CLEVELAND TARGET CO. II. UNITED STATES PIGEON CO.
CuvELAND TARGET Co.·tIC
(CtrcuU Court, N. D. Ohio, W. D. Kay tl, l8W.)
P.A.'fBJl'l'8 :JOB INvnTIONS-A:RTIOlP.A.TION-MOTtOlJ :JOB PlmLJ1O'NART IN.mwCTIOlJB'LTJ1IlG TARGETS.
Letters Jlatent No. 225,261, issued March 9, 1880, to Orator F. Woodward, are for a "new and useful improvement in compositions of matter for making molded articles of manufacture. " such as flowerpots. vases, cuspidores, etc. Flying target. or "birds." though not specified by the patentee; were made in large numbers under the patent. The composition consisted of gypsum androsin mixed under heat. Held, on motion for a preliminary injunction against one manufacturing targets from a liks compound, that the patent was not anticipated by certain previous compounds il'om which flying targets had never been made, and from whioh the pate.utee.s never oont,emplated that ttey would be made.
.. S.A.ME-l!dOTION FOR PRELIMINARY INJUNCTION-ESTOPPEL.
In a suit for infringement of a patent, it appeared that defendant was formerly in the employ of ccmplainant, and. while sustaining that relation, gave testimony as an expert in its behalf supporting the validity of the patent, and, by actual process of manufacture before the court, demonstrated the noyelty and utility of the invention. Held, on a motion for a preliminary injunction, that he was in no position to deny the vWidity of the patent.
In Equity. Bill by the Cleveland Target Company and Orator F. Woodward against the United States Pigeon Company and others for infringement of a patent. On motion for a preliminary injunction. Gr.lnted. E. A.Angell, for complainants. J·. B. Fay, for respondents. RIcxs, District Judge. The complainants file their bill in this case to secure an adjudication as to the validity of the patent No. 225,261, dated March 9, 1880, issued to Orator F. Woodward, of La Roy, N. Y., and now ask for a preliminary injunction against the defendant, restraining it from the manufacture of flying targets or "birds," wbich they claim to be an infringement of the patent set forth in the bill. The patent sued upon was before this court in the case of Peoria Target GJ. v. Oleveland Target GJ., and its scope and utility were fully commented upon in an opinion delivered on May 27, 1890, in that case. 47 Fed. Rep. 725. The complainimt in that case relied upon the validity of letters patent No. 334,782, granted to Fred. Kimble, January 26,1886, fora new and useful improvement in making targets. One of the defenses set up in that case was that the complainant's patent was not novel; that neither the proeess nor the article specified constituted a patentable invention; and that a process for making a similar compound had been described in a prior patent issued to Orator F. Woodward, in 1880. In the case referred to the court, in referring to the complainant's patent, said: "The Woodward patent of March 9, 1880, was intended to produce a composition of matter which could be molded into various articles of fine texture, glazed surface, very cheap and strong. The ingredients described were gypIUIll and rosin, mixed under heat. The right to use pitch as a substitute for V.52F. no.4-25
rosin was claimed in the patent. The specifications and claims set forth in xar,yprqdl,lpt D,0"t C911sid,ElraUQn ill, this TheTngrelflents are exactly the same, 'and the produCt' deseritlM' covers the target in this .·. Theonly effectel;! is that the produced under the KimbleI)lttent is"fragile, whilethe'm'olded pl'Odtictbf the Woodward patent is strong and substantial. change in the proportions of the ingredients produced the desired re'Sidt';": This was not a discovery, within of the patept laws. It was. not an invention. It was merely coiniilnfiig'matei'i'ttls'dellctibed' in 86\'erl\1' earlier conspicllou!lly intbe. was not any scientific basis.ol?an,rtixed proportioD,but of oil in pitCh,Dlight Diake, neceBlffiry.Thisrequires no scientific knowledge. It is ' . thecalling;,lt'I1d iuv()lves,on}y the of the.'oriUnary of reas,qnmg upon the supplled by wspecialkllowledge. and 'the facility or manipulatiOll,wbichresults from its hatlitual 1>l'ailtIce;' and"eomas wltliin'the'rule defined byMr. Justice MATTHEWS in v. MartU;tacturing 00;, 113 U. S. 59, 5 Sup.
Ct. <Bep. 71'7.1',."
of the validity ofthe Woodward patent. Jl.()wfiietheir bUI, and seek to maintain the validity ,<>f the defendof said patent,arld establish im in,fdJ.lgement on ants. The Woodward patent, while not claiming on its face to be an impljoverpep,t fqfatbemaldng or blackclaim it t9 '\)e .8. " new. and uSll,compgsiti()ns:9!,rnatt!;Jr mfl-king wolded articles of manufactu're," specifying flowerpots, vases, cuspidores, etc. ,as illustrating the characte!' of the articles to be made:,under the. process described in the patent. But it that the compound described in the Woodward patent was lwttiaUy used in ma1dng
..... se veral. t. h.,()B.San<1o.f su,C.h.,. ta.rg. et.s . were m de . . . . .... .. patEmt, and publicly used iJ?, of New York .d.efetldant that title is perfect, large ntlmbei;' of. patents, several a compollition ()\It o(which flying targets coulc1, be' all as Qut ofihe comp9uJ;ld described in the Woodwardpatep.t. to this tosay that none of the ill these. patents ever used for any purp08e., /rhe to be made: under these several in construction, form, and patents Rroportions .of i;naterialfrom ,the targets as tornake. it plain that those never contemplated. that theIr compounds be varied. Qf shQpld· .bEl varied,to mll,ke the peculiar structure reunder patent sued .on. in quired for. case. II?-faqt" ill the patents set forth in defendants" anand affidflvHs;' very :ppposite qualities to tl:lOse eSlilential to· successas pertainhlg to the arful ilying target,lil. weres13('forth in. ,tic1es patents. I do not think, within the meanlDg o('Ckntghv. Rdnu.(l¢tuttngCo., 106 U. S. 178, 1 sup.et. Rep. 198, that these Elv.at! complainants' device. ,The complainants' patent, ,thQu.ji;Q ,not dllscribing a compound expressly
r . i..
THE H. E. WILLARD;
intended for the construction o'f'flying targetS. did in fact contain ingtedients which, ''iYith a few.changes, have' made very snperiorflying targets, probablyas'succesSfnl 'and popular as any put upon the market. The compound described· in said patent has iufact- been so used in the manufacture of flying targets that now some 12,000',000 are made annually. 'fhis is the highest evidence of its usefulness! and -adaptation to this kind of manufacture. The public have accepted and used it as meeting a general want. I think, therefore, for the purposes of this motion, that we may accept the patent as embracing a novel and useful invention. I think the complainants' title to this patent is clearly established. But the defendant is in no position now to defend as to the question of validity. The defendant Damm, who is the promoter, principal officer, and active manager of the defendant corporatidn, was originally in the employ ofthe complainant. While sustaining such relations to it, he asserted the validity of the patent sued upon in this case, was an expert witness in this behalf, and demonstrated before this court, by actual process of manufacture, the utility of the invention, and in various ways so committed himself to the validity of this patent that I do not think he is in any position now to controvert it. There can be no question of the infringement. It is thoroughly established, and I think, under all the circumstances of the case, the complainants are entitled to a preliminary injunction, and a decree may be drawn accordingly.
(Circuit Court, D. Maine. October 8, 1892.)
MARITIMB LIENS-STATE STATUTBS.
The lien given by Acts Me. 18&9, c. 287, toa part owner of a vesllel for debts contracted and advances made for certain purposes, is not maritime in its nature, and is therefore not enforceable through the admiralty jUrilldiction of the federal courts.
ADMIRALTy-JURISDICTION OIl' FEDERAL COURTS-STATE STATUTES.
While the federal courts sitting in admiralty may enforce, according to their own rules of procedure, a right created by a. state statute, which right is maritime in its nature, no subject which is not of a maritime nature can be brought within their jurisdiction by state legislation. . Matters of account between part owners of a vessel belong to a court of eqUity, not to a court of admiralty. The Larch, 8 Ware, 28, 34. and The CharW8Bemje, I» Hughes, 859, disapproved.
SAME-ACCOUNTING BETWEEN PART OWNERS.
B&nj. Thompson, for libelants.
George E. Bird, for respondents. GRAY, Circuit Justice, and