FEDERAL REPORTER t
1llfI:liJ;lgement is sufficiently established. It is admitted. that the ftl'tiQIeftJntroduced to establish infringement were made by the defeJldant. l1The process used by the defendant is the same as that de· scribed in the patent, with one step added which is not described. After' the vessel to be enameled has been dipped in the glaze the operaror shakes it, and by this means produces the desired result quieker than when the shaking is omitted. That the process can be practiced without this additional step is stlfiiciently demonstrated. It,was awell·known fact among enamelers that this manipulation would save time, and it is thought that one who applies it to the process in .question does not thereby escape infringement. He does not use the process any the less because he uses something in addition to the process. Even if 'it be assumed that the defendant has introduced.an improvement, it is an improvement upon the Kegreisz process, p.p.d SO as the defendant uses that process it must be treated asan\Dfrillger. The complainant is entitled to the usual decree.
'tALANCE & GROSJEAN H·ANUF'G CO. v. MOSHEIM. (Cil1euit Court, b. D. New York. December 22, 1892.)
.. In EqUity. "Bm by the Lnlance & Grosjean Manufacturing Company for infringement of . Dect'ee forcoi:nplainant.
. Judge..Thedecision mthe preceding. cause (53 Fed. Rep. 375) this caUS,e It is concedE;ld that the defendant sold the are Uc1esllll?roof made by the Habermann Company. The secoM claim is in· tended«to iclhrer the product of the protiesl! in the first claim, and, thus limited, I think it is valid and that the defendant has infringed. Wile OOtAPla1llllat ise;qtltled to the uslliildecree upon the second claim
DE LAMATER et al.v;· DEELEY et ai. (CJircuit
S. D. Ne;w York. December 17, 1892.)
Fo'R brVENil'IONS-VALIDITy-PRIOR USE AND SALE-,AIR ENGINES. Heillsued.patent No. 9,414, granted Oetober 12, 1880" upon original pat· ent Xo. 22f),052,Issued March 30, 1880, to John Ericsson for an air engine, is invalid because the assignees of the inventor marle and sold several rna· chines substantially the same as that of the patent more than two years prior to the /lrpplicatlon.
In Equity. Suit by William de Lamater and others against Robert Deeley and others for infringement of a patent. Bill dismissed. W. O. Witter and R. N. Kenyon, for orators. Ohas. G. ooe, for defendants. WHEELER, District Judge. This bill is brought upon letters pat· ent 9,414, reissued October 1l'580, for original patent No. 226,. 052, dated March 30, 1880, and granted to John Ericsson, aSilignor, on an application filed February 19, 1880, for an air engine. The principal defense is that the machine had been in public use and on
DE LA MATER
sale for more than two years prior to the application. The proofs clearly show that C. H. de Lamater & Co., assignees of the invention, made several of these engines, and set up one for Jonathan Thorne, charged it to him, and sent a bill of it, which he paid by check October 6, 1875; that they sold another to Russell H. Hoadley in the summer of 1877, for which he paid $250; and that they sold some others; but these sales are the most significant. The plaintiffs claim that these engines were sold among friends for experimental use; but they were sold without reservation, and the experiment seems to have been more to see if unskilled persons could operate them than for the improvement of the machines. In Egbert v. Lippmann, 104 U. S. 333, the use of a pair of corset steels presented by the inventor to a fdend was held to be sufficient to avoid the patent. The CU8e at bar differs from Manufacturing Co. v. Sprag-lle, 123 U. S. 249, 8 Sup. Ct. Rep. 122, where the sale was of the prodact of the machine itself. The court there said:
"A single sale to another of such a machine as that shown to have been in use by the complainant more than two years prior to the date of his application would certainly have defeated his right to a patent."
The eij.gines sold were lUre those of the patent in all r lspects, 'except that in those a walking beam moved by 1he working, piston was crooked,and at its end worked' a pump at the side of the cylinder, while in those of the patent the walking beam is straight, ltIld worktl the pump at the side of the cylinder opposite to the pivot of the walking beam; and in those the rod of the exchange piston was connected with the ends of a forked lever by a straight crosshead on the piston rod, and straight rods -from the ends of the crosshead to the ends of the forked lever, while in those of the' patent this connection is made by arched rods between the ends of the forked lever and the head of the piston rod. The walking beam was made straight in one of the first engines; the arched rods first appear in the application for the patent. The arched rods are better thanihe crosshead .and straight rods were, and the walking beam is better where there is room for it than the crooked one was, but they do the same things in the same way. All the claims are for combinations of parts in such an engine; and the crosshead and straight rods were equivalents for the arched rods, and the crooked walking beam for the straight one, wherever found in these combinations. Those engines sold would have been full infringements of the patent. These absolute sales of these engines by those' acting under the inventor, without reserve, more than two years before the application, appear to be a full answer to the patent. Let a decree be entered dismissing the bill, with costs.
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FOR ATION-Cni..l!l RAILWAT TEN!$lojlfJiApPARATUS.' . I L ' · ' · " , .',', . LetteNl to Henry ,Root for a tension the a cable f!,-ilwaj",. cOllsisti,ng.of a cable wheel a car, wIlich 'is he.avy weight, ,and the wheels of "wM'Otitravel upon' the Tails' of a larger fr9.me or car adapted to slide upon a smtlonarY'irack and,lfa-vlng paw:ls to.' ,:eng:age with a 'holding, rack thereon, with blockS,a,U,q ,tacklefo,. clrawing the frame ,ba,ckward,the same by the ,roPe lIlRundll gipsy keyed the of the cable" wheel, 'possesses 'patentable'invention over" the Eppelshelmer patent, '(No.11l8,OO9, Issued Ang'llllt 7,1877,}wherelna single caris actuated by a weight. which Is raIsed a crank attached to a druJ;ll having suitable pawls.
Tbe'RootpBtent isfnfringed by an apparatus which differs from It mainly inhavlng'the timbeTs'bf the lower carol'!rame cut away to let down the car carrying the cable wheel,lso that both cars travel upon the stationary track. 1
Appea.lfrOmthe Oirctdt Court of the 'United states for the North· ern District'of .Oalifotma·. ',Bill bythe'Paci1lc Cable Railway Colllpany against the Consolidlit.ed Piedmont Cable' Company for infringement of letters patent No. 244,14:'1, issued July 12, 1881, to Henry Root, for a tension 'apparatus for taking up the slack of the cable in cable railway$. The oircuit a decree sustaining the validity of both claiJn$ of ·the infringement, awarding a perpetuaJinjuncti()n, and referring the cause to a master for an accounting 'as 'to prollts and damages. . From this decree the de· fendant appeals;.· A:ffirmed. . The patentee in his,specifications thus describes his apparatus:
"It conlllfltsbf a wheel. A, grooved to receive a cable, B, which passes around ft, as shown. ,The wheel,A. has its shaft journaled in boxes upon the frame· work of a car, .c, ,which is provided with wheilis. D. These wheels are flanged and run upon rails or which preferably set IJfli ll e .with the cable. 4:heavy chain or rope, is)secured to the rear end of the car, and passes back· ws.rd over a pulley, G, and thence down to a weight, H, sufIlciently heavy to keep thCil necessary tension on the cable. The rails on timbers,E, are united to a framework, I, which rests upon long timbers, J, also set parallel with the lin!! of formed or secured the cable. Upon the upper !lurface. of the timbers, J, strong racks, K, and thel'8u'ends of the timbers, I, have powerful hook pawls, Iu attached to, them. Thellil pawls engage with the teeth of the racks, and thus llold the timbers at any point where they may be plllced. In .order to draw the timbers, J, back', when necessary; a powerful double block, M, with suitable ropes. P, connects the rear of the timbers, I, with the solid 11lftsonry, N, at the rear of the tunnel. A .gipsy, O. Is keyed to the shaft of the cable wheel, A. and the end of the rope, P, Is carried from the block to the gipsy, around which it may be passed with a few turns, hang:ing loosely, so that the gipsy turns freely within it ordinarily. "The operation will then be as follows: When the cable is first put to work the weight, H, will be drawn up close to the framework; but. as the cable stretches, keeping up the tension, gradually descends until It is at the bottom the of the Pit. It is then necessary to draw It up again. This I do by drawing upon the free end of the rope, P, until It binds upon the gipsy sufficiently for the latter to wind it, and thus act upon the blocks and draw the frame, I, backward until
See note to the following case.