THE COLLINS CO.
against the breech-plate carrying the rear ends of the barrels. The hooks being thus in position against the breech-plate, the revolution of the barrels brings the shell last discharged within the grasp of the hooks, they forcing themselves between the flange of the cartrid,ge and breech, thereby loosening the shell to that extent. When the tappet described, in the course of its revolution, again operates rearwardly the extractor bar, the hooks on the end of the latter withdraw the shell completely from the barrel, and a tumbler hung to the frame and operated by a projection on the extractor bar dischai'ges the shell from the grasp of the hooks, allowing it to fall to the ground. In the Gatling gun the extractor hook is attached to the plunger, which forms the breech closer and snaps over the flange of th8 cartridge during the operation 'the cartridge into the rear of the barrel. The extractor hook retains of its position during the firing and for some time subsequently, until the plunger commences its rearward motion, carrying backward with it the hook and the shell in its grasp. The shell is either freed by its own action and falls. to the ground, or is ejected by a plate with which it comes in contact, and, tipped out of the grasp of the hook, falls to the ground."
There is no infringement, and the bill is dismissed.
THE Cor,IJINS CO.
(Circuit Court, D.
COES and others.
"rf!S8f!ch usetts. May 21, 1881.)
5,294-hIPItOVEMEN'r IN MONKEY WRENCHES-PETITION TO VACATE DECREE AND REOPEN CAUSE.
A petition to vacate decree sustaining re-issued letters patent No. 5,294, granted February 25, 1873, to Lucius Jordan and Leander E. Smith, for improvement in monkey wrenches, and to allow the defendant to set up by a supplemental answer that Jordan was the sole inventor of the improvement, refused.
PETITION TO REOPEN CAUSE-SUPPLE)IENTAL ANSWER-NEWLy-DrscOVETtED DEFENCE.
Upon a petition for leave to reopen a cause, and to file a supplemental answer setting up a newly-discovered defence, after final hearing and decree, the evidence must be clearly snch as would have availed the defendants if introduced on tinal hearing. Where, in such a case, the defence sought to be introduced was that a joint patent was the sole invention of one of its patentees, the affidavit of such patentee that he was the sole inventor, and of others that he claimed to them to be the sole inventor, held, not to be such proof as would warrant the court in reopening the cause and admitting such defence.
In Equity. B. F. Thurston and W. E. Simonds, for complainants. Geo. L. Robert, and Thomas H. Dodge, for defendants. LOWELL, C. J. An interlocutory decree was entered in this cause,
some months since, that certain of the claims of the patent sued on, which was re-issue No. 5,294 of patent No. 50,364, granted to Lucius
Jordan and Leander E. Smith, and by them sold and assigned to the plaintiffs, were valid, and that one of them had been mfringed. The improvement consisted in adding to the well.known "Coes" wrench a nut under the step-plate, by which much of the strain upon the wooden handle of the wrench WItS diverted to the main iron bar. This was new and useful. The accounting has not been had, and, of course, no final decree has been rendered. The defendants now petition for leave to open the case and file an additional answer setting up the newly-discovered fact, as they believe it to be, that Lucius Jordan, one of the patentees, was the sole inventor of the improvement. Jordan & Smith were partners in'the manufacture of wrenches, and Smith advanced money for expenses at the patent-office, and they agreed to be joint owners of the patent; but the defendants aver that thi!l was merely a business arrangehave been made by Jordan ment, and that the alone, accompanied by an assignment of the invention to himself and Smith. The law is so, if the facts are as they are assumed to be. Jordan's affidavit that he was the sole inventor is filed, and other affiants testify that they have heard Jordan speak of himself as the inventor, and never heard Smith make any such pretension; that the talk of the shop, at the time the patent was obtained, was that Jordan made the invention. Jordan swore, on his application forthe patent, that both were inventors, and he has sold the joint patent and received his share of the money. Smith is dead. The transaction is not recent. Under these circumstances, if the defendants' affidavits alone and uncontradicted were the evideuce at a final hearing, they could hardly avail to persuade me that the invention was wholly Jordan's. But they are met not only by proof that Jordan and Smith have repeatedly spoken of the invention as joint, but by affirmative evidence that Smith made a wrench before Jordan began to experiment, in which the step-plate was sustained by a set-screw at the place where the pdent puts the nut. After this, the partners talked over the matter and consulted, and the joint application was made. Upon these affidavits the defendants contend that Smith was the sole inventor, which is equally useful for their purpose. I suppose that the wrench which Smith made would be an infringement of the patent; but that does not prove that it anticipated the patent. The nut is decidedly better for the purpose of the improvement than the set-screw. If the Smith wrench had been made by a third person, and had proved to be useful. it would have limited
3 FED. HEP. 225.
the scope of the patent; and it would have the same effect if invented by Smith himself. But, upon the affidavits, it was merely an experiment on the way to the completed invention, and has no effect at all. In this state of the case there is but this argument for opening the case: that another action is pending by the plaintiffs against different defendants, in which these matters may be investigated; and if it should turn oat, upon the hearing of that case, that the patent is void, it would work a great hardship upon these defendants to be obliged to pay damages and to be enjoined, when all the rest of the world could use the invention. The plaintiff corporation meets this point by saying, in its printed brief, that it is willing to defer taking the final decree in this cause until time has been given to bring that cause to a hearing. Even without such a stipulation, I do not find that enough doubt is thrown by the affidavits upon the soundness of the original decree to require me to open it. But, with that understanding, no possible ground is left for such action. Leave to open the cause refused.
Buerk v. Imhauser, $Upraj De Florez v. Reynolds, 16 Blatchf. 408; Adair v. Thayer, 7 FED. REP. 920.
and another v.
(Circuit Court, 8. D. New York.
FOR TRANSPORTING EGG&--VALIDITy-!NFRmGE-
Re-Issued letters patent No. 8,091, granted February 19, 1878, to John L. and George W. Stevens, for cases for transporting eggs, held fJal'id imd infringed.
Complainant's device for transporting eggs, consisting in placing thin strips of the proper width edgewise, crossing each other, and halved together at proper distances, between horizontal thin partitions in a box, making layers of cells, (limited only by the height of the box,) preferably irrespectifJe of walls of the box, to hold each an egg, separate from all the others, secure against injury from without the box and from moving the box in transportation, lteld, not anticipated by traveling cases with compartment-trays for carrying samples and boxes for holding chalk-balls, ink, medicine, or perfumery bottles made with similar partition strips and having compartments in two layers separated by a horizontal partition.
In Equity. Andrew J. Todd, for orators. Samuel GreenbauJn and Everett P. Wheeler, for defendants.
WHEELER, D. J. This suit is brought upon letters patent re-issued No. 8,091, granted to the orators as assignees of the defendants John L. Stevens and George W. Stevens, dated February 19, 1878, for an improvement in cases for transporting eggs, for which original letters patent No. 62,378, dated February 26, 1867, were granted to the assignors. The defences are that the re-issue is for a different invention from that in the original patent; that the patentees wore not the original and first inventors of this improvement, because it waH known to and used by others than either of them before the invention by both or either of them, and because it was invented, if at ail by either, by John L. Stevens alone. The invention consists in placing thin strips of the proper width edgewise, crossing each other, and halved together at proper distances, between thin horizontal partitions in a box, making layers of cells to hold each an egg separate from all the others, secure against injury from without the box and from moving the box in transportation, and easy to be packed and unpacked. The walls of the box would form one side of the outer cells if the partitions and strips next parallel to them should be placed the size of a cell from them, but outer cells so formed are not safe for the eggs. In the original patent the specification and showed cases with outer cells so formed as if for use, while the reissue is for a case so made and shown, but for only the cells formed irrespective of the walls of the case to hold eggs. It is argued for the defendants with some force that this difference shows different inventions. The drawings of the original show a case with only two layers of cells, but they show many cells in each layer interior to those of which the sides of the case form one side, and the specification sets forth successive layers of such cells, to be limited only by height of the box. So there were clearly-shown cells and layers of cells formed irrespective of the walls of the case, as well as cells of which the walls formed a part, all of which were more or less safe for the eggs. The interior and most safe ones were a part, at least, of the invention patented, and the patent might, under the statute, well be re-issued and limited to that part. That there were traveling cctses, made for carrying samples, containing trays divided by similar partitions into several small compartments, and that boxes for holding chalk-balls, and others for holding perfumery bottles and medicine bottles, and others for holding small ink bottles, made wih similar partition strips, and having compartments in two layers, separated by a horizontal partition, before these patentees made this invention, is shown by the eviLle.lce beyond any fa,i1' question or dcubt;
hut that any box or case was made having more than two layers of cells, 80 that any of the cells had all their sides, irrespective of the walls of the box or case, or so that any of them were adapted to transporting eggs, as those patented are, before the invention, is not shown beyond fair doubt, as is required in order to defeat a patent. Those shown were adapted to small articles desired to be kept separate and disposed of singly, and not adapted to handling eggs into be disposed ofin dozens at a time. It is not claimed that any of them were actually used for the transportation of eggs, and that fact goes strongly to show that none were made which could be so used to advantage. The evidence upon which it is claimed that the invention was made by John L. Stevens alone consists wholly in parol proof of loose statements and admissions, which are 80 explained or denied that they fall far short of showing, by the measures of proof required'to defeat a patent, that the invention was known to and used by one before it was by both. There are some questions as to the relation between the defend· ants which may affect the accounting, but are not necessary to be decided now. Let there be a decree against the defendants Schroeder and Seavers that the patent is valid, and that they have infringed, and for an injunc. tion and an account against them, according to the prayer of the bill.
COBURN and others v. SCHROEDER and others.
(Circuit Court, 8. D. New York. 1. August 3, 1881.)
INTERLOCUTORY DECREE-"GAINS, !:;AVING8, AND ADvANTAGES"-C08T8.
An interlocutory decree directing an account of the gains, savings, and vantages due to the infringement of a patent, in addition to the projlts, and awarding costs, held, to be proper. 2. COSTS IN EQurry-How AWARDED. Costs generally, in equity, do not follow as a matter of right, as in proceed. ings at law, but are subject to the discretion of the court, and al'e awarded 8S part of the decree, or they caunot be recovered.
Andrew J. Todd, for orators. Samuel Greenbaum, for defendants.
WHEELER, D. J. Objection is made to the proposed decree in this case because an account is directed of the gains, profits, savings, and advantages of the infringement, instead of profits merely, and because costs are awarded, to be taxed, with execution to issue, by