a.ntl:feedmgscrew;n' Suc1J.pipe .clltter$werp. well 'knowilbefore A that, ft tworoill place of the &ntlfrlctlOJ:). and other cutter was held in a frame in the stock, instead, of a pivoted arm, against WmcQ.rPJ,escrew worked, February 20, 1866" to William S.. Howa.rth; a.nd ano,ther, for one like, this, except armwas.'acutting knife, :was granted to Theodore S. FQsWi'Ida.ted May 28, 1867, 65,066; another, for .except Was in the jaw, and angular, to cut and rollers were in a frame in the stock which' thf3screw :l,V0rked, was granted August ,6, 1867, to and numberel1 ,67,530. Thus rotary cutte:n:Jwere wellkno.'ffliI!lilubstitutes for knifeclltters ; and every element the combiof this cl;tim been patented, in the same .V1ace, for the RWPQBe, as in tb,ispatent. The merely sllbstituted the rotary cutter for the cutting edge of the pivoted al'Ill of Foster, or (letty, and, .the place of the latter for the angular cutter with the rollers, which did not vary the operation of either, nor the result of all. Whether a rotary cutter' would be better than a knife cutter would be a qp.efltip;n .of ju9grp.ent, . and any good workman could change one for the other. Such substitution would not seem to amount to a patentable invention.Olothing Co. 'Y. Glover, 141 U. S. 560, 12 Sup. v. Hard,145 U.S. 241, 12 Sup. ,Ok:Bepd),9. The tool of:the plaintiffs'patent would probably have infringed' Foster's or (Jetty's patent. .The'8.Wlwer does not set forth that this invention was patented to Foster' of Getty, or any' bl1.t only tl,iatit was fully described and publicly made known in several patents, and among them those of Foster and Getty; ttnd their names and the dates 'were, stated. The statutory defense required to be set forth is that the' invention had the ,name a:p.d d:;tte.': 1t might be described and publicly made known by a'patent, ,and not be patented; and this part of the ans",er does not· appeal' to set out sufficiently this .defense. the ,were in evidence without objection,' and no motion h;l,1ill>een Dlcadeto They are in the case, to be considered. All that is required to be given by the statute to· make them a.dmMsible is stated in the answer, except their effect in patenting right to object,to consideration of them according to their legal' e:ttect seems to be well waived. ,Let a decree dismissing the bill be entered.
FEATHERSTONE v. ORMONDE CYCLE CO. et a1. (Circuit Court, B,: D. New York. November 16, 1692.)
1. PA'mNTS ]'OR, INVENTIo1illll""VALIDITY. ,
,,' " . .' ,,
: Reissued patent No. granted lh,rch 24. 1891. to John B.Uuillop. for wlleel tires for cycles, is valid. Featherstone v. Cycle Co., 53 Fed. Rep. 113, r " ! l o w e d . ' :', . ; ", A person wh.o ·is .mployed as managllrofa partnership, and who in that eapac!ty sells which infringe. a is guilty of infringement,
2. SAME-INFRINGEMENT'JiYAN EMPLOYE.
.,and may be enjoined, but he win not, be . appear that he had in the sale. tp
If it fails to
£lAME-FoREIGN PATENT-LICENSE-IMPORTATION AND BALE.
An inventor obtained a patent on cycle tires in Great Britain. snd subsequently in the United States, and then assigned to complainants the Ameri· can patent. The owner of the British patent licensed defendants to apply the tires to a bicycle in Great Britain. This bicycle was then imported into the "C'nited States, and sold by defendants. HBld, that defendants were guilty of infringement.
In Equity. Bill by Alfred Featherstone against the Ormonde Cycle Company, George S. McDonald, and E. J. Willis, for infringement of a patent. Decree fox: complainant. DunCan & I-age, for, cOmplainant. I-otter & I-otter, for defendants.
The defenses are invalidity of patent and noninfringement. The question of validity has already been decided in favor of the patent in Featherstone v. Cycle Co., 53 Fed. Rep. 113. Under the defense of noninfringement the defendants claim first, that. the Ormonde Cycle Company is a, partnership, and nota corporation. There is nothing in the proofs to support the allegation of the cOmplaint that the defendant the Ormon.de Cycle Company is a corporation, and the allegation is dellied by the answer. It. is further claimed that the defendant McDonald is only the employe of said partnership. The evidence shows that McDonald sold' a., bicycle, fitted with the alleged infringing tires, as man· agerof said partnership, doing business under the name of the ,Ormonde Cycle Company, and under the direction of E. J. Wil· another of, the defendants. If, therefore, the acts complained of conB,titute' infringement, these defendant.8 are joint tort reasors and aile both liable. Estes v. Worthington, 30 Fed. Rep. 465; Maltby v. Bobo, 14 Blatchl. 53. The defendants further deny infringement upon the followinl'l ground: The original inV'entor obtained patents for his invention in Great .Britain, a.nd subsequently in the United States. He assigned to complaina.nt all his interest in the American patent. Alterwards the owner of the British patent licensed the defendants to a.pply to a bicycle in Great Britain the tires covered by said This bicycle was then imported into the United States, and sold by defendants. The defen4a,nts claim that such importation and sale do not consti· tute infringement. It is well settled that the unrestricted sale of a patented a.rticle by the owner of the patent conveys to the purchaser the right of unrestricted ownership as against the vendor. Holiday 'V", Mattheson, 24 Fed. Rep. 185. But the purchaser does not acquire any rights greater than those possessed by the owner of the patent. The owner of the British patent could not authorize either the vendee or his vendor to sell the articles in the Ullited States, 80 as to conflict with the rights of the owners of the American patent. This claim of defendants seems to be disposed of by the case of Boesch
mentof reissued letters patent No. 11,153, granted to John B. Dunlop,
TOWNSEND, District Judge. ThIs 18 a suit
the alleged infrlnge-
March 24, 1891, for wheel tires for cycles.
v. Graft, lMU. S. 702, 10 Sup. Ct. Rep; 378, where the Bupremecourt lays: "A prior foreign patent operates under our law to limit th", dwa;tion of patent here, but that is all. The of articlei4 in the United States under a United States patent trolled by10reign laws." The motiohfor an injunction against the and E. J. Willis.is granted. Inasmuch·as it does not appear that they had any interest in the sale of the infringing they are not liable to account.
TARR et al. v. ROSENSTEIN et at (Circuit Court of Appeals. First Circ1;1it. October 19, 1892.) No. 84.
A supersedeas bond. conditioned according to the statote,for prosecuting I&n apP6",1 effect and answeriJ:lg all dalll3g'es 'and costs. covers, not merely cOlllpensatiwl"for tlJ.e delay arising .from the but also the amount ,of tlJ.e decree'aj)p'ealed from, so far as the latter direbts the payment of money by appellant to appellee.' 51 Fed. Rep.,868, affirmed. "
8. SAME-mEREST-MONEY DEPOSITED IN COURT.
But in anaqtion Qntl1e bO,nd neither. the priucipal nQr sureties can be mulcted what as the rElstilt of the appeal; and where a sum dill>0sited, In court'by a receiver. was there retained pending an appeal, and no proviSion was made for inter;esttheN3oo in the maildate or the decree entered in pursuance thereof, no such. intereM .could be recovered In an ac868. affirmed. . tion on thesupersede8ll" bond. 51 Fed.
A decree fof the payment of by'liefendant to complainant was affirmed on appeal; and the decree entered in pursuance of the mandate allowed froom the date Qfthe appeal. Notice was at once giVlln to the suretie! bond that plaintiff l.ooked to them for payment of the deon the cree. Two days later the stireties .weresummoned as trustees in a suit against theplalo·tiff, but gave no attention to the·same. and were defaulted therein. Hsld that, 8S they were in actual personal default to plaintiff from the date of the notice, could not payment of. interest to him because of the. trustee pro¢es,. especially as they did not set aside and cause to remain idle 'any fund to meet the decree or the judgment in the action. 51 Fed. Rep. 368, affirmed.
OIl' TRUSTEE PROCESS.
·· ·SAME-FEDER,\L AND STATE COURTS.
No restraint or embarrassment can,lawf,ully be put on the enforcement of judgments or decrees of the federal courts by means of trustee process Issued by a state court: and, as execution could have Issued against the principal debtor upon the decree entered In pursuance of the mandate, the enforcement of such decree against his sureties could not be prevented by the trustee suit, tor, while execution <:ould not have gone against them, they were so intimately conne.cted with him as to stand in the same position. 51 Fed. Rep. 368, 'affirmed. . .
In Error to the Circuit Court of the United States for the District of Massachusetts. , Action bJ JllliusW. Rosenstein and others against Robert TaIT, principal, and William C. Dolliver and John S. Dolliver, sureties, on ,jL supersedeas bond. Judgment for plaintiffs. See 51 Fed. 368, a full statement of the facts will be found. Defendants bring Affirmed. . . .
Benjamin F. Butler; and Eugene J. Hadley, (Eugene J. Hadley, of counsel,) for plaintiffs in error. William F. Slocum and Winfield S. Slocum, for defendants i.n error.