HERTER BRos. Ootober 18, 189L)
(CirC'u(t Court, S. D. New York.
At La",. Application to review a decision of the board of general appraiSel'S as to the classification of certain marble blocks. W.Wickham Smith. for importers. 'James T. Van Rensselaer. for the United States.
LACOMBE. Circuit Judge. In disposing of this case there Is very little to 84;1d to the suggestions and construction of the statute which appear in the ot JUdge COXE in,the case of Baumgarten v. Magone. 50 Fed. Rep. 69. which of cOUfSe is the law of this court until reversed. if it ever shonldJ:tie. by the court of appeals. These articles are manifestly small blocks of marble, and I cannot find in the testimony sufficient to warrant a conclusion that the general trade and commerce of this country has given a special trade meaning to the words "marble in blocks" other and different trom itll meaning in the speech of everyday life. It may be that it has. but there is not enougb in this testimony to show that fact. For that reason. I shall reverse th,edecision of the appraisers, and direct the, assessment OJ: 'duti upon thelia articles as marble in blocks, at 65 per cent.
BOSTON & A. R. Co. et ale
lCircuft Court, D. Ma8sachusetts. April 8, 1892.)
Olle who:is in faot the original and first inventor of aU 'the things oovered by the several olaims of his patent Uj.ay, without filing the disclaimer required by Rev. St.. U. B. § 4922, mairitaill a suit for infringement of such claims as are valid, notwith· standing that the things covered by the other claims were in public use fo.. more than 1iwo,yellol"s prior to his application.
In Equity. Suit by Baxter D.Whitney against the Boston & Albany R/lilroad Company et ale for infringement of a patent. Decree for injunction. c D. Hall Rice, for complainant. Parkinson'&; ,Parkinson, for defendants. NELSON, Distric,t Judge. Defendants' motion to withhold a decree in favor of the plaintiff until the plaintiff shall have disclaimed the 1st, 4th, 5th, 6th, and 7th claims of his patent is denied, upon the ground that, assuming, as the defendants contend, that the evil;lence in the case proves that said claims cover what had been in public use and on sale for more than two years prior to the plaintiff's application for his patent, yet, since it appears that the plaintiff was the original and first inventor of the parts of his invention secured by said claims, be is therefore not required by Rev. St. § 4922, in order to entitle himself to a decree for an
DICKERSON 11. MATHESON.
infringement of the second and third claims of his patent, to make disclaimer of the other claims. Manufacturing Co. v. Sprague, 123 U. S. 249, 8 Sup. Ct. Rep. 122; Telaphcme Co. v. Spencer, 8 Fed. Rep. 512; Walk. Pat. § 197. The plaintiff, having waived his to an account, is entitled to a decree for an injunction against the infringement of the second and third claims ofthe patent, with costs, and it is so ordered.
DICKERSON '11. MATHESON
(Circuit Court, B. D. New York. April 18, 1899.)
SALE-PATlINTED ARTICLE-NoTICE OF RESTRICTION-TRADB CUSTOMS.
A f1.ri:n in Germany having the right; under European and American patents, to sella patented coloring matter in Europe and the United States, was in the habit of selling with restrictions against exportation to the United States. A Londov. firm, which knew, in a general way, of this restriction, sent an order to the London agents of the German firm for a quantity of the goods" strong for export." Held, that it could not be presumed that these words conveyed nptice of an intention to export to the United States, in the absence of proof that such was their trade meaning in London. .
PRINCIPAL AND AGENT-NOTICE TO AGENT.
On receiving notice of tbe arrival of the goods in London, the purchasers made out a check for the price, and gave it to tbeir clerk, who, in the usual coUrse of business, exchanged it for the invoice sent by a messenger of the seller's London .!$ent.This invoice contained a notice of tbe prohibition against exporting to the united States, but the attention of the firm was not called thereto until a day or two later. Held, that notice to the clerk was notice to the firm, and, having BOo cepted the goods with notice, the firm was bound by tbe restriction. The owner of patents granted in Europe and the United States, who sells the patented article in Europe with a prohibition against importation into the United States, may treat as an infringer one Who sells that article in this country. Dicit,. erson v. Matheson, 47 Fed. Rep. 319, affirmed. .
PATENTS FOR INVENTIONS-SALE WITH RESTRICTIONS-INFRINGEMENT.
The parties to a cause stipulated that, in order to save the delay and expense of a commission to England, the cause shOUld be tried as if certain evidence therein set out had been given. Afterwards, however, it became necessary to send a commission, and certain testimony was taken thereunder, but nothing was done to have the stipulation expunged. HeW, that, even if the commission was inconsistent with the stipulation, the stipulated evidence would not be disregarded on the motion of one party first made at the final hearing without notice to his adversary. I. FOIlEIGN LAws-How PROVED. Foreign laws must be proved as facts in the courts of this country, and mere citations to English statutes and authorities cannot be accepted as showing the English law. '
PRAOTICE-STIPULATED EVIDENCE-SUBSEQUENT TESTIMONY.
In Equity. Suit by Edward N. Dickerson against William J. MatheBon and James N. Steele for infringement of a patent. Decree for complainant. Statement by CoXE, District Judge: On the 3d of November, 1885, Carl Duisberg, a German, obtajned United States letters patent No. 329,632 for an in co.loring matter, known as "Benzo-Purpurine." On the 21st of December, 1885, Duisberg assigned the patent to the Bayer Company, of Ger-