GEO. A. MACBETH 00.:'0. LlPPENCOTT GLASS CO.
BtrlIdng out the super1luous words, this reads aI follow.:"
"For this pit, Ross S\lbstituted a metRrnc vaUlt, oPen at both ends: at one end, a fiue; at the opposite end, a fire chamber.. The fecal matter 'falls from the seats upon a perforated platform, which the solid ,portion. When desirable to remove the contents, a fire is built. The, piles ot matter are l'flpidly dried, mixed with some combustible matter, and burned"
The specitlcations and claim fail to point out the advantages of the perforated platform, and it may be that all relating to it could be omitted without changing the essence of the c()mplainant's description 01 the pith of its own, invention; bUt, of this, when the case comes down to the concise form above given, it seems to suggest at once to any intelligent miIid the common process of heating, drying, baking, or burning, with .such common changes of details as the daily occurrences of life constantly require, and' nothing more. The court need not repeat the brief and ordinary terms in which all this could easily be pllt, as they are apparent to everyone on slight consideration. If the, complainant had any claim to any part of the suggestion or idea of·:first drying, and then consuming, fecal matter, as a sanitary measure, this might show an inventive mind, within the meaning of the law. But its mecess in marketing a fireproof vault, with a grate and fiue attached, for drying and consuming fecal matter,even thOUgh the vault is traversed by a perforated platform in order to make two (',urrenUl of heated air, or to separate the solid portions from the liquid, is not the result of inventive genius, but of the mechanical sld'U of complainant in meeting the ordinary emergencies of. heating, drying, baking, or consuming by fire, for either domestic or public uses. Bill dismissed, with· costs.
GEO. A. MACBETH CO. v. LIPPENCOTT GLASS CO.
(Clreult COurt, S. D. Ohio, W. D. January 25, 1893.)
1. PATENTS FOR INVBNTIONS -MOTION FOB PRELmnlfABT INJUNCTION-EFlI'EC'I
Letters patent No. 14,373, Issued October 30, 1883, to George A. Macbeth, as assignee of Henry Dietrich, for a design for lamp chimneys, having been sustained on final hearing In two suits, and preliminary InjunctiOIlE\ having been granted In two other suits, In another circuit court, Its validity must be taken as established for the purposes of a motion for prelIminary Injunction, although defendant files a:tIidavits alleged to contain new evidence of oertBin prior uses.
OF PRIOR DECISIONS.
On a motion for preliminary Injunction against the infrIngement of a patent, the court will not go.lnto the questions of infrlngement and validity as on final hearing, although numerous afIldavits are 1I.1ed by both partlea, coverIng about all grounq of a record onflnal hearing, but, appearing that defendant is upOn debam.ble ground, wU1 refuse an ,Injunction, and require him to give a bond coverIng ptobable profits and damages, and to keep an account of his manufactures and sales, to be produced when called for by the court.
for infti¥gementof a design patent. On for li'preliminm-y injunction. OveITuled. ,'.",rlU'neaI.:K;a;y George n:.Ohristy, forcomplainants. . " "Frank. O.!.oYelan.dand Parkblson & Parkinson, for respondents. This is a motion for a preliminary injuneof design patent No. 14,373, for a. lmrip .chimney at its top ,a beading, or similar ornamentaedge. The was GeQ.A. MacJ>ethet 81. v. DaVldEvans et al.,t (m the western district ylvani.a,) and ,in MaCbet.ll.'. v.'. G.illinder, 54 Fed. Rep. 169, (in eastern district of PeIUlSyh'ama;) and preliminary injunctiolDS 48v;e been granted in Macbeth v. Glass Co., 54 Fed. Rep. 173, (in i;hew,-estern disFic;t of Pennsylvania,) and in Macbeth v. Globe 00.,1 northern:distdct of Ohio;) so that, upon the of the validity of the complainants' patent, the case is, for tAe purposes ofithe, motion, ,clear. But the defendants, while they contest t4e v;tJidity of the patent, and insist that certain prior of. ,which they produce by affidavits) were not before anY" the in. the former adjudications, rely also upon the def¢nse of that the chimney which manufactq.rejs. formed in precisely the way represented in the of complainantB' patent as old. Ip.th6' case N:acbeth v. Gi1ijnder; upon the hearing of a motion fW; .an attachmeIl,t against the reli1pondents for having disregarded the .cpurt attention to the fact that the decree limited the patent to chimney tops with circular or flared mouths,-ach having a "beading or similar ornamentation raised above" so as to present a pearl-like appearance, which the complainants called a "pearl top,"-and held that the ornamentation must be such as to present the beaded pearl-like top described in the specification. The case was' referred to a master, to take proof and report to the court uPQnthe facts, and the opinion suggests that, in making the inquiry, . care should be taken to avoid the danger of extending the reSpondents' liability beyond the limit sta,1;ed, the court stating that. the Jinebetween what is and is not an infringement is necessarily dim, and that the complainants' rights must be confined to what was clearly within the scope of the vatent. . The complainants have offered, in support of their motion, 75 affidavits, the defendants 40 affidavits, and the complainants 30 in rebuttal. In addition there "are exhibits and patents. Altogether, the evidence upon this preliminary proceeding covers about all the ground ola fun record on final hearing, and calls fol'l .. decision upon t4e v.alidity of the patent, and upon the question .f infringement, which I db not feel inclined, at this stage of the case a,nd"'upen exi parte evidence; t()undertake to make. How closely the 'coril:plainl!hts' I)lay prior patents and prior
In Equj.ty.,IIJJill:hythe 'Goo-A. Macbeth Company against the
Nooplnlon was filed.
MACBETH 'IJ. GILLINDER.
uses, and whether the defendants are withiil or without the bOundaries, will have to be decided upon the hearing. It is sufficient now to say that, in my opinion, the defendants are upon debatable ground. My conclusion is that this is a case for an order requiring the defendants to give bond in the sum of $10;000 to the complainants for the payment of any profits or damages that may be decreed against them; and an order will be made also requiring them to keep an account of their manufactures and sales, to be produced when called for by the court. The motion for a preliminary injunction is overruled, with leave to renew it if the bond above provided for be not furnished within 20 days from the date of the entry. .
MACBETH et aI. v. GILLINDER et at (Circuit Court, E. D. Pennsylvania. May 10, 1889.) No.6.
PATENTS FOB· INVENTIONS-COMITY .BETWEEN CIRCUIT COURTS.
A circuit court will not· disregard a deCision by anothereircuit court SItS> taining a patent, and declariJlg :infringement,unless fully convinced tbat such decision is erroneolli1,: and the existence of a grave doubt as to, the soundness thereof is not suificient warrant for refusing to follow it. .
.. BAME-VALIDITY-DESIGNS FOR LAMP CHIMNEYS.
Letters patent No. 14,373, issued October 30, 1883, to George A. Macbeth; as assignee of Henry Dietrich, for a design for lamp. chimneys, conSisting in what is called the "pearl top," are valid. with a so-called "prism top," as the original application included such a. top, . which was stricken out at the suggestion of the patent office, and the patentee, by accepting his patent, with this amendment, waived his claim to such design as effectually as if he had filed a disclaimer thereof, upon the suggestion of the patent office.
It is not an infringement of this patent to make or sell a lamp ch,ilIllley
The fact that the patentee subsequently applied for and received another patent for what is c13imoo to be virtually tbe same design would not a.ffect the force of the estoppel against'Wm under the former patent; for, if it was the same design, the new patent merely added force to the implication that it was not included in the old one, and, if it was not the same design, the taking of the new patent was a renewal of the assertion that this design was open to the public.
In Equity. Bill by Macbeth and others against Gillinder aild others for infringement of a design patent. Decree for complainants. James L Kay, Francis T. Chambers, and George H. Christy, for plaintiffs. , George Harding and George J. Harding, for defendants.
BUTLER, District Judge. The suit is for infringing letters patent No. 14,373-''Dsigns for Lamp Chimneys"-gTlJ.D.ted to George A. Macbeth, assignee of Henry Dietrich, October 30, 1883. This patent was involved in a suit by the same plaintiffs against Evans & CO.,1
No opinlon rendered.