V. BELKE &. WAGNER CO.
The other patent in suit, No. 393;507, which must be regarded as the later one issued, clearly contains nothing patentable not covered by the earlier one, and is void. Let there be a decree for the complainant, under rule 21, sustaining its suit on both claims of patent No. 393,506, and adjudging patent No. 393,507 void, with costs for com· plainant.
A. B. DICK CO. v. BELKE & WAGNER CO. (Circuit Court, N. D. Illinois. July 3, 1897.)
PATENTS-INVENTIONS-IMPROVEMENTS IN INKS.
The Fuerth patent, No. 437,588, which, by the use of llnseed oil, vaseline, and the essential coloring matter, produces an Ink rendered limpid by friction, and avoiding the tendency to adhesiveness characteristic of ordinary printer's ink, and adapting It to the needs of stencil printing, discloses a new discovery, and a valuable advance in the art of printing.
Where the analysis of an alleged infringing Ink shows the presence of the constituents entering Into the patented combination, and the defendants fail to deny on oath the use of such constituents, the analysis be taken as correct, and as proof of infringement.
This was a suit in equity by the A. B. Dick Company against the Belke & Wagner Company for the alleged infringement of a patent for an improvement in inks. Dyer & Driscoll and Poole & Brown, for complainant. C. C. Bulkley and N. H. Hanchett, for defendant. GROSSCUP, District Judge. The bill is to restrain infring-ement of letters patent No. 437,588, granted to the Redding Ink & Duplicator Company, as assignee of William C. Fuerth, September 30th, for improvement in inks. The defendant denies infringement, and also contests the validity of the patent. The purpose of the patentee was to produce an ink adaptable to the needs of stencil printing. Such an ink must necessarily be different, in some respects, from the ordinary printer's ink, and especially in view of the new stencil sheet, which is composed of more delicately constructed paper. Fuerth points this out in the following language:
"Printer's ink, properly speaking, is a viscid and very tacky mass, and, when applied, for printing purposes, for a printing roller over a stencil sheet composed of delicately waxed paper, it would naturally tend to tear it, and the ink in a pure state was of no utility. Consequently, in the old state of the art, it was necessary to the production of even a few impressions to thin the printing ink with an excess of linseed oil, castor oil, turpentine, and the like."
And Professor Morton concurs with this in substantially the same language. The introduction of these solvents, however, was calculated to make the ink too fluid to be available for use in the usual manner of stencil printing. The patent in question produces an ink which, appearing tdthe printer in a state of jelly-like consistency, is reno dered limpid by friction, and avoids the tendency to adhesiveness
86 FEDERAL REPORTBlL
characteriBticof ordinary printer'sirik. In theBe it Beems to bea genuine and valuable advance in the art. Printer's ink for a long time has been made from the products ot petroleum! linseed oil, fatty oils, vegetable oils, and other products, according to diffeItent .formulas.. The patent in suit employs linseed oil, together with vaseline, a product of petroleum, with the essential coloring matter, and is not; in this respect. generally speaking, very different from the old printer's ink. But, while vaseline is a product of petroleum, it fs,likewise, in many 'of its characteristics, different from the other products of petrOleum, an,d, when combined with linsEled oB and the other coloring matter, as pointed out in the patent in suit, presents an ink, as a finished entirety"very different from the old printer's ink, and different in just thoserespects'that make, the one adaptable to stencil printing. and the otherunadaptable. 'J;.'b.iSCOllstitutes a of printing, just its its elements, or new discovery in the substance hitherto unrelated a portion of them, were derived to printing ink. In my opinion the patent is valid. . The analysis of defendants' ink by the complainant's experts shows the presence of vaseline and the other constituents entering into 'the complainant's combination. This te'gtimony mighfbemuch less con· elusive if the defendants, who are alive ahd filed their answer, had denied underQath the use of 8uc4 CQllJ!ltituents. r.J;helrfailure,to meet oomplainant'sanalysis by mein no donbt.that the analysis is substantially correct. The usnal decree for an .illjunction ,&I\d accounting may be entered.
THAMES &: MERSEY MARINE INS. CO.. Limited. O'CONNELL.' , (Circuit Court ot Appeals, CircuIt. !felJruary. 14. 11$1:11$.)
A marine Insurance policy warrl/-nted a schQoner not to use certaIn ports or places. 'fhe schooner left San l"ranclsco bound for Suislaw River, a prohIbited place, and,ln'tempestuous weather, cam", to a buoy near the entrance to the river, was:. driven about, and anchored a mile trom the entrance, where the chain ,broke, and the schooner was driven ashore, and wrecked. Held, that when the schooner came 'up to the buoy, With the intention of enterIng the: river, and afterwards anchored one mile trom the entrance, it was using places"prOhlbited by the policy, and the -Insurance company was not liable tor the loss. Gilbert, CircuIt Judge, dIssentIng.
Appeal from the District Court of the United States for t.he Northern District of California. Page & .for appellant. Andros &. Frank, for appellees. Before GILBERT and ROSS,Circuit Judges, and HAWLEY, Dis' trict ,
1 Rehearing denied.