OpenJurist

868

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87 FEDERAL REPORTER.

rumors that the designed "giving up hand. ling" the Budweiser of the com,plainant It reads:
"Permit us to say that thus far we, haven't any such intention. 0)1 the contrary. we ;purpose to sell your J;lndweiser bottled beer so long as there is but a little prl,)tlt in It. You have certaInly been misinformed on this point."

Following this, the defendant, proceeded to its new brew of so-caned ":Budweiser," with which)t entereQthe same market so held for,·and through the compm,inant, with bottles and labels in obvious departure from those previously used for its own production, and in which, there were then marked points of similitude to those of complainant, although since .discarded. ,And the attempted explanations on behalf of the .defeudant as to the reasons for selecting this name tend to confirm, the view I have indicated, rather than an ingenuous choice, as argued on of defendant. 5. The answer of the defenllant distinctly "alleges that it applied said designation to beer, brewed according to the Budweiser process in order to designate the mflnner of brewing, said beer, and to show its quality"; but the testimony introduced on its behalf denies the fact of any such distinctive process; and explains that the reference in the answer was tp the general European process which prevails in Vienna, Berlin, Pilsell, and. elsewhere; being "a different anq nO,t 'l}pplicable to Budweis disprocess than that in tinctively, because, as stated by>¥r. Miller, there is nO "such thing Whereknown in the brewing worldl;ur fore the attempted q(;trQthful.ul!1e"of clear1Y fails. On the other hand, the denials of the existence ¢ such prof9u;uded upon ap.d are entitled to 'cess are Ill> theppsitivetestimony on. the other sic;1e.. As8uroing lk belief ··on its part that .there w.as no Budweiser process, ,tbe defendant ,committed .a wrpng, in tbe name, under the With the existing. as.: shown on behalf of the complf,linant, the confol'll;ls to it in fact, pOl' a:ttempts > COnformity Ilnd theqaPle. hi not truthfully, applied. In 1either view, the bill Jl),y.stbl'l . . . , ! ,The by defendant to ,t4a testimony ,intJ;'oduced by colJ1,.plainant in J,'ebutta,l does nQt to; be .well taken, if The other objections and decree will be. entered :for cODlplainantin accordanQewith this opinion.
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ROWE 'V. &f CO. (CirCUit Court, D. ConnecticlIt.:;, June'15, 1898.).
, 1.PATIllNTSUITS....DBMURRER,TO BILL.::

No. 936.

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On demurrer tOl\b\U fO,r waI,lt ()t ap,P.earlng on 1he fac,e of a ' pat,ent, U fs not the duty of the c6urt to investigate the prior art. '£' BAME":"VESfG;i ,FOR HORSESIJOJi:'CALi.: .' . '...,. , , The Rowe patent. No. 26,58f,' for a di!!slgn for a' horseshoe ca;lk,isnot, on its face, so manifestly laCKing ,In.IJivent.ion:as to 'be'declarlldinvl!Jid on demurrer to a bill for Infringement.

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PELZER V. GEISE.

869

This was a suit in equity by Allen H. Rowe against the Blodgett & Clapp Company for alleged infringement of a design patent for a horseshoe calk. W. E. Simonds, for complainant. L. P. N. Marvin, for defendant. TOWNSEND, District Judge. To this bill in equity for infringe· ment of patent No. 26,587, granted to complainant February 2, 1897, for a design for a horseshoe calk, defendant demurs on the ground that said design "is the product of mere mechanical skill, not amount· ing to a patentable invention." The defendant, in his brief, cites a number of patents, and asks court to take judicial notice thereof, and thereupon to hold that the configuration claimed in the patent in suit is lacking in originality and beauty. The court has no per· sonal knowledge as to these matters, and does not understand that, in a hearing on a demurrer, it is its duty to investigate the prior artAs a matter of fact, the writer supposed that the ordinary horseshoe calk was an integral part of the horseshoe, hammered to a point by a blacksmith. It is perhaps possible that evidence might be introduced to show that said design was patentable, as a "new and original shape or configuration of an article of manufacture." The demurrer is therefore overruled.
PELZER v. GEISE. SAME v. ACME GAS FIXTURE &.METAL CO. RAME T. BUCK. SAME v. HORN .& :BRANNEN MFG. CO.

(C!J;cult Court,E. D. Pennsylvania. Nos. 37-39, 41.

June 25,

PATENTS-PRELIMINARY I;NJUNCTION-EF:FECT OF PRIOR DECISioNS.

The circuit court lind the circuit court of appeals for the Third circuit h<:!ld that several claims of an original patent were Invalid. Thereafter the circuit court or appeals In the Seconq circuit, after duly considering such prior decision, sustained the validity ofa reissue of the patent. Held that, In a subsequent suit In the circuit court of the Third circuit on the reissue, the court, on motion for a preliminary Injunction, would the decisions in the Second circuit sustaining the reissue as controlling upon It.
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These were four suits instituted by complainant, Pelzer, against different defendants for alleged infringement of a patent for improvements in electrical fixtures. The causes were heard on motions for preliminary injunction. Rkhard N. Dyer, for <!omplainant. Hector T. Fenton, Theodore F. Jenkins, and Samuel Gustine Thompson, for respondents. DALLAS, Circuit Judge. The above·stated cases are suits upon reissued letters patent No. 11,478, granted March 12, 1893, to Luther Stieringer, for an improvement in electrical fixtures. The original (No. 259,235) was dated June 6, 1882, and was applied for March 15, 1882. A motion for a preliminary injunction has been made in each case. These motions were argued at the same time,