FBDEItAt .REPORTElt,' vol. 64.
:to close .'them- for all .does not infctpge,th'e daims of No. 41:9,827. ., . : '. " 12.2..5. . . ... SR.I ,.C,l.,.ill. ..s.jl.f :m . . 420 e:. :0,. i.o,f1'.in.g.ed. The burner. Th-: for is not not a<lJustable, and It IS notsupported sense of the patent. Its is the direct opp(lsite of that attributed to the Neither] be .· that the radiators are equiva}ent,s'be,cause red.hot. The .object 6f the OaJ,'rillgton shell IS of, heat ,at the top of ill,material, sp.aJleap.d tp.e radiatpl'S are 'totallY different t4e shell of the. .. It .follows that the bill ,must be dismisse4i . , ': !' ,
BONSICk MACH. ; , . 'I, . . ., ,"
TEM:PT.,·l;;. . .
=======;:= CO. v. NATIONAL CIGARETTE co. ' ,
(O.t'Cuit Court,Sk D.New
October 2, 1894.)
INFRINGEMENT-MoTION TOPUNrSH FOR CON" .... , .
qpe"t!Q" whether de(endant il1fringes by making a .machine differing insoll)e respects f/:OIU one previo\lsly held by the court to be an infringement cltnnot be on amotfon to punish for contempt, when the new machine is' made tinder a· patent Issued after the injunction was granted.
by the Bonsack ::Machine Company against the Company for the of certain letters patent for machines. An injunction was heretofore granted (63 Fed., 'and.a motion is now made to punish for contempt for alleged .mlation thi:!roof. . Duncan&' Page, for coo:npillinant. Cowen, Dickerson & Brown, for defendant. This WIlS
I LAOOUBE,Circuit Jrudge. This is a motion to punish for contempt. .When the suit :was originally brouglit, defendants were using amachine:whichthe court has, after argument, held to be an infringement of complaimints' patents. The defendants are now u$ing a machine whichln some respects differs from the infringing machine alieady" passed Upon, and it appears that it is made under a patent'issued subsequent to the decree. The weight of authority is clearly against the proposition that in such a case the question of infringement is to be settled on amotion to punish for contempt. ·The new machine is broughtinto court with prima facie proof that, in the opinion of the patent office, it is patentablydifferentfrom the m.a<lhine of complainants. Whether it is an infringement or not should be settled by -appliCation for injunction, not for commitment for contempt.. Buprk v.:,llilhaeuser,2 Ran.' & A. 460, Fed. Oas. No. 2,107;;Onderdonk v. Falining, 2 Fed. 5flS; Wirt v. Brown, 30 Fed. 187; Truax v. DetweUnr;46li'ed.l1:'L Motion denied.
NEW DEPARTykEBELL co. V; BEVIN BROS. MANUF'G CO.
NEW DEPARTURE BELL CO. v. BEVIN· B.ROS. MANUF'G CO. (Circuit Court, D. Connecticut. November 16, 1894.)
STRIKER-LIMITATION OF CLAIM.
SAME-CONSTUUCTIO:'i OF CLAIM.
Such claim is infringed by a device which, though not identical in structure, contains all the elements claimed, and operates to perform the same function in substantially the same way, the lllleged differences of operation being merely such colorable and formal ones as result from the use of mechanical equivalents. National Typographic Co. v. New York TYP\lgraph Co., 46 Fed. 114.
The Rockwell patent, No. 471,983, for a bell having a striker arm with free rotary movement in eitha- direction, is limited by the previous art to the precise construction described and claimed, and is not infringed by a device which cannot be rotated ill either direction at will. Where an· inventor divides up his invention so as to present certain eiaments in different patents, he is thereby "limited W a more strict and narrow construction than might otherwise have been necessary" (Electrical Accumulator Co. v. Brush Electric Co., 2 C. C.IA. 682, 695, 52 ll'ed. 130), and the construction of the patents must be in conformity with the selfimposed limitations which are contained in the claims (Groth v. Supply Co., 9 C. C. A. 507, 61 Fed. 284, 287; Judd v. Fowler, 10 C. C. A. 100. 61 Fed. 821). A bill of complaint failed to allege any sale of the infringing goods, or that the infringed goods were marked "Patented," or that the defendant had notice that they were patented, but the evidence showed the sale of the infringing goods. An amendment had been offered before the hearing, containing an averment of the sale, the answer containing no averment of, want of knowledge, and it appeared that the defendant had actual knowledge of the patents and notice of the claim of infringement. Held. that the bill may be amended in accordance with these facts after issue tried and infringement declared.
,li. SAME-DIVISIO:'i 01<' INVEN'fIONS-CONSTUUCTIOK.
This was a bill in equity by the New Departure Bell Company .against the Bevin Bros. Manufacturing Company to l'estl'ain the infringement of certain letters patent, and for an accounting. Newell & Jennings, for complainant. C. L. Burdett, for defendant. TOWNSEND, District Judge. This is a bill in equity for an injunction' and accounting by reason of the alleged infringement of patents 456,062, dated July 14, I8n, and Nos. 471,982 and