a.nd others v.
(Oircuit Court, E. D. Ne'tD York. March 17, 1881.)
No. 47,135-RE-IBBUES No. 8,106 4ND 8,123-PoCKET-BoOK ("'LASPB-MOTION,FOR PRELIMINARY INJUNCTION-VALIDITY. Upon a motion for a preliminary injunction, letters patent No. 47,135, granted April 4, 1865, to Charles Beaver; re-issued letters patent No. 8,106, granted February 26,1878, to Zinn and Messer; and re-issued letters patent No. 8,128, granted March 12, 1878, to Zinn and Messer,--all for improvements in, pocket-book clasps,I Md MUd. 2. PATENT-COHBINATION-MACHINE-NEW USE-!NFRJlIlGEHENT. A patent may secure a combination or machine without regard to the purposes for which it is intended, and will be infringed by the employment of such device for a purpose not mentioned in the patent. Thus a patent for an improved clothes-fastening attachment or clasp, will be infringed by a. device substantially llimilar to it, used on a pocket-book, though the use of such fastener upon pocket·books was not mentioned or claimed in the patent. 3. PATENT No. 47,185-:-CLOTHEB FASTENER-CORBET FASTENER-ANTICIPATION. , Letters patent N'o.47,135, for an improved clothes fastener"consisting of a metallic plate,provided with a projecting stud applied to the under lap of the article to be fastened, and a, hinged button or cap toshllt down on the top of the stud, and enclose the upper lap of the article, when it'is slipped over the stud, by recess in it, held, Mt anticipated by a corset fastening in which the cap are not hinged together, but are attached one to either side of the corset, aI).d operate by slipping an eyelet placed in the cap over a stud placed in the plate. ' -4. RE-IsBuEB No. 8,106 AND 8,123-POCKET-Boox CLABP8-KOnLMAN CLASP-ANTICIPATION-!NFRINGEMENT. Be-issued letters patent No. 8,106, for a,n improved clasp, consisting of a base plate with a stud attached thereto, over which an eyelet in the lap to be clasped passes, a cap whose t,ailpiece presses against a spring attached' to the base plate and engages with it by arms working in flanges in the base plate, holding the cap and stUd in conoeotion, and permitting the cap to ;move back and allow the eyelet to' bll withdrawn; and re-issued patent.No. 8,123, for an iinprbved pocket-book clasp, consisting of a base plate and cap a sloUherein,with its tan.pieqe pressiilg upon the free end of a spring attached thereto, holding ,the cap anq base and forih, so' in connection,and permitting'the cap to as to clasp,between it and the base, the lap desired to be held thereby,-held, not anticipated by the Kohlman clasp, having a base plate and box extcndiT!3', over a large part thereof, a cap extending L
znn. ". "',11111.
over the and biJ!.ged to· tbe front edge of tbe box by means of two ears on. the cap, on which the cap swings, the inner end or the cap having tail-piece pressing against the free end of a spnng attached to the base plate, which also has a stud, over Which an let in the lap to be clasped slips, and whereoI:l the cap rests when shut; and infringed by a clasp with a base plate, .. and a cap bearing thereon, with the whole its rearpol'tion bent down to form the tail-piece. .
J. Van Santvoord,for plaintiffs. F.'osi et Coe, for defendant.
amotion for a preliminary Itljl1n:ction to restrain the defendant from making a certain forni of pocket.book clasp, which, as the' plaintiffs contend, infringes upon certain patents owned by them. The bill sets forth three patents,One, No. 47,135, issued to Charles Seaver, April", 1865, and assIgned to the plaintifts Zinn lind Messer, October 18, 1879; another, re·issue No. 8,106, dated February 26, 1878, issued to Zinn and Messer, assignees of Louis Messer; and another, re-issue No.' 8,123, dated March 12, 1878, issued to the same parties, . .,
This case comes before the court npon
The invention described in the Seaver patent is therein Itated to consist in.. A metallic plate, to be applied to the under lap or portion of the article Of wearing apparel, and provided with a projecting pin or stud and a , hinged cover or button, as it may be termed; the whole being so made and applied that the cover shall shut down upon the top of the stud, and enclosed under it the upper lap or portion of the coat or garment, which is to be provided with a hole or recess to put down o.ver the stud,"
The claim is for an.. Improved clothes-fastening attachment, the same consisting of the plates (J, and d, and the stud f, they being constructed and to operate in connection with an eyelet or hole the outer flap of the ganllcnt, substa.ntially in manner as hereinbefore explained."
In respect to this patent the defendants sayFirat. That it is limited by the terms of the specification to a mode of fastening for garments, and inasmuch as the defendants make a clasp iDtended .to be used on pocket-books, and nothing ,else, they dl) not, Infringe. " . :
The answer to this position is that, the Seaver paten' the combination or machine . " described, withtherein . . .
out regard t6 the purposes for which the fastening is and if the defendant's clasp is in substance the saine as tbat desoribed in the Seaver patent, it constitutes an infringement of that patent, notwithstanding it is intended to be employed for a purpose not mentioned in the patent. The next position taken by the defendant isThat if the Seaver patent is held to cover the device therein described, without regard to the purposes for which it may be applicable, then the invention is anticipated by the ordinary cotsetfastening and the ordinary hand-bag fastening, of which specimens are put in evidence.
. ut the corset fastening a.nd the hand-bag fastening differ B the Seaver clasp in this.: tha.t in the Seaver clasp the ton or cap is connected with, and hinged upon, the clasp operates by retaining between the capa.nd base the article intended to be clasped; while in tpe corset. fast-; ening and the hand.bag fastening, the two. plates are not . Qonnectedtogether, or hinged one upon the other,and the fastening is acoomplished by attaching one plate.:to onesiQ& of the corset; or bag-opening, and the other to the other· side,: and then siipping an eyelet placed'in one ,plate over a stud placed 011, the difference devices is plain ahd substantial. .. , 'd.' The last position taken respect this plitent is-:- '.
That an essential feature of the device the ,cap anll. base plate. are connected bya jackknife hinge, and the defendant's clasp is AO infringe, ment, because it contains no jackknife hinge.
As I understand it, there must .be a spring and also a pintle to constitute a jackknife hinge. The description of the drawings given in the Seaver patent states that the cap and base are connected by a jackknife hinge,but further on it is expressly stated that the spring may be dispensed with. I am unable, therefore, to say that a jackknife hinge is an essential feature of the device described in the Seaver patent. I have no difficulty, however, in holding that an essential feature of the Seaver invention, as desoribed in the patent, is a cap and base plate connected together by means of 8 hinge, of which a piutle forms a part. But assuming that the Seaver patent is for a combination wherein a spring is not, and a. pintle is, an essentia.l element,
ease of the aefenaants is not helpea because of the Mes..· sel' patents .ownedby the plaintiffs and set .forih in the bill. llamely: re-issue No. 8,106, and re-issue 8,123. The patent le-issue No. 8,123 is for a clasp consisting of three pieces-a base plate, a cap with a taU-piece, and a spring. These parts are constructed so that the cap shall hinge upon and engage with the base plate without the use of a pintle or its equivalent, and so that that part of the cap called the tail-piece"by. pressing upon the free end of a spring attached at the other end upon the bottom of ,the base, holds the cap and base in connection, while, at the same time, the cap is pflrIl).jtted to swingin ,and out, and so to ,clasp between it and the base any article desired to be.held thereby. The inventiOl:ldescribed in re-issue No. 8,106 is .the saml't as that i;n re-issue No.. 8,123, with this: exception : .that it has a ,stu,(j, atta.cilied to the base upon ,which the cap :shuts, and the article. intended to be .clasped: is' held; by means, of an eyelet. tha,t slips over the stud, instead of by, a;nabutrrumt upon the artkle clasped, as No. Tqedefendant's clas;p;isintended to produce precisely the same result aa that· accolIlplished by, the" Messer Jllasp; It of three,piecl:ls.,......a,base, a cap having and a spring. These PlJ.rts operate together in the same ma.ui ner as do the same parts in the Messer clasp, the only differ-, ence being that in the defendant's clasp tbe, whole of .the end of the .cap is bent down to form the tail-piece, instead ote only a part of the cap, as in the Messer This distinc.' tion does not, in my opinion, constitute a The functions of the tail-piece are the same in both clasps. Such a form of tai1-piece as that employed in the defendant's clasp would be suggested almost as a matter of course by the tailpiece of the Messer clasp. The defendant states in his affidavit that advantage is gained by his form of construction, but what that advants.ge is does not appear, nor is there any evidence except the bare statement of the defendant that the cost of the clasp is reduced by making it in his form. 80 far as I have been able to discover, the two clasps accomplish precisely the same result by
918 melins same. There is no'difference in prin. oipla between them. The form of hinge employed in the defenda.nt's clasp cllrnbe no more than the mechanical equivalent fol' the 'hinge employed in the Messer cla.sp; but I incline to opinion that all that has been effected by the ·defendant isa colorable change in form. But it is said the defendant has been awarded a patent, No. 221,377, by virtue of which he makes the clasps complained of, and thei-efore has the determination of the patentoffice that the change he has introduced -is substantial, and he is thereforeen.titled to go to final hearing before being subjected to .an injunction. Bnt no such patent is set up in the answer, and therefore no question as to the effect of the patent referred to can arise upon this motion. Upon the papers as they stand, showing, as they do, among other things, a genera.l acquiescence in the plaintiff's claim under these patents, I see no reason for doubt upon the qnestion of infringement of the Messer patents, and must gra.nt an injnnction, provided the Messer patents are valid. But the validity of the Messer patents' IS denied for want of novelty. The only evidence in support of this charge relates to clasps made and sold by one Kohlman more than two years prior 00 the Louis Messer application. The Kohlman clasp consists ofA base plate, a box extending over a considerable part of the base plate and'fastened thereto; a cap extending over the rest of the base plate and hingEld to the front edge of the box bV means of two ears fonned on the cap, on wllich the cap swings. The inner end of the cap hiOs::, tail-piece bent down undcr the box, so as to rest upon the free end of a spring, which is secured at the other end upon the bottom of the base plate. The base plate has 'a stud whereon the cap rests when shut, over which an eyelet in the article in,tended to be clasped slips, and so is held.
The differences between the Kohlman clasp and the Messer clasp ate these: The Messer clasp dispenses with the box fastened uponandcovering half of the base, to which the cap is attached by means of the ears, dispenses with the ears npon which the cap turns, and makes the tail-,iece of the cap to engage directly with the base plate, without the employment of either pintle or ears, and to rest upon the spring
ZINN V. WEISS.
on the under side of the base in such a manner that the base and cap are held in conneotion with each other without any other fastening, while the cap is permitted to hinge direotly upon the base, and so to olose upon a stud or abutment, as the case may be. the Messer clasp aocomplishes the same result as the Rohlman clasp, bUt it accomplishes this result by different means. The cap in the Messer clasp are not equivalent to the baae, oap, and .box in the Kohlman clasp. In the Rohlman clasp the cap does not engage with the base, as in the Messerolasp. In the Kohlman clasp the cap and box are connected together by means of ears, and the box secured to the base. In the Mes. sel'clasp no ears are employed,and the cap is held in imme· diate connection with the base by the operation of the spring upon the tail.pieoe of the cap. These differences are sub· stantial. By means of these a clasp is produced costing less to manufaoture, while at, the same time it is, more durable, for all danger of the box working loose from the is a.voided,-a result fatal to the efficiency of. the The importance of thesediffere:q.ces is proved by the fact that the plaintiff doel:! not seek to restrain the manufacture or sale of the Kohlman clasps, and the furtherfaot that the Rohlman olasps are no longer in the market, while there is a demand for the plaintiffs' clasp. , I am of the opinion, therefore, that the plaintiffs' clasp is not antioipated by the Rohlman clasp, and that the Kohl· man clasp affords no ground upon which to hold the Messer patents void for want of novelty. My oonclusion, therefoI;e, is that the plaintiffs are entitled to a preliminary.injunction.
(Oircuit Oourt, 8. D. Ne:w York. March 29, 1881.)
RE-ISBUE No. 6,964-:-IMPROVEMENT IN CAUSE-NEW:c..y.,.DISCOVERED DEFENCE. TO RE-OPEN
Before a motion to re-open a cause, and admit a newly-discovered defence, after a final hearing, will be granted, it must be clear that such defence, if it had been made at the tinal hearing, would have }'ooneffectual. Buerk v. Imhauser, 10 O. G.. 907. De Florez v. Reynolds, 16 Blatchf. 408 . 'I'hepu,mping device described in English letters patent No. 11,473, granted Thomas Uraddock, December 3, 1846, for improvements in steam-engines, boilers, and macainery connected therewith, held, not sufficiently similar to complainl'nt's or defendant's· devices·to warrant the court to re-open the callSe.
W:a:EELER, D. J. This cause has now, after final hearing and decree for an'injunction and an account for an infringement of a patent for a pump,-been heard upon a motion to re-open the case' and admit newly-discovered defences. The motion is founded upon English letters patent .No. 11,473, granted December 3, 1846, to Craddock, for improvements in steam-engines and boilers, and machinery connected therewith, including, among many other things, a pump. The pump there patented does not appear to be sufficiently like either the orator's patented pump or defendant's pump, adjudged to be an infringement, to warrant granting the motion, under the rule laid down in Buerk v. Imhauser, 10 O. G. 90'7, and De FlO1'ez v. Ray1Wlds, 16 Blatchf. 408. It is essentially a double-acting exhausting air-pump, for a lowpressure steam-engine, and not a lifting water pump, and is so described. Its inlet and all of its valves are at the top of its piston cylinder, and, as shown in one form by the drawings, the valves are beneath an open cistern, which is flooded with water that will prime the working parts when water is drawn, and through which the valves and piston are readily accessible for removing obstructions and making repairs, as
-See 4 FED.