NEW YORK BUNG & BUSHING 00.
repealed, it follows that it was then "pending" within the meaning· of the repealing act of June 7, 1878, (20 St. at Large, 99,) and that proceedings thereafter in it are not affected by such repeal. The applicants present a petition alleging the same acts of bankruptcy charged-in the original petition and amendmentl and leave is given to file the same.
NOTE. See; also, in sn'pPol't of decision in foregoing case, He DUncan, 8 Ben. 365; Be Frisbee, 14; Blatchf. 185; Perin v. Peale, 17 B. U. 377; LfUJtrapes v. Blanc. 3 Woods, 134; Re Mendenhall, 9 B. R. 380; Re Rebmeister, 15 Blatchf. 467 ; 'Bump, Bankruptcy. (10th Ed.) 47-48, 468-469. and cases cited. That the number and amount is a jurisdictional fact, Bee Re Rosenftelds, 11 B. R. 86; Re BU1'ch, 10 .B. R. 150.-[REP.
(Oircuit Oourt,S. D. New York. September 29, 1881.)
1. REISSUE-Too BROAD-INVALID.
Where the original patent is for a particular form of wooden bushing in an iron one, a reissue for any form is broader than the original, and invalid.
2. LETTERS PATENT-BUSIDNGS ;FOR FAUCET-HOLES, Reissued letters patent No. 8,483, for an improvement in bushings for faucet-
holes, is invalid. .
In Equity. WyUis Hodges, for plaintiff. Preston Stevenson, for defendant. . WHEELER, D. J. This suit is brought upon letters patent No. 141,473, dated Aug'list 5, 1873, issued to Samuel R. Thompson for an improvement in bushings for faucet holes, and reissued November 12, 1878, in No. 8,483, to William C. McKean, George H. Jackson, assignees, and now ownBd by the plaintiff. and Jefferson Brown, The principal defences set up are that the original patent was void for want of· novelty; that the reissue is for an invention different fromthat described in the original; and that the defendant, in what he does. not infringe. The only anticipations necessary to be noticed areThe English patent to William Howland Taylor, dated August 6, 1864, and sealed February 3,1865, for, among other things, the employment in beer barrels of peg holes, smallest in the middle'of the stave, and conical both outward and inward; the patent of the United States to John Huegg, assignor to J. G. Marriott, No. 70,024, dated October 22, 1867, for a wooden bung,
screwed into an iron casing or bushing, having screw-threads on both its outer and inner circumference.. and screwed into the stave of beer barrels; the patent No. 111,352, dated January 31, 1871, issued to Josiah Kirby, for wooden bungs with a hole in the middle, for a veilt-tube, filled with a plug, both bung and plug being made with the grain of the wood running horizontally; and the patent No. 123,789, dated February 20, 1872, to Otto Netzan and John F. Heck, for an elastic bushing for faucets, tapering towards the interior of the barrel, both on its outer and inner circumferences, with a shoulder on the inside, at the inner end, to bear against the inner end of the faucet.
The original patent of Thompson was for a wooden bushing having the hole for the faucet smallest in the middle, and conical both outward and inward, screwed into another bushing or casing made of iron, with screw-threads, to be screwed into the barrel. The claims were forJhe bushing, constructed and arranged as described, and for the combination of the bushing and casing, constructed and arranged as described, for the purposes specified. The specification of the reissue states that "the invention consists, broadly, in a device composed of a rigid sleeve or casing to be inserted within the faucet hole, and provided with a yielding lining;" and the claims are for a compound bushing for faucet holes of barrels consisting of a rigid sleeve or casing, and a yielding lining, as set forth, and the combination of a casing and a lining having a double-levelled internal formation, as shown and described, and for the purpose set forth. The defendant sells beer in casks, having iron casings screwed into the staves, for the bung, like that in the Ruegg patent, and like that for the wooden bushing in the plaintiff's patent, with bungs having a hole nearly but not quite throngh them, in the center, filled with a plug to be driven in by a vent-tube, carrying with it the solid portion of the bung opposite, when the barrels are tapped, like the bungs described in patent No. 148,747, dated March 17,1874, and reissued in No. 5,937, dated June 30, 1874, to Rafael Pentlarge, for an improvement in bllngsfor casks. When these bungs are so tapped by the insertion of the vent-tube, the remaining portion' of the bung, with the iron casing about it, forms a compound bushing of wood within iron, for the vent-tube, similar to that described in the plaintiff's reissued patent for faucets; and the defendant sells the beer in casks provided with such bungs and casings, intending and expecting that the bungs will be so tapped with vent-tubes and used until the beer is withdrawn, and that then the barrels will be returned to be refilled and supplied with new.bungs and the process repeated. It is true, as has been argued for the defendant, that the doubleconical hole for the faucet is shown in the double-conical peg hole
NEW YORK BUNG & BUSHING CO. V. HOFFMAN.
in the patent of Taylor, and the rigid casing for the wooden bushing in the iron casing for the wooden bung in the patent of Ruegg, the simple wooden bushing of the reissue in the yielding bushing of the patent of Netzan and Heck, and the wooden bushing of a vent· tube driven through a bung in the patent of Kirby; but still, as argued for the plaintiff, no one of these shows all the elements of this invention as shown in either the original patent or the None of them 'had a yielding bushing like one made of woodin an iron outer bushing or casing, forming a compound bushing yielding to the faucet or vent-tube, and rigid and supporting to the barrel, as the plaintiff's bushing and casing is. It is also true, as has also been argued for 'the defendant, that the deferidaxit does not himself make or use, or vend' to others to be used, the whole patented invention of the plaintiff, so but that, if the whole stopped where he stops, there would be no infringement. Bnt it does not stop there. He furnishes the mea,ns which afterwards became, and intended they should hecome, the compound bushing described in the reissutid patent, and in that manner directly procured the infringement to be done, if any was done, by those tapping the bungs to draw the .beer; and he is himself liable, if anyone is, for that infringement. Wallace v. Holmes, 9 BIatchf. 65; Cotton Tie Supply Co. v. McCready, 17 BIatchf. 291. So the original patent was valid, f1,nd the reissued patent is infringed; and the turning question in the case is whether the original patent will support the reissue. The original patent described a wooden bushing inside an iron one, or a yielding one inside a rigid one, and if the description had been general, as this statement is, it would have covered what the reissue describes and claims broadly. Such, however, is not the case. The original describes the double-conical form of wooden or yielding bushing only, and this form is described to be of the very essence of that part of the invention, and of the combination of which the wooden bushing was an important part. Thompson was not the original inventor of bushings, nor of wooden bushings, nor of. iron bushings, for which any patent has been granted underlying all others \ of either class, so as to give a monopoly of them. He is subsequent to Taylor, Ruegg, and Kirby, and could only have a patent for what was distinguishable from their inventions, and his patent could be valid only for that. Railway Co. v. Sayles, 97 U. S. 554. The form of the wooden bushing was an important part of what so it, and when form is of the substance of an invention, it is not to be disregarded. Machine Co. v. Murphy, 97 U. S. 120. Thompson in-
venied a particular form of wooden bu'shing encased in an iron one, and took a patent for that, describing no other. The 'reissue is for any form of wooden bushing iIi an iron one;' that is, for an invention not described in the original. If he had discovered, as he now has, that other forms were useful, he might doubtless have had a patent covering them, or, if he had described them in his patent, had a valid reissue covering them; but he did not do either. Let there be a decree dismissing the bill, with costs.
CAREY and others.
(Oircuit Court, N. D. lllinoi8.
In Chancery. Merriam et Whipple, for complainant. Wood et Cunningham and West et Bond, for defendants. BLODGlllTT, D. J. rrhis is a bill for infringement of patent No. 170,809, granted to Nelson J. Blatherwick, the complainant, under date of December 7,1875, for an improvement in horseshoes, and reaching back by caveat to October 21, 1874. 'rhe object of the invention is declared in the specifications to be the construction of a shoe to prevent horses from interfering, and the end is said to be obtained.. By making the shoe broader and fuller upon the inside than upon the outside, enlarging it at the toe and upon the inside, thus increasing the support for the horse at that point, the effect of which is that in traveling this point is the last to leave the ground, and the tend('nr.y is to throw the ankle of the horse outward and away from the opposite h!g, instead of inward and towards it, and when the foot leaves the ground it follows this position of the. ankle, and is thrown away frOID rather than towards tlHJ ol\pqsite leg. When the ankle is in this position the opposite hoof can pass without interfering."
The drawing (figure 1) shows carried forward so as to projept
inside fore quarter of the shoe· the wall of the hoof to such an