bis former patent the complainant seems to recognize that this was only substituting one fasteniDg for another, for he says, "It is evident other fOrolS of clutches and fastenings may be made within wide scope, as I do not wish to confine myself to fastenings shown." ,This proposition is unquestionably true. Mere changes of form in the clutching mechanism which produce no new result would readily occur to the mechanic. The prior art is full Of similar forksjthey are even -shown as applied to opera glasses. Indeed, it would seem that the idea might have occurred to any: one who had seen an old fashioned clothespin. Tbefirst claim has an additional element-a tube or socket-but the defendants are not charged with infringing this claim. It follows that the complainant is entitled to the usual decree upon claims 4 and '] of the patent of 1882.
1. PATBN.rs FOR
S. D. NeW .York. August 25, 1892.)
, ,In a bill for infringement it is insufll.oient merely to allege that oomplainant became, the owner of the. patent on a certain. date, without alSo alleging flontinued owne,rship at the time of filing the bill.
E!lA:O"';:ALLBGATI.ON AS TO
A bill for infringement is demurrable when it merely states that the alleged invention had not been in pu1:)!io use or on sale, for more than two years prior to the applioation with the patentee's consent or allowanoe. . . . Letters patent No. 408,4HI, issued to William C. Kriok, are for an improvement in floral designs, whereby, instead of tying single flowers to a toothpick and stioking them into a floral pieoe, so as to form a letter or design, the letter or design is flrst out out of some stiff material, the flowers fastened to it, and when the form is oomplete it is fastened to the floral pieoe by toothpioks. Held, that a want of patentable novelty is not so manifest on the. face of .the patent as to render a bill for infringement demurrable.
USB AND SALB.
In Eq·uity. Suit by William C. Krick against Edward Jansen for infringement of a patent. On to the bill. First ground of demurrer sustained, and second gronnd overruled. I8aac S..,McGiehan, for complainant. Goe:pel' <rc Raege:ner, for defendant. TOWNSEND, Circuit Judge. This is a demurrer to a bill in equity for relief for infringement of letters patent No. 408,416 for an impro'rement in floral letters or designs. The first ground of demurrer assigned is "that it appeareth by the complainant's own showing by the said bill that he is not entitled to the relief prayed for." Under this demurrer, defEmdant claims that the bill is defective (1) because it states that the alleged invention had not been in public use or on sale for more than two years prior to the application of complainant with his consent or allowance.: (2) because complainant; while stating the date on which he
became the dwner ofthepatent, has 'failed to allege ownership at the date of filing/his bill. _Thecomplaint is·defective in both these particulars. Blessing.;,v.Tra.geser, 34 Fed..Rep, 753. The first ground of the demurrer:is sustained,with liberty to,the complainant to amend within 20 days without costs. . second ground ofdemul'rer assigned is want. of patentable novelty on .the face ·of the patent. The patent is foran.improvement in floral letters, or' ,designs, VIr hereby,. instead of tying. single flowers to a toothpickjitnd sticking them"when isotied, into a floral piece, so as to form a lettetordesign;thereon, tbeletterordesign is first cut'out.of some stiff ml'l.dJe:rial1 'and the flowers fastened to it. :When the form is complete, it is fas:tened:to the floraLpiecebytdothpioks. The question is whether this improvement involves invention. The patentee alleges that he is the first inventor and discoverer of this improvement. He claims that the questions of novelty and utility were heard and decided in his favor by the commissioner of patents, and that his invention has displaced all other methods of making floral designs. The question of patentable novelty is a question of fact(and, 'except ,iiI: a very clear case, it ought not to be decided until after an opportunity has been given to submit evidence there·ori: v. Trageser, Bwpra; Du:k'v; 'Supply Co., 25 Fed. Rep. And this question doubtful,ll.n extensive use by serVe to resolve the doubt in favor:9f the patentee. fl'opliff, 59 O. Gd257, 12 Sup. Qt. Rep. 825. lam not satisfied that the want of patentable novelty is,sopalpably,tp'anifest o,n the Jaooofthe:,patenMhat the bill of complaint should be dismissed on demurre'r.'" Thfhsecondgrotiii,d .overruled.·' ,
& Co., LImIted.
Court, W.. D. PennB1/wq:r!ti.a. September 17,1889.)
Letters patent No. 408,475, granted August 6, 18811., to Evan James. Francis and Charles Banfield, for "a bottom for heating furna.ces, formed of segregated masses, broken pieces, or fragments of noncombustible material having interstitial pas., sages, and presenting a broken or uneven surface, "disclose a patentable invention,
13AME-ANTICIPA1'ION. :. , ,
PATENTS FOR INVENTIONS-INVENTION-SHEET-'I1EATING FtmNACES.
The defense of anticipation examined, discussed, and overruled.
In Equity. Bill by Evan James Fl'ancis and Charles Banfield against Kirkpatrick & Co., Limited, for infringement of a patent. Decree .for complainants. . J. I. Kay, for complainants. D. F. Patterson, for defendants. Before ACHESON, Circuit Judge, and BUFFINGTON, District Judge.