BUZZELL V. FIFIELD.
That mill is not known to me, and the only other .allusions to it, in the record, are two passages in the testimony of the complainants' expert, from which I understand that it was made w:th radial arms, like the old sprinklers, both experts agree are not anticipations of any of these sprinklers which contain a chamber. I therefore pronounce the patent to be valid. The defendant has improved on earlier sprinklers, and holds a patent, later than the plaintiffs', for his improvements; but they are additions, and he uses the plaintiffs' combination, plus a tube, which enables him to have an upward jet of water, and a valve which allows him to shut the water off from the rose, so that the sprinkler may be turned intq a jet, or both jet and sprinkler may operate simultaneously; but, whenever the rose is working, the apparatus for the jet has no effect upon its operation, or that of the combination of which it is a part, except to divert a small part of the water. Deoree for thfl pomplainantB.
(Circuit Court, D. Massachusetts.
January 27, 1881.)
a new article of manufacture, consisting of a atrip of llexiblemateriaI coated upon its outer face with abrasive material, and having said face made convex longitudinally and transversely, to be applied to the peripheries of wheels for finishing the heels and edges of boots and . .. shoes, held, invaUdfor want of novelty.
In George S. Boutwell, for complainant. James E. Maynadier, for defendant. LOWELL, D. J. The plaintiff's patent of June 20, 1876, No. 178,994, is for an improvement in abrasive paper, for finishing the heels and edges of boots and shoes. The stat, v.7,noA-30
af the art, and'its improvement by the patentee, are thus se.t out in the speomcation: "In the manufacture of boots and shoes by machinery, the edges of the heels,and portions of the shanks. which present concave surfaoes, cave heretofore been finished by expensively-prepared abrasive wheels, which, requiring frequent renewal, materially increased the expense of the articles to be manufactured. To obviate this difficulty is the design of my invention, which consists, as a new article of manufacture, in a strip of flexible material ooated upon its outer side with abrasive substance, and· having said side made convex, transversely and longitudinally, substantially as and for the purpose hereinafter specified." The drawings show a strip of paper, or cloth, which is first to be covered with powdered' glass, sand, emery, or other abrasive material, "after which said strip is moulded so as to cause said abrasive surface to have a cOnvex form, transversely an.d longitudinally. The strip thus prepared is coile.d into a roll, as seen in figure 1, and in such shape is soldta manufacturers of boots and shoes,who employ it upou,the peripheries of wheels, which correspond in width and convexity to the like of said strip, the latter being first cut to the necessary length to enable it to encircle each wheel, and then secured in place by any desired means." It then shows the advantages of this mode of preparing the surface of the finishing wheels, .and claims, "as a new article of manufacture, a strip of flexible material coated upon its outer face with abrasive substance, and having said face· made con. vex, ana longitudinally, suhstantially as and for the purpose specified." . The state of the art was not precisely. what the patentee supposed. It is not now disputed that the na'rrowfihishing wheels were made of woollor iron, then coated with a rifig or tire of felt, which was trimmed to the exact form desired,and then covered with a strip of cloth, which was secured in any convenient way, and then coated with sand, etc. Such a strip, when on the wheel" was substantially, for aught that I ean ,see, the patented stl.'ip.j it certainly was if it had become stiff enough to reta,in its shape and it could be removed and
BUZZELL 11. FIFIELD,
replaced as cheaply and easily. The defendant insists that it was not a patentable improvement to remove such a strip, and sell it as an article of commerce; or, in other words, that to mould such a strip upon the wheel, or off the wheel, is the same invention. But there further evidence, not so full and clear, upon the state of the art. The patentee had, in fact, invented a very good machine for moulding sandpaper, but this he has neither described nor patented. He gives no directions for moulding the flexible material, excepting that it is to be moulded to fit the periphery of the wheel. The conseqnence is that on the one hand, if his patent is good, he covers all moulded strips, however well or ill dode, if they wjll work, and retains his machine for his own use:; and, on the other, if the thing had been done before, however well or ill, but 80 as to be of practical use, his patent is not good. Now I am convinced by the evidence that sand-paper had been moulded in a comparatively imperfect manner, but 80 as to be actually applied· to and used upon this class of. finishing wheels, with effect, before the time of his discovery. One Busell did this with a block and mallet, long before well known to shoemr<kers, and used by them in moulding leather. The patentee has described no better way; he has merely directed that the thing should be done. It is, therefore, in my opinion, no answer to Busell's anticipation to say that his s.trips would never have become articles of commerce. They served the purpose, and would, if now for the first time made or used, though not good enough t@ find a sale, be an infringement of the, ,patent, and they, therefore, invalidate it. Bill dismissed.
DE VER WARNER V. BASSETT
(Oircuit Oourt, D. Connecticut. April 5, 1881.)
PATENT No. 197,913-IMPROVEMENT IN CORSETS-MoTION FOR PRELIMINARY INJUNCTION-CONSENT DECREE NO FOUNDATION,
A decree by consent in one circuit is not such an adjudication of a patent as will lay the foundation for a preliminary injunction in another circuit.
Munson <t Philipp, for plaintiff. Wooster <t Torrance, for defendants.
SHIPMAN, D. J. This is a motion for a preliminary injunctionto restrain the defendants from the· alleged infringement of. two, letters patent, each issued to the plaintiff for an improvement in corsets. The first patent was issaed April 10, 1877, was surrendered, and was re-issued March 5;' 1878;/ being No., ,8,114.. The other patent was issued Decembei!4, 1877; ilind'is· No. 197,913. No 'adjudication has ever been; ha,d,inr'egard'to re-issue ;No. 8;114; sluHm upon the' hearing that the 1did not: ask for a iu3·unction..under this 'or ahout De') cember:'29, 1879, the plaintiff filed his-bill ofoomplamt in the United States circuit, court for the, eastern· distr,ictof: Michigan against the' DetroH. Skirt' & . Corset Company; \ alleging the infringement of both patents. ,AhoutJanuary, 10,1880, a motion for preliminary injunction was afteria hearing, a temporary injunction was granted to restrain the: defendants from the infringement of ' No. 197,913. A rehearing was allowed on motion of the defendalDts,: and the injunction was again ordered to issue. A settlement was afterwards made, and a consent decree was entered against the defendants. This is not such an adjudication upon the patent as, in my opinion, should lay the foundation for a preliminary injunction in another circuit. It was a hearing upon affidavits, and although the learned court came to a deliberate conclusion, which was adhered to upon re-examination, the