lcUhe other retutningit heated to the boHer; thqs "maintnJ.ni,Jjlg afree circulation betweentbe boiler and heater," nnd keepiqg 'Y!1ter in the ,boiler always hot'so as to, expedite the afire call. ',Pipes co,ntrolled .by.cocks conthe engine is8iway, the
ETC., OF CfiY OF BALTIMORE.
<rir<m1atjpnjs established and maintained between the heater and the tank, being to preserve the coil or heater." Raphael J.MIJ8e8, Jr., Arthur Stewart, and A. Trippe, for plaintiffs. Albert H. Walker alid Albert Ritchie, Corp. Counsel, for dE;lfendant.
; , ' .
MORRIS, District Judge. The ground of demurrer urged at the hearing is that the plaintiffs' patent is void on its face, because it does not point out and distinctly claim the part, or combination which the patentee claims as his invention or discovery; and it is also urged that the patent is void because it appears upon its face to be for an unpatentable aggregation of a steam fire engine and a heating apparatus. The claim of the patent is expressed in the following words: "Having thils describeu my invention, what I claim 8snew, and desire to secure by letters patent, is the combination with a steam fire engine of a heating apparatus constructed substantially as described, for the purposes fully set forth." The specifications describe the water heater, and the means by which it is to be connected with the boiler of the steam fire engine, so as to establish and maintain a circulation ()f water between the heater and the boiler while the engine is in the engine house. In describing the construction of the heater, mention is made of an attachment to it called which comes into use when the fire engine is detached, a "water and which then .preserves the heater from the danger of burning 'Out. lt is urged that, if the claim be construed to include the water tank as one olthe elements of the combination, then the claim is not for a patentable combination, bilt for a mere aggregation of devices, because the water tank does not come into use until the boiler is taken away, and there is therefore never any joint action between the boiler and the tank. It is further contended that, if the claim be read as if the tank had been disclaimed as an element, still it is argued that there is no com bined co-operating action resulting from the attachment of the heater to the boiler, and that the boiler is simply the inert receptacle of the hot water circulating through it, the heater being the only thing which acts at all. This line of argument, it appears to me, leaves out of consideration the beneficial result which is the object of the combination, and seeks to put a much too restricted and artificial construction upon patentable combinations. The object sought to be aceomplished. is to keep the water in the boiler constantly hot, without keeping up all the time a fire under the boiler, awaiting the time when the fire engine might be needed. so that steam can then be quickly raised. This can be accomplisht'd only by' combining with and attaching to the boiler some heating device in such manner that the water will circulate between them. As stated byMr. Justice CURTIS in ForbUBh v. Oook, 2 Fish. Pat. Cas. 668: .. It is not necessary that the'sf'veral elementary parts of the combination should ·l\cl flirnultaneously. If those eleillentary parts are so arranged as to produce some one practical reslIlt, which result, when attained, is the produrt of the simultaneous or successive action of all the viewed a8 one entire whole, a valid claim fO,rtllUS combining those elemen-
FEDERAL REPOR'l'ER i
tary parts mat'be made. Nor' is it requisite to include in the claim tor a combination. as ,thereof. aU the parts of the machine which are necessary to its action, save ,as they may be understood as entering into the mode of combining and arranging the elements of the combination." MclCessDn v. Carnrick. 19 Blatchf. 158, 9 Fed. Rep. 44; Smith v. Fay, 6 Fish. Pat. Cas.
It is not a tenable proposition to say that the boiler is a mere inert receptacle, iucapable of any joint action. The object to be attained is to lmable the boiler to furnish steam as quickly as possible when the demand for it comes. The combined action of the heater and the boiler accomplishes this result, although by successive steps, The water cirthe connecting pipes between the boiler and the heater, culates nnd one could not act without the other to accomplish the result proposed, although the final result is attained after the boiler is detached from the heater. I take it, therefore, that there can be no more objection to a claim for a com bination of the heater and the boiler than there woUld i>e to a combination of an erigine and a condenser, or of a boiler and a water feeder of any sort; and that it is quite clear that, if the claim or the specification distinctly disclaimed the water tank as an element, combination would not be on its ifwe open to any objection as an paten1tble aggregation. Theiohly question,then, is whether the claim is uncertain as to the elements of the combination. In his specifications the patentee states that heis"Well:l\ware that the form of theht'ater nsed, as well as of supplying water after the engine has been detached therefrom, may be varied without changing ,Lhe pature of my inventiolJ. which. as already set forth,consists ill con,nectiIlg,to or combining with a steam fire enginea heating apparatus, so that water to nearly the boiling point may be supplied to the boiler of thl' engine. that the steam may be more rapidly generated, and consequently 1. do not wis'l\to be understood as intending to claim any peCUliar arrangement of heating apparatus herein shown." . Reading the claim in connection with this explicit statement in the specifications, I can perceive no upcertainty in the claim. It expresses to my mind that there are but two elements in the combination,one a steam fire engine and the other a }leating, apparatus, constructed substantially as described. what scope is to be given to the words "constructedsuhstantiallY,as described" .cannot intelligently or rightfully be decided upon ademurrer in advance. of testimony as to the infringement·. To do so would be to necessarily disregard the rule that, where a claiPlis open to two constructions, the o,n,e .will be, adopteq. whichwill preserve to the patentee his, actual invention. There is no Inoia in this case as to the .actual extent of tbe claim thlll}. there' is 'in every case in which it may be necessary to consider, the state of the at the date of the application, in order to define the limits and Eicopeof invention described in the patent. demurreris overruled. I
BrickilZ v. Cltll oj Hartford, 49 Fed. Rep. 372.'
on "ubstantialll "
G WHITE CO.
G. G. WHITE CO.
(Circuit Cowrt, D. Massachusetts. April 27, 1892.)
Plaintiff and his predecessors have long used upon their whiskey barrels a trademark consisting of a picture of a chicken cock standing upright, within a circle surrounded by the ,words, "Old Bourbon Whiskey, Bourbon Co., Ky.," and below the picture the words, "From J. A. Miller, Paris." For over 30 years this brand hall been known to the trade as "Miller's Chicken Cock Whiskey" or "Chicken Cock Whiskey." Defendants, doing business in Boston, adopted a like picture. inclnding the circle; their brand being called "Miller's Game Cock Rye." On the label, in smaller type, are the words: "The King of all Whiskies. John Miller & Co., Sole Proprietors, Boston, Mass," Held an infringement; and it is immaterial that defendants use the device both upon barrels and bottles, while plaintiff has heretofore used it'only on barrels, and that defendants' whiskey is a "blended"whiekey, having but one stamp, while plaintiff's is a "straight" whiskey, having two stamps.
.A preliminary injunction the use of a trade-mark will be granted when from the affidavits the court IS satisfied of the infringement, nnless there are spe·cial circulllstances which take the case ont 01 the general rule.
In Equity. Bill by the G. G. White Company against John Miller al. for infringement of trade-mark. On motion for a preliminary injunction. Granted. Avery &; Hobbs, for complainant. Russell &; Putnam, for defendants. COLT, Circuit Judge. This is a motion for a preliminary injunction. As early as 1856, James A. Miller, of Paris, Bourbon county, Ky., who was then engaged in the business of manufacturing and selling 'whiskey, designed and adopted a certain trade-mark, which is the subject-matter of the present suit. The complainant, through mesne conveyances from Miller, became and is now the exclusive owner of said mark. The trademark consists of the representation or picture of a chicken cock standing upright within a circle surrounded by the words, "Old Bourbon Whiskey, Bourbon Co., Ky.," and within these encircling words, and below the representation or pictare, are the words, "From J. A. Miller, Paris." This whiskey, for more than 30 years, has always been known in the trade as "Miller's Chicken Cock Whiskey" or "Chicken Cock Whiskey," and it has been noted for its grade and uniform excel· lence; and this mark has been stamped upon every barrel or package of whiskey made or sold by Miller or his succeBsor in the business. The defendants are the firm of John Miller & Co., doing business as wholesale liquor dealers in the city of Boston. About the year 1887 the de-· confendants adopted a brand or trade-mark for their whiskey sists ·of a cock standing upright, inclosed in a circle, and which ;is· called "Miller's Game Cock Bourbon" or" Miller's Game Cock Rye." There is also printed on the label in smaller type, and underneath the picture, the words, "The Kilig of All Whiskies. J olm Miller & Co. ,Sole Propri.etors, Boston, Mass." In 1885 the defendants adopted a label for their -whiskey which varied in some particulars with the form·above described.