BALL GLOVE FASTENING CO. t1. BALL &: SO($]j)T FASTENER CO.
printed publication prior to the Invention. Compla.1nant then moved for leave "to file ll-n amended bill supplyinl: these omissions. Held, that such l.l. bill was not a new bill, and that defendant was not entitled, as:l. condition of nllowing the same to be filed, to have his demurrer sustained as on final hearing, but the filing would be allowed on payment of defendant's reasonable costs, without passing upon the demurrer,
In Equity. Suit by the Edison Electric Light Company against the Mather Electric Oompany for infringement of a patent. On motion for leave to file an amended bill. Granted. Dyer & Seeley, for complainant. West & Fairfax, for defendant. TOWNSEND, District Judge. Defendant demurred to the OrIginal bill. beca,use it failed to allege a written aSsignment of patent to complainant, and that it had not been patented or described in any printed publication prior to the. invention. Oomplamant thereupon mO\7ad for leave to file an amended bill. Defendant claims that, if complainant is given leave to amend, his demurrer to the original bID should be sustained as on a final hearing. He cites no precedent. or authority .for this course, but claims that the amended bill is virtually a new bill. I do not find any material difference between the Ol'iginal and amended bills, except that in the latter the omissions above stated have been inserted. The motion is granted upon condition that complainant pay to defendant the disbursements to which it has bee;n subjected by reason of the amendment, say $10, and with leave to defendant to file a pleading to the same on the next rUle day. As I understand it not to be the practice in granting such a motion to pa'Ss upon the demurrer, I decline to make any order thereon, :lnd deny defendant's motion for $20 costs for attorney's docket fee as on :enal decree.
BALL GLOVE FAS'l'ENING CO. v. BALL & SOCKE'r FASTENER CO.'
(Circuit Court, D. Massachusetts. December, 1892.)
PATENTS FOR INVENTIONS-INFRINGEMENT-AccOUNTmG-MASTER'S FINDINGS.
former and thl' fourth claim of the latter were infringed by the "Mead solid-ball" fastener, and accordingly ordered an injunction and accounting. fastener was included in the Tile master found that the "Mead decree, as being only colorably different froUl the solid-ball fastener. Held, that the finding should not be disturbed, the only difference being that in the solid-bnll fastener the connecting shank goes down through the upper plate and the material, and is upset underneath the lower plate, on the underside of the material, while in the former the connecting shank g-oesup through the lower plate, material, and upper plate, and is upset 01' compressed in the hollow ball.
In a, snit for infringement of the Kraetzer patents, No. 290,067, arid No. :30(;,021, for glove fasteners, the court held that tile first claim of the
In Equity. Bill by the Ball Glove Fastening Oompany against Ball & Socket Fastener Oompany for infringement of the Kraetzer JPatents, No, 290,067 and No. 306,021, for improvements in glove fast-
counting w;u:,oJ:dered." ,89,Jred.\ Rep. 790., The cause is now heard on exceptions: to the mQister's report. .Overruled and report confirmed.'" , ' William·B. H. Dowse, for·coDlplainant. Thos. Wm. for defendant.
COLT, Circuit Judge. This case now comes before. the court upon exceptions taken by the defendant to the master'a report. As to the first exception, which relates to the question of jurisdicti.onl lhaVe 1l()thin.·.g to,.8td.. d. to Wha.t is. said by the court in the opin.. ., .. . .. m. ..... injunction. 36 Fed. Rep. 3(}!). The to the Mead.hollow-ball fastener, fastener comes within the terms of the decreed that the Mead ,solid-ball fastener is an. infrfugelllent .of claim of the first, and the fourth patents. 36 Fed. Rep. 309. The masclaim .found with ,a hQllow ball.to ·be identical in principle the Mead solid-ball fastener, the differin cQ#J,lc1;iO;D.; and he to enter into the ence being Ol',,,W specifj,ca1lY compare the hollow-ball, prior fastener,w:ith.the ,Kraetzer patents, or to permit the introductiollof ,;cela:t1ve to the merits.. of the hollow-ball ·. solely to the button member of a '1:0. fl,tstener, tlj.e connecting shank goes down through thEpivper plate the material, and 1s upset underneath the lower riIl-deI:side of material; while in the hollow· ball fastener the connectirig shank. goes up through the lower plate, material, and upper plate, and is upset or compressed in the hollow ball. Upon a comparison of these two structures, I agree in the conclusion reached by the master. In the opinion referred to, the com said:': .
patents slJ,ovld .not be limited to the. exact forms found dein the specific:ationsj and the defmdant should not be permitted to escape by making colorable or immaterial changes in construction, while retaining all the vital parts of Kraetzer's improvements!' "'l'he
It is evident that the 'nil¥!ter, upon examination, considered that the differencebetweeil.tp.e Solid-ball and the h911ow-ball fasteners therefore concluded that the hollowwas ball structure was within 'the. opinion and decree of the court, and that it was therefore unnecessary and, perhaps, improper, for him to sufficient reason for changing the go ter's .The eXceIluons are overruled, and the master's report confil'med.
OVERMAN WHEEL CO. 11. CURTIS.
DICKERSON v. GRl<JENE et aL (Circult Court, D. Rhode Island. November 17, 1892.) No. 2,362.
PATENTS FOR INVENTIONS-PLEADING-PROFERT OF PATENT.
A bill for infringement alleged thM "on the 30th day of October, 1888, letters pateut of the United States numbered No. 391,875 · · · were is!'lued. · * · as by a certified copy of said letters patent in court to be produce1 will more fully appear." Held, that this 'was sufficient profert of the patent to make the same a part of the bill. Bogart v. Hinds, 25 Fed. Rep. 484, and American Bell Tel. Co. v. Southern Tel. Co., 34 Fed. Rep. 803, followed.
In Equity. Suit by Edward N. Dickerson against William R. (keene and another for infringement of a patent. On demurrer to the bilL Overruled. Statement by OARPENTER, District Judge: Tills is a bill in equity to enjoin an alleged infringement of letters patent for an invention. The bill alleges that "on the 30th day of October, 1888, letters patent of the United states numbered No. · * * were issued, * · · as by a certified copy of ;;aid letters patent in court to beprodnced will more fully appear." 'rhe respondents demur because the complainant "has nowhere set forth what the 'medical compound' is, the alleged sale of which by said respondents he claims to be an infringement." Oowen, Dickerson, Nicoll & Brown, for complainant. David S. Baker, Jr., and William O. Baker, for respondents.
CARPENTER, District. Judge. The respondents, in support of their demurrer, argue that the bill should set out the nature of the patented invention, or at least should make the specification of the letters patent a part of the bill in express words. But it seems to be settled, at least in the practice of the federal courts, that pr.>fert of an instrument, such as this bill makes, is sufficient to make "uch instrument a part of the bill. Bogart v. Hinds, 25 Fed. Rep. 184:; American Bell Tel. Co. v. Southern Tel. Co., 34 Fed. Rep. 803. 'rhis demurrer must therefore be overruled, and the respondents vI'dered. to answer over.
OVERMAN WHEEL. CO. et aL v. CURTIS. (Circuit Court, D. Connecticut. October 17, 1892.)
1. PATENTS FOR INVENTIONS OTHER CIROUITs. SUIT FOR INFRINGEMENT ADJUDICATIONS m
The fact that the jUdiciary act of March 3,1891, took away the appellate jurisdiction of the supreme court in patent cases, did not extinguish the doctrine of comity between circuit courts, so as to diminish the weight which should be given to a prior decision in another circuit in relation to the same patent. Am&rican Paper Pail, etc., Co. v. National Folding Box, etc., Co., 51 Fed. Rep. 232, followed.
to Albert H. Overman, for an improvement in pedals tor velocipedelJ,
2. BAKE-INVENTION-VELOCIPEDE PEDALS-
Claims 1 and 2 of letters patent No. 329,851,1ssued November 3, 1885,