months after the patent was issued. On receiving notice of tlie com· plainant's claims, he acquiesced in them. All substantial controversy is ended. Even if equity can enforce the penalties, it would not be within its policy to permit amendments at this late stage for that purpose. Therefore we will dispose of the case as presented to us at the final hearing. Let there be a decree for an injunction, with costs for the com· plainant. .
COVERT v. TRAVERS BROS. CO.
(CIrcuit Court, S. D. New York. December 9, 1895.)
PATENTS-EFFECT OF PRIOR DECISION-Ex PARTE INJUNCTION.
A decIsIon granting a preUmlnary Injunction, where no .counsel appea.:red for defendant, though some affidavits were submitted in his behalf, does not preclude the court, in a subsequent suit against a difl'erent defendant, from considering anew the question of the Validity of the patent.
SAME-PLEADING-DEMURRER TO BILL.
A patent manifestly invalid upon its face may be so declared on demurrer to the bill, but this power shOUld be exercised with the utmost caution and only in the plainest cases. All doubts should be resolved in favor of the patent. Button-Fastener Co. v. Schlochtmeyer, 69 ll'ed. 592, followed.
There is no Invention In simply clamping an open ring of metal around a braIded or twisted rope to prevent unbraiding or untwIsting.
The Covert patent, No. 208,157, for an Improvement In rope clamps, Is void on its face as to the second claim for want of Invention. The Ilrst claim, whIch is for a described method of connecting two parts of a rope, or two ropes, by clamping the same wIth one or more open metallic rings under pressure, dIscloses sufficient of novelty and Invention to prevent the same being declared invalid upon demurrer to the bill.
This was a bill in equity by James O. Oovert against Travers Bros. Oompany for alleged infringement of letters patent No. 208,157, granted to complainant September 17, 1878, for an improvement in rope clamps. Oharles G. Coo, for complainant Arthur v.Briesen, for defendant. The patent In suit, No. 208,157, was, In 25 Fed. 43. As the facts are now recalled the proceedings on that motion were ex parte in character. No one represented the defendant at the argument although some affidavits on his behalf were submitted. That decision does not preclude the court from considering the arguments which are now presented. That a patent, mani· festlyinvalid upon its face, may be so declared on demurrer is now settled beyond dispute. . The authorities bearing upon this proposi· tion will be found collated in the recent ('ase of Button-Fastenel' Co. v. Schlochtmeyer, 69 Fed. 592. It is also true that this power should be eKercised with the utmost caution and only in the plainest cases.
1885, before the court on a motion for a preliminary injunction.
COXE, District Judge.
coVEnT V. TRAVERS BROS.
If there is doubt it should be resolved in favor of the patent. New York Belting & Packing Co. v. New Jersey Car Spring & Rubber Co., 137 U. S. 445, 11 Sup. Ct. 193; Blessing v; Copper Works, 34 Fed. 753; Eclipse Co. v. Adkins, 36 Fed. 554; Manufacturing Co. v. Mosheim, 48 Fed. 452; Standard Oil Co. v. Southern Pac. Co., 42 Fed. 295; Hanlon v. Primrose, 56. Fed. 600; Drainage Construction Co. v. Englewood Sewer Co., 67 Fed. 141; Geebel v. Supply Co., 55 Fed. 825; Failey v. Talbee, 55 Fed. 892. The patent,. granted in 1878, contains two claims, as
"(1) The herein described method of connecting one part of a rope adjacent to another part, or the ends of two ropes, by clamping the same with one or more open rings of metal under extreme pressure, as set forth. "(2') One or more open rings clamped around a braided or twisted rope under pressure, to prevent unbraiding or untwisting, as set forth."
The second claim is for a metallic open ring clamped around a rope to prevent untwisting. In short, for a ring clamped around a rope. It is difficult to perceive how invention can reside in this claim. The patent itself recognizes the "well-known idea of twisting a wire around a rope" and many devices, such as corset-lacings, shoe-strings and whip-stalks naturally occur to the court where similar means have been used to produce similar results. The only object sought to be obtained by the use of the ring of this claim is to prevent untwisting or unbraiding. The split tube of the old corset-lace does that. There is nothing in the patent limiting the claim to ropes ·of large diameter. In fact the untwisting or unraveling feature is made to apply to "the ends of single cords." One who should cut off a section of the old split tube so that it would be a ring rather than a tube and clamp it around a corset-lace to perform precisely the same office as the tube, though less effectually, would have every element of the second claim. Untwisting was prevented in the old devices by clamping a split tube around the end of the cord or by winding it with wire or twine. The patentee accomplished the same result-untwisting-by substituting an open ring for the tube or wire of the old devices. It was a mere workshop expedient that might have occurred to anyone. It did not involve invention. An entirely different proposition is, however, presented by the first claim. It is for the described method of connecting two parts of a rope, or two ropes, by clamping the same with one or more open metallic rings under extreme pressure. There is nothing suggested in the prior art that anticipates this claim. Certainly the court cannot say that it was not new in 1878. The court may take judicial notice of the old methods of looping and splicing ropes by winding and interweaving the strands and if the statement of the patent be true that the parts when damped as described "cannot separate or have any endwise draw" it is manifest that the patented method is an upon the old meth.ods. It is arglled that the claim is V9id as covering merely the function of a clamping mac-hine, but this proposition is not so obvious as to induce the, court to hold the claim bad on demurrer. The court cannot .say that anything existed prior to July, 1878, which would .anticipate or, defeat this claim., The proof may. show that ropes
looped or spliced by the rings' of the patent possess elements ot Iltrength and durability unknown before.' It is enough that the trial may result in a decree' for the complainant. As the bill states a cause of action it foIlQWS that the demurrer must be overruled, with leave to the defendant to answer within 20 days.
PATENTS FOR INVENTIONS-DAMAGES.
CO. T. WOLLENSAK.
(Circuit Court, N. D. IllinoIs. July 1, 1895.)
'In'8 suit for the infringement of a patent a judgment was entered by consent for $1 damages and $350 costs, the taxable costs being only $88. Helll, that. payme,nt of this judgment did not release the defendant from liability for future Infringement, since that did not amount to payment of aotual damages, the expenses of suit being always more than the tax-
In Equity.. Suit by the Electric Gas-Lighting Company against John F. Wollensak. .
,Tames n:.RaymondandEdward P.Fayson, for complainant. Banning, Banning & Sheridan, for defendant. GROSSOUP, District Judge (orally). The bill in this case charge!! the defendant with infringement of· letters patent No. 225,071, issued to Henry F. Packard, March 2, 1880, for an "improvement in electric gas-lighting devices." The defendant was a user of the devices as vendee of Henry A. Oleverly, or the Cleverly Electric Works of Philadelphia. The defendant alleges that, after the sale of the detices to him; he fully settled with the complainant the matter of infringement, whereby' the defendant has been released from any obligation to further answer the complainant's claims. It appears that, in January,1888, it bill was filed against Oleverly, by the complainant, in the circuitconrt for the Ea,stern district of Pennsylvania, charging him with the infringement of the patents in suit, upon which a preliminary. injunction was granted, and other proceedings had, and in which a final decree was entered on the 19th of April, 1892, by consent of the parties. The decree in question was meant to establish ,the validity of· complainant's patents, all question thereto being waiV'Eldby the defendant, and concluded as follows:
"That the complainants recover of defendant nominal damages, In the 8um of $1, without reference to a master, and that the defendant pay all costs, to be taxed by In the sum of $350."
It is admitted'that this sum has been paid by Oleverly, a receipt having been to him by the complainant, which provides, however, that this payment does not dischal'ge said Cleverly, or any other person, from any I further liability arising from infringement of the letters patenfinquestion, but that the complainant agrees not to fur· ther prosecute C1e'Verlyfor any infringement to the date thereof. The supreme court, in Birdsell v. Shaliol, 112 U. S. 485, 5 Sup. Ot. 244, have held that· a satisfaction of judgment, by the maker or ven-