TRAVER V. BROWN.
driven on," and each is provided with a bearing·surface so inclined as to prevent the top edge of the hoop from curling inwardly. The bottom platen has these features and is not segmental. In other words, the defendants do precisely what Glankler did; but Glankler did it before the defendants or anyone else. Their machine may be an improvement, they may have introduced some novelties, but that they have appropriated the principal features of the invention -the inclined bearing-surface and the stop-rim-there can be no doubt. Many minor differences can be pointed out, but a discussion of them is unimportant in view of the construction to which the complainants are entitled. The fact cannot be denied that the defendants have seized upon the salient operative features of the patented device. Glankler was the first to hit upon mechanism for driving the chine hoop of a barrel which supplanted the primitive hand method. The defendants have appropriated his ideas and seek to accomplish the same results by analogous means. The features which make their machine successful are Glankler's and not theirs. The patent law would offer but slight protection to aD. inventor if an infringer can esoape the consequences of his acts by making the unsubstantial changes which these defendants have made. The complainants are entitled to the usual decree.
TRAVER v. BROWN.
(Circuit Court, D. Vermont.
July 31, 1894.)
The fact that one using the material features of a patented invention has made improvements thereon does not prevent such use from being an infringement. Marking an article "Patented," not with the day and year of the patent which covers it, but with the date of a previous patent to the same inventor, upon which the later patel1t is an improvement, is not a compliance with the statute, and gives the patentee no right to recover damages.
Sum-MARKING ARTICLES "PATENTED."
The Traver patent, No. 431,957, for a "stitch-breaking and raveling attachment for machines for sewing looped fabrics," held valid and infringed.
This was a bill by Adelbert Lee Traver against Eugene H. Brown for infringement of a patent. Odin B. Roberts, for orator. Franklin Scott, for defendant. WHEELER, District Judge. This suit is brought for infringement of patent 431,957, dated July 8, 1890, and granted to the orator, with three claims for a "stitch-breaking and raveling at· tachment for machines sewing looped fabrics." The first claim is for:
attachJ)lent, bining with b&;1" Jw,viJ1g awedge;sh1\ped, end, contwo ,parallel a lower edge ,1y':!ngclose to and pl\rallel with thepl1l$oq said :pln ptlJ,te:'lI.ndliri inclined tippef edgeot sufficient length and tn'cltrlatlbn to' give to: We wedge-shapedpntt, near its rear,end, sufficient d,lmensit'lh!'todraw out or break the 'loops of, the fabric, a guide plate lying against side fabric from said bitr and wedge. and 1I.llV'i:qg a13J9t oppqsite s4Id'Ven,ge mechanism, said bar maybe rectJjrocatlld tn the directionol' the lower edge of Its wedgeshaped e'n."throilgh said slot in Mid guide plate, auda fraDle for supporting and, !tuldtnt, 'ealllbar, ,for', spwortlng saId guide plate, a;ndcarrying said as and fQr the purpose set forth."
. "(1)' ,,Ad fabric "IrtitGh"breakhig <and
The' :tMrdiclaim is fbr sUbstantially the same elements, with a jaw clearing away the surplus material of the fabric. ,a are' for, preparing,' the uneven. edges of knit fabrics f9r to others. At first the edges were sheared, which breaking the stitches in line being better. The orator paten:t4l:0,720, datM September 10, 1889, for a trimmel'forthis pUl'pose,which pierced the loops from opposite sides, them! t6 ,break the stitches, and"'made' one machine it, .n,ot work well. This prior patent, and . tliepatentofficeby which a claim fora single stitchbreaker was dropped, ,are relied upon to defeat the novelty and validity of the patent in!suit; The claim dropped was for a combination with other devices, of one or more, and the patent was for the combination of several, levers with points for piercing the fabric positioned on them,fQl,'brea:!f.ing stitches, by lifting the points while in the fabric.'The patentin suit is for a combination with other detlCes of a.:bar"shaped "to. give to the wedge-shaped part, near its rear end, sufficient dimensions to draw out or break the loops of the, fabric." The fw-mer pulled; on the fabric, and the latter forced the sides of the, loop apart, to break the stitch. 'They did the same thing, but in different ways, and mechanically were different thing"., Ncdther the claim dr9Pped nor the patent was for any combltiation wedge-sha,ped bar with any devices; and the dropping:oftheclab:n was not any abandonment of, nor the former patentanyahticipationof, the invention patented in this patent. That the' orator is really the first inventor of this mahe does not appear to have lost his ..chine is nqt right to. any'parl oftheinv:ention; and this patent"not the former, seems to cover it. The defendant makes su,ch attaclJ,ments having such a bar with its rear end of "sufficiet1t' dimenslonif to draw out or break the loop of the fabric," operating horizontally to spread the loops and break the stitches, instead of perpendicularly, and in combination with different-shaped guide plates 'and propelling contrivances, but breaking the stitches and clearing away the surplus material il1li1ubstantlaUythe same manner;' In doing this he appears to have 'taken and used a' part of the orator's patented. invention, and" to 'that extent toinfririge: 'HE! may have'improved upon it, but using it in an improvefuentilfnone of that purpose, an infringemen t.
The orator makes and sells these patented marks them "Patented September" 10, 1889," the date of the former patent, and not as patented at the date of this patent. The statute (section 4900) requires a patentee making or selling the patented articles to give notice of the patent by fixing thereon, or on the packages, the word "Patented," with the day and year of the grant, and provides that, on failure in this, no damages shall be recovered, except on proof that the defendant was duly notified of the in· fringement, and continued it afterwards. This statute prevents a manufacturing patentee from recovering any damages without al· leging and proving, either the marking of the articles or packages as patented, with the day and year of the patent, or actual notice to defendants of the patent and the infringement, as a part of the case. Dunlap v. Schofield, 152 U. S. 244, 14 Sup. Ct. 576. In this case the orator has alleged marking toe articles "Patented," "according to the statnte," without alleging actual notice of the patent or of the infringement. The answer neither admits nor denies this, but puts the orator to proof of it. The pI'oofs do not show marking with the day and year of this patent, and therefore the orator has failed to show any right to recover damages for the infringement of this patent. Upon these considerations the orator seems to be entitled to an injunction only. Let a decree be entered for the orator for an injunction, with
THE WANDRAHM. MERRITT et al. v. THE W ANDRAHM. (District Court. E. D. New York. August 1, 1894.)
!rIAR1TTME LTE!\"S-CONTHACT-RuR1ND SUNKEN VERRET.,
A subcontract to furnish materials and do certain work in the of a vessel sunk in the St. Lawrence river for a stated sum held, in view of all the circumstances, and especially the absence of any reference to the credit of the vessel, to have been made upon the credit of the prin· cipal contractors alone, and to have given the subcontractors no lien.
This was a libel by Israel J. l\feI'ritt and another against the steamship \Vandrahm to enforee an alleged lien. Benedict & Benedict, for libelants. Hyland & Zabriskie, for claimants. BENEDICT, District Judge. The steamship Wandrahm having been wrecked in the S1. Lawrence river, her owners made a contract with the Morse Iron Works, a corporation of the state of New York, by which the vessel was to be raised by the Morse Iron Works, brought to Kew York, and there repaired so as to restore her to her former condition, the whole for the sum of $60,000, to he paid bv the owners to the Morse Iron Works. Thereafter, the Morse 'Works employed the libelants to do certain work in raising the vessel then sunk in the S1. Lawrence river, in pursuance o,f