eh3ngerhl\S produced a new and useful result, was clearly one of the, objects Jaws." " ThisiMguage is perti,nent to the claim, which the ante ,infringe. The usual decree will be entered in favor of complainant.
N. D.New l.""ork. June29,1892.)
Claim lef'letters patlent:No. 258,156, IssUEldMay 16, 1882, to Cleon Tondeur for an furnaces, COVel'S: "The ooinbinllotion of the bars, cl, a:, SIde by side, and alternately between each other, the set, d..supporting the sheets of glass, while the bars, a:, are pushed towards the leer or flattening wheel, lind the set, d, the sheets of glass. Bnd moving them onward and through the tunnel, substantIally as set forth." The drawings show the bars raised some distance'from the floor arid the specificBtions state that a space of about one toot is desirable beneath the bars; also that in transferring the glass one Set of. bars is raise4; aud the other lowered, about one inch. The evidence showed th1l.t there were great advantages in holding the glass some distance above the floor and CliIrrylng it in a horizontal:plane. Held that, in view of the prior patents to Bievez, Bouvy, and others, the patent could only be sustained as describing meohanism for carrying the plate in' a practically horizontal plane, above the floor. andthllt the statem:ents in the specUications were sufficiently definite to be read into the claim, ,so as to give it this construction. Tondeur v. Stewart, 28 Fed. Rep. 5111, and Same v. Chamber8, 87 Fed. Rep. 888, followed. As the speci:\lGations tl0int out ,that the bars are to be located at some distance above the floor, alid so arranged as to carry the glass on prllctically the same horizontal plane 'While advancinglt through the leer, it is immaterial that the inventor did not more preciselypoi;nt out the advantages which would' inure from this arran'gement, or that he himself was not aware thereof when obtaining the patent.
FOB iNVI!lNTIONS-ExTENT OF CLUM-GLAss-ANNEALING FURNACES.
In Equity.:Bill by the Dixon-Woods Company against Pfeifer for infringement of letters patent No. 258,156, issued MaY' 16, 1882, to Cleon.Tondeur, for an improvement in glass-annealing furnaces. Decree for complainant. . W.· Bakewell &- Sons, for plaintiff. HeJ/J &- Wilkinson, for defendant.
WALLACE,. Circuit Judge. The patflnt in suit (granted May 16, 1882, to Clean Tondeur, for glass-annealing furnace) has been twice adjudicated 1:>Y Judge ACHll:SON at final hearing in fully contested cases in the circuit court for the western district of Pennsylvania, and sustained as to all the claims of which infringament wa!,!alleged. The combinations which employed in the furnaces are the subjects of the several Qrleers of the defendant, who isa contractor and builder of leers., Evhas been intr.oduced for the defendant in the present case respecting the prio!;' state QI,the art, and the utility of the patented invention, which was not introduced in the former cases. ,Unless, in view of this new evidence, there should seem to be reason for disagreeing with the conclusious' reached by Judge ACHESON, the rule of comity
:PQ:ON-WOODS CO." PFEIFER.
should prevail, and his conclusions should not be disturbed on any questions concerning which there is fair room for a differf!IlCe of opinion. The principal contest is upon the first claim, and it is not contended for the defendant that he can succeed unless the validity of this claim is successfully inweached. The invention set forth in the patent is defined by Judge ACHESON in Tonduer v. Ohambers, 37 Fed. Rep. 333, as follows:
"The patent discloses a device for transporting the sheets of glass from the flattening wheel to the discharge end of the annealing chamber, tunnel, or leer, consisting of two sets of parallel bars (designated d and d / ) extending lengthwise through the leer, and elevated above the bottom thereof. the bars of the resper,tive sets being arranged side by side, and alternately between each other, one set reciprocating longitudinally and conveying the glass. and the other set supporting the glass at certain times. whereby the sheets of glass are supported in and carried through the leer in substantially the same horizontal plane."
The claim reads as follows:
"(1) The combination of the bars, d, d ' , arranged side by side, and alternately between each otber, the set, d. supporting the sheets of glass, while the bars, d ' , are pushed towards the leer or l1attening wheel. a. and the set, d', supporting the sheets of glass, and moving them onward and through the tunnel, SUbstantially as set forth."
According to the views of Judge ACHESON, as expressed in the case referred to, and in the earlier case of Tondeur v. Stewart, 28 Fed. Rep. 561, the first claim of the patent is to be read broadly for two sets of bars arranged alternately side by side some distance above the floor of the leer. so that the sheets of glass are supported by one set and moved onward by the other through the tunnel in practically the same horizontal plane when coacting mechanism is applied. According to the COUlplainant's expert. the claim is infringed. by any leer which employs two sets of bars arranged alternately side by side some distance above the floor of the leer and lj-ny mechanism coacting with said bars whereby they will perform the assigned function of supporting the sheets of glass and moving them onward through the leer in practically the same horizontal plane. A brief description of two types of leers will suffice to exhibit the prior state of the art. These are shown in the patents to Bievez and to Bouvy. The Bievez le!.'r is of the usual, rectangular fornl. with the usual tile or stone floor. The floor is divided longitudinally by a series of channels. Located i.n these channelil, and connected together so as collectively to form a frame, are a series of iron bars, resting on a series of grooved wheels. The wheelH are supported by axles located in transverse channels beneath the floor. Coacting mechanism is employed for actuating the frame whereby the series of iron bars are raised, advanced, lowered, and pushed backward. In operation, a plate of glass from the flattening oven is placed upon the floor of the leer, and the mElchanisUl is actuated to elevate the frame and lift the glass fr?m the floor, carry the glass forward, and deposit it upon the floor. Tne frame is then lowered, pushed back to its original position,
'and tbe :repeated, Ubtll. tlie' glass is through the leer;1lhe :Bou,,"y leer,: ilt general oonstructitlD,:: that of Bievez, but differs in the devices for transporting the glass through 'Tbeft'ame which is SupplH1ed in'the ldngitudinal chilnnelsconsists of two serlijs:ofiron-shelves,whirih reciprocate each betweenthbother, each havinga-verticaland 10ngittidi'Ral Iildtion,'wltich is coincidetltan<lequal,and also eontinuous. Mechanism is' employed which actuates one series of the shelves downward and forward, and the other at the same -time upward and Jjackwatd. ,In operatiotl* the glass isplaced'upon one of the'lleilies ofshelv6s,'ihemechanistD-is actuated; and, as the two series the serieareOloves the glass froIll the descendinJ.· s¢pes, forward _ it is in, like "manner removed l)y' tl16 alld thus throllgh the leer. To summarize: In the .Bievez patent! _ ,the, frame has a fr;ee, vertical, and longittidhlill movement. Its function: is to lift a sheet of glass by its vertical movement from the floor of the leer, and by its longitudiilal movement carry it to an advanced position on the floor. In the Bievez patent, one8erie8 of shelv,esmove$·,v.ertically and longitudinally, while the other set is moving vertically alid longitudinally in an opposite direction.'The fUllctionperformed)bttbe shelves is to transfer a sheet of glass ·from one setto the other, antbld'vance. it through the leer. In the Bievez leer the sheet of glass rests upon the bottom of the leer throughout its passage exceptwhile being'advanced at each elevation of the frame. In the Bouvy leei' the glass does not restatanytiPle ioits passage through the leer upon the floor, but it :is not advanced in the same horizontal plane','and in its movement describes a circle which varies the longitudinal plane inches. ' " : Besides the patents introducediri the former litigation to show the prior state 'of'tbe art, the defendant has introduced others in the present case, of which those relied on it!. argument at the bar are the French patent to Leverne of1868, and the Belgian patent to Bouillet, of 1878. The Belgian piltentto Gugnoh, set up in the answer, cannot 'be considered, because it was notintrbduced in evidence. Neither of these new patents are of any value asirilpeaching the novelty of the claim as it has been construed. Each of them belongs to the Bie\1ez type, but in Bouillet's two sets of parallel bani co-operate to lift the glass from the floor, and advance it along the leer instead of the single set of Bievez.. It is plain that· the novelty of the first claim of Toridel1r's patent resides in the substitution of hIs supporting bars for the floor or floor ribs of the -leer shown in all the earlier ones of the Bievez type, and in so arranging bis two sets of bars that when in operation at all times while the glass is moving through the leer it is carried forward on the same horizontal plane, instead of on thevaryiilg plane of Bouvy. The two pronounced advantages of Tondeur's according to the proofs, arise from the arrangemeritof the bars at some distance above the floor of the leer, and in such relatioli 00 each other-th'at they retain at aU times while advanCing the glass practically in the Same horizontal plane; and unless the claimclm be limited to such combination it is very doubt-
,CO; .11. li'FEIFER.
ful whether it has any patentable noYelty. If Tondeur had stated in his specificationsubl'\tantially th8(t pe,had discovered that by maintaining the glass constantlyatthesame distance above the floor of the leer throughout its 'passage, 'and by advanCing it through the leer in practically the same horizontal plaQe, an improvement in the art of anneal.. ingwould be effected, would be no difficulty in first claim the broadc.oristruCtion which has been placed' upon it bythe.expert forcofi1plainant, and in the previous adjudications. That an improvement i a llffected by sl.lch tre.atment cannot well be gainllai<Iupon the In order to obtain the besl results, both in,obviating breakage»;:' the proces$ and in improving the 'quality of the glass, the cooling process should be such that. the. glass may be homogepe,olls and the tension of unif6,fp1;;' 'Currents of cold air occur at the· floor of the leer. The heat is unequally distributed throughout the glass during the time it is restingu,'pon the floor. The temperature is more uniform at some distance' above. the floor, .and along, the. sarve horizoptal ,plane.. Unless. tMglass is, tained at substantially the same .horizontal plane it is"subjected, .to the variation of temperature which exists between the upper and lowerportions ot the leer. It is advantageous to so support the glass in the leer that the heat may be freely radiated from both surfaces, and atan equal rate. The proofs show quite persuasively that the leers constructed conformably to Tondeur's patent, with the limitations mentioned, have supersedp,d all the leers in this country in U$e. It is to beobservl:J.d that there is no. evidenqe that leers of the Bom>:)" or BouilIet type have been used or constructed. If the specification which is addressed to those skilled in the art instructs them that the bars are to be located at some distance above the floor of the leer, and are to be so arranged that when the operating mechanism is applied to them they will maintain the glass onprl:1-ctically the same horizontal plane while advancing it through the leer, it is. immaterial that Tondeur did not more out the advantages which would inure from such an arprecisely rangement, or whether he himself was aware. of these advantages ,at the time of o1;Jtaining his patent. The specification states that I< a space about a foot deep is desirable beneath the bars." The drawings show the bars raised some diRtance above the floor. The epecification also statee that the reciprocating bars are lowered and the supporting bars are raised in the operation of transferring the glass I<to the extent of about one inch." In view of these statements in the specification, and what is shown in the drawings, it cannot be affirmed that theconclttsions reached by Judge ACIIESON are unwarranted, although, as an miginal proposition, I should doubt whether the necessary limitations are sufficiently implied from the specification to be read into the claim. Certainly the case is not one in which I should bejustified in refusing to follow his decision. A decree ,is ordered for the complainant.'
PE,;DERAL BEPORrEB, vol. 51.
.OALn1'ORNIA FIG SYRUP CO.
IMPROVED FIG SYRUP
(Ctrcu1.t Court, N. D. California. May 23, 1899.)
Complainant, "Californl. Syrup Co" "manufaotured a syrup from figs, and put it up in p,aokages, havin, as a device thereon a fig, tree, with leaves and fruit, and the w,ord,s' syru,p of Figs,' , as a trade-mark. Respondent, "Improved Fig Syrup Co.," made and put up the same article In a package with the same device and the words" Improved Syrup of Figs " as a trade-mark. Respondent, on remonstrance, chanl(ed'its device to the figure of a woman holding up a fig, with the words "Fig alta trjl,de-mark, aU of which occupied the same place an.d space on the package as oomplainant's device, and was, besides, animitation of complainant's newspaPer advertising device. Held, that complainant was entitled to an injunction.
The fact that plllointift"s trade-mark, "Syrup of being merely dt>scriptive, was deceptive, 88 a designation of ·the compound, dId not affect plaintiff's right to an injl,ln<;tioJ;1; the matter ill controversy belUg, not the right to the exclusive use of the words\ but respondent'llsimulation of complainant's devices and packages with a view to aeceive customers·. An objeotion to the bill on the ground that It was uncertain whether was made of 'the use of the words "Fig Syrup" or "Syrup of Figs" by themselves orin combination with othel' words, devices, eto., could not be: sl,lst!lined j it being enough, for the purposes of a demurrer, that complainant was entitled to relief in respeot of the combined use, which was olearly set forth in the bill. Tlle bill alleged that respondents B. and others were using respondent corporation as a means of infringement, they being themselves substantililly the corporation. HeM, that theM was no misjoinder in making them parties defendant.
In Equity. Suit by the California Fig Syrup Company against the Improved Fig Syrup Company. On demurrer to the bill. Overruled. Olnf!!J, Chickering & ThQmas and Paul Bahwell, for complainant· . John L. Boone, for respondent.
McKENNA, Circuit Judge, (orally.) Thib is a case of infringement of a trade-mark. There is a demurrer to the complaint, and a motion for an injunction. The granting Of the latter is dependent upon the action of the court on the former. The basis of the suit is the effort of the respondentto imitate the trade-mark o(the complainant, and to thereby represent to the public that its goods are those of complainant. If the bill shows this, the complainantis entitled to relief. In McLean v. Fleming, 96 U. S. 245, the court say:
"It is not necessary, in order to give the right to an injunction, that the specific trade-mark should be infringed, but it is sufficient if the court should be satisfied that there was intent on the part of the respondent to palm off his goods as t.he goods of complainant, ,and that he persi:lts, after being reqnested to desist."
Citing Woollam v. Ratcliff, 1 Hem. & M. 259. To the same effect is Pierce v. GuiUnrd, 68 Gal. 68" 8 Pac. Rep. 645. The bill alleges a high reputation of complainant's compound, acquired by its virtues and by extensive and expensive advertising, and also describes complainant's trade-mark, the form and size of the bottle, and package used by it, and illustrates them by exhibits. It also describes the imitations of respondent, and illustrates them by exhibits. The