dental to the process of shaping the cages. Neither does this effect appear to have been observed before the date of the plaintiff's invention, if it existed. T};1is would not show that Fisher, or those who saw his work, invented, or ha!l prior knowledge of, this thing patented by the plaintiff, before he invented it. Rev. St. § 4920; Andrews v. Garman, 13 Blatchf. 307. These conclusions make it unnecessary to consider the eff12ct oftha decision in the interferl3nceproceedings, even as to the invention of Grebner, set up in his application which set on foot these proceed. ings. The defendants' mode. of placing the bends in the upright wires lengthwise in the hollow of the cross-band may be an improve. ment upon the plaintiff's Imode, but, if it iS,in employing that improvement they make use of the plaintiff's patented invention without right, although that improvement is patented. The plaintiff's second patent also contains a claim for a feed cup, in connection with the vertical wires of the cage" and it is insisted fqr the defendants that this invention is independent of the other, and .the patent fQr both is therefore void. But these inventions are connected together by being appropriate for use in the same cage for the common purpose of. making a bird cage, and under these circumstances the joinder of both in one patent does not render the pateIlt· ,void. Emerson v. Hogg, 2 Blatchf. 1; 110gg v. Emerson, 6 .Hpw. 437. v,. Let a decree be entered' for an injunction and an account according to the prayer of the bill, with costs.
NATIONAL MIXED PAINT Co.
(Oircuit Court, S. D. New York.
October 29, 1881.)
. Reissues are void if broader than the original pate,nt. letterS patent No. 7,031, dated April 4, 1876, ani! gra.nted to .Da,IUoD, R,Averill, assignee, for an improvement inpaints, the Claim being for amb:ed liq\lid paint composed of certain ingredients, "put llP in tight vessels or cans," is broader than the original patent, which made no claim to anJthing to'contaln the paint, and void. '
,In,Eq1l. ity. Joh1J:J;l. Ben'fl:et,t ,a.nd George Harding, for plaintiff. Edmund Wetmore, for defendants.
AVERILL CHEMICAL l?AINT CO. V.NATIONAL MIXED PAINT CO.
WHEELER,' J. This suit isJounded upon· reIssued leiters patent No. 1,031, dated April 4, 1876, granted to Damon R. Averi11;assignor, for an improvement in paints.. The claim is for '\'a mixed liquid' paint composed of oxide of zinc or other pigments, oil, turpentine, or benzine, water, and one or more emulsating agents, put up in tight vessels or cans." The original patent was No. 66,778, dated July 16, 1861, for an improved paint compound, particularly described by ingredients and quantities like that in the reissue, but with lime-water and silicate of soda, which were emulsating agents, but not stated·to be such, specified as parts of the combination and compound. The claim was for "a paint composed of the ingredients herein named; and prepared and compounded substantially in the manner specified; There was no allusion in the patent to anything to contain the paint;. Liquid mixed paints, produced by the use of emulsating agents,. wer.e known and used before Averill's discovery, and paints had beencori·; tained in cans and other tight vessels before that time; but no paint had been made by the use of his precise combination and ingredients before. On the application for a reissue the patentee made proof that, prior to his application for the original patent, he, hooput up his paint in cans and other tight packages, and noticed: its advantages , for being put up in that way, which 'appears to'havebeen satisfactdry to the commissioner that this mode of packing was apart ofth'ti original invention, and upon thalproof the'reissue appears to have been granted. The' defendants do not use, thecombhiittion or earn; pound described in the original patent. The principle that the reissue is 'not supported by the original, :and is there-fore void; that the patentee was not the originalandfirflt inventofof the invention described in the reissue ; aildthat if the reissue can be upheld at all, the defendantS"do not infringe any part fOr 'which it is valid. The original patent was valid enough; appl:ti'ently, for the ticular kind of paint deseribedin it. The reissue"ifit'is'fort&at kind of paint only, packed in tight vessels, may be valid, for it would merely narrow the scope of the claim upon the same invention from that kind of paint everywhere to that kind of paint only when so packed. But the reissue is not limited to that particular kind of paint. It extends to all forms made from the same ingredients, other than the emulsating agents specified, by the use of any emulsating agents. This expands the original patent, not only beyond the scope of the claim upon the invention described, but beyond the scope of that invention. The whole invention there described was of a particular kind of liquid mixed paint. The invention described in tho
reissue is of all kinds of liquid mixed paint packed in tight vessels. The invention of packing in vessels is not at all described, or even alluded to, in the original patent. So the question is presented whether the commissioner of patents is authorized to grant a reissue of a patent for an invention, in addition to that shown in the original, upon proof, in the absence of any drawing or model showing the invention' in the original, that the addition was really a part of the same invention sought to be patented in the original. This question does not' now seem to be open. In Powder Co. v. Powder Works, 98 U. S. 126, the patents were fOl compositions or articles of manufacture like that here. That part of section 53 of the act of 1810, now section 4916 of the Revised utes, Il.uthorizing amendment of patents upon proof, in the absenc l' of any drawing or model, was relied upon and came under consideration. It was there held that this clause did not authorize the commissioner to grant a reissue for a different invention; or to determine that one invention was the same as another or different one; or that two inventions essentially distinct constituted but one. The question was left open as to whether that clause related to all patents, or only to patents for machines, but no room was left for adding to the invention by proof. Under that decision this reissue cannot stand. If it could stand, the only invention covered by it of which Averill was the first discoverer would be packing this pajnt in tight vessels. · Such vessels impart no quality to the paint. They are no more useful to this kind of paint than to others, in proportion to the amount used. The paint, on account of its valuable qualities, has found its way into extensive use through the ordinary vehicles for paints, and Averill has doubless contributed largely to its success, but it has been done by business enterprise rather than patentable invention. What he is really the first inventor of the defendants have not taken. L3t there be a decree dismissing the bill of complaint, with costs.
llIERICAN BALLAST LOG CO.
AMERICAN BALLAST LOG Co. OF NEW YORK
(Oircuit Oourt, D. Maryland.
L LETTERS PATENT-FLoATING BALLAST
BARNES & GATTO.
December 3, 1881.)
POR VESSELS IN PORT.
Letters patent No. 126,938, issued May 21, 1872, to Demartini & Chertizza, for improved method of ballasting vessels in port by means of floating logs, to be attached to each side of the vessel, Mld, not infringed by the use of the device for which letters patent No.232.435 were issued September 21. 1880, to Barnes & Gatto, consisting of a with two compartments atlixed to one aide of the vessel only.
In Equity·. Seba8tian Brown and I. Nevitte Steele, for complainant. W. Pinkney Whyte and John H. Barnes, for defei.Idants. Before BOND and MORRIS, JJ. By THE COURT. This bill of complaint is filed for an alleged In· fringement of patent No. 126,938, granted May 21, 1872, to Demartini & Chertizza, for improvement in methods of ballasting vessels in port, which has been assigned to the complainant. The patentees' specifications ·Iltate that.. Under the [then] present practice, when a vessel arrives in port and dIscharges her cargo, ballast must be immediately taken in to prevent careening and consequent injury to herself and other craft, as well as to facilitate repairs and other operations incident to preparation for a new voyage. To avoid the loss of time 3nd expense attending this course, we employ ballast logs, connected with the vessel by ropes or chains, that lie along-side thereof, and yet float in the water, as hereinafter described."
The specification then describes the logs as simple pieces of timber, or several smaller sticks boIted to each other, made proportioned to the size and weight of the vessel, and, if necessary, weighted with lead or iron. "The .logs are in all cases designed to float or be self-sustaining·in the water, and thus made capable of being towed from place to place or vessel to vessel. They are attached to a vessel by ropes or chains, fastened to the logs and passing over the deck, or around any suitable part of the frame-work, or otherwise secured, as found practicable or convenient. The logs are not intended to hold the vessel down in the water, but merely to act as counter or balance weights when sbe attempts to keel over from any cause, either when being towed or lying along-side a wharf; and it is evident. the chains on one side will be taut only when those on the other are slack, and 'IYics versa,-the tendency being to raise the log upon the rising side out of the water. The weight of the log will always prevent this being done, and consequently the will be held in an upright position." v.9.no.7-30