CORSER V. BRATTLEBORO OVERALL 00.
CORSER v. BRATTLEBORO OVERALL CO.
(Circuit Court, D. Vermont.
PATENTS FOR INVENTIONS-INFRINGEMENT-PRELIMINARY INJUNCTION.
Where, in a suit tor the infringement of a patent, it appears that the improvement is novel and useful, that the patent has been generally acquiesced in, and that the person who took the device to defendant, and uses it for him, used it formerly In the employ of the plaintiff, there is a sufficient presumption of validity to warrant the granting of a preliminary injunction. The affidavit of a third person, stating merely that he showed the plaintiff how to make the improvement upon which his patent is based, does not show such prior knowledge or use as will defeat the patent, and hence it does not raise sucb a doubt as to defeat the motion for a preliminary injunction. No. 372,062, for combined buckle and buttonhole of metal, having an offset forward. to rest upon the upper edge of the button to prevent unbuttoning, presumed valid upon application for a preliminary injunction.
2. SAME-PRIOR USE OR KNOWLEDGE-How SnowN.
In Equity. On motion for preliminary injunction. Suit by Brackett G. Oorser against the Brattleboro Overall Oompany for the infringement of plaintiff's patent. Motion granted. E. L. Waterman, for orator. Kittredge Haskins, for defendant. WHEELER, District Judge. This suit is brought upon patent No. 372,062, dated October 25, 1887, and granted to the orator, for a combined buckle and buttonhole of metal, having an offset forward to rest upon the upper edge of the button to prevent unbuttoning, and has been heard upon a motion fol" a preliminary injunction. This improvement, jilthough small, seems to be sufficiently novel and useful to support a patent. The defendant admits making use of the same thing. The patent alone would not warrant a preliminary injunction for this infringement; but the patent appears to have been acquiesced in generally, and to have been operated under, with the orator, by the person who took it to, and makes use of it for, the defendant. This adds sufficiently to the presumption of validity to warrant a preliminary injunction without any express adjudication of validity. The answer sets up prior knowledge and use of one Churchill, whose affidavit is produced, stating that he showed the orator "how to make an offset in the loop by bending the wires composing the loop," and that the offset of the patented articles "is the identical change suggested" by him. An answering affidavit of the orator states that Churchill's suggestion was of an inward bend of the wires, and not of this offset. This contradiction might raise sufficient doubt to defeat this motion if what Churchill says he did would defeat the patent. The conception of an invention is not making it; the embodiment of it is. The orator produced this invention; Churchill did not. According to his statement, as understood, he merely made a Buggestion which, perhaps, forwarded it. This
idea would not be such prior knowledge or use as, within the statutes, would defeat '8; ;patent.!;'Gayler v. Wilder, 10 How. 477; Coffin v. Ogden, 18, W@. 120. . Upon the undisputed facts of this case as it now stiulds, the orator'seems to be entitled to the preventive'.relief of 'l1preliroinary injunction against the use of this offset intlle. llletallic of this patent. Motion granted.
HENEY v. THE JOSIE et aI. (District Court,D. Rhode Island. . February 9, 1894:.)
ADMIRAL'l'J-LIBEL-JOINDER oFOAUSEs-IN REM AND IN PERSONAM.
A, libel against a, ve$llel she was owned "by J. ,and other persons to the libelants unknown;" 'and It was sought therein to recover money furnished for repairs "on the credit of the owner and said J.," and also ploney advanced upon a J. /llone. Held, that these cla1m:sC()uld not be joined. for the transactions out of Which they severalIYlll'Olle were unrelated, and thejm1:gqlents in rem ltnd in personam upon them. respectively, would not afl'ect the same persons.
In Admi'ralty. to libel. Libel by Archibald T. Heney against the schooner Josie)uld others for advances. :Exceptions sustained. '
This is a libel against the schooner Josie for money furnished to her master by the libelant for repairs and suppU-es, and also against John Jones and William Jones, copartners as Jones Bros., and part owners of the schooner, to recovera. Snm of mQBey ,advanced by the libelant on a consignment of piling over an,ll above the sum for Which, the piling was sold. John Duffy claims the schooner as master and part owner, and to the libelFirst, because, "in said Ubel' a cause of action in rem Is joined; with a cause of aotion in personam in :;thesame suit;" and, secondly, because "in said Josie for repairs and suplibel a cause of action, against the said plies is joined with a cause of action for ,d,ebt against Jones Bros. relating to a cargo of piling, and to pay for the same."
W. G.Roelker, for libelant.
" First. Two' claims in personam may' be joined together. Second. If one of the claims. in personam be also a claim in rem against the vessel and master, the vessel aodall are liable for the debt, and they may .be joined in the same libel, so, far as the claim against them is concerned. The court has entire control of' Its process, and will mold its decree in rem, against the vessel '80 as to apply only to so 'much of the claim as is good against the vessel in rem., That, where the shipmaster and owners are all liable for the debt, they may, on principle, be joined in the action, see Ben. Adm. §§ 393, 397; Betts, Adm. pp. 89, 99; Hen. 'Adm. pp. 330-332; The Enterprise, 2 Curt. 317; The Monte A., 12 Fed. 331; The Clatsop Chief, 8 Fed. 163; The J. F. Warner, 22 Fed. 342; 630 Quarter Casks of Shen'y Wine, 14 Blatchf. 517; The Zenobia, 1 Abb. Adm. 48.
E. P. Carver, for clailnant. QARPENTER, Distric:;tJudge.' The general principle is that se,veral issues may be, ti'ied in one action, when, that course will promote the and conduce to the convenience of 'parties and of and when no considerable inconvenience wUl arise therefrom. '9n this .principle actions are·. sustained