93 FEDERAL REPORTER.
th '!maklng o't: forthtnn'anufacture of fat If the llclds,were'acl:Jidefltaliyl lU,iCl :t1nwitfingly produced, whilst the operRtors' ,were m: pUfsuit, of other and:dlp'ereut results" atten. tiQtl; ,l t s,.even Pll ing l>;uQ'Wp :WPl/.t ,,;a/l done or been nl\ Jt would. Pe absurd. to s,a.y tllat thl"; 'was ail do Tilghman'S
theris. the same
. . 'H"
v.,¥anufacturing 00.,,106 U. S. IG6, ,!715,.17i3,l Sup. Ct. 198,; tJ)eQlougb, notwithstap,ding the prior The coq"t said: ." i:, , : . ·
· ." ·.,; alDounts i'eaUy. to this .oIlly:t!lat if. that burne!; is used ;now in. a way it.:Wlrl,ch 'it was uElvel,' desigued to be useo" and it is not sl:wwn}o have ever been used before 01ough's Invention, it may made to furnish a supplementary of gas:'. · · Any' further raising of the tube wllS accidental, and not apart of the!' law of the structure. ·· · · The structure' was not. designed, for the same· purpose as Cloughrll, no person look· ingatit;9r using it understand that it was to be. used in the way Clo,ugh's: is used, and ,it· is not. shown to l:!ave been really used and operated inthll-t ''ray.'" ..,. I " . . .. I
.f;' i ':,
' , !.
In Co" 55
i'; l .
ReductiQIl 00. v. 3Q7, the pourt saiq;
"Suppose" it to be a fR<lt that·ill process lllumJOR. was dissolved 1j:l,cthebaW< aqode,an(1 was electrolyzed as In the Hall process, It was a IHere accident of, which De Ville made no note, and we maY rea'sonabiy Infef, he did not observe. 'Accidents of this character cannot be 'l'el'lM on as' anticipations' a pllltented process, when· the operator ddes 'not recognize the means by wbich U,le' ;acciqentai reIllld, not thereafwrconscioulillY adopt such meaullas a process fpl;' ' reaching the r,esult." . , ',' " ':' :' ;\' , : , ,
lJpOJlicareful consideration" we opinion that the Francillon patents do not anticipate the: Schultz ·. pa1:ents, and that the decision of the lcircuitcourt of appeals for the Tbirdcircuitinthe Zahn Case was correct, and should be followed by this court·· ' Decree for complainant.
Ul\lTED STATES PLAYING-CAltD CO. v. SPALDING et aI.
(Circuit Court,S. D. New Ybrk. February 28; 1899.)
Where the question. of the violation by :l. defendant of an injunction Issued in a suit for hifrlngement of a patent depends on whether or not a new article sold by defendant since the granting of the Injunction Is an infringement Of, complainant's patent, which is an illtricate question, Ilependent on structure, and requiring a comparison Of the arti"le with others, and a consideration of other patents, the court will not undertake to determine.lt on a. motiOll fOJ: an attachment, but, no intentional violation being claimed, will deny the motion, and leave the complainant to his remedy by a new bilI.
III :Jj:quity. On motion for l1:ttachment for violation of injunction.
Arthur v.Briesen, for the motion. Fred. L. Chappel, WHEELER, in the opinion heretofore filed (92 Fed. 368) upon the motion for an attachment herein,
UNITED STATES PLAYING-CARD CO. V. SPALDING.
that Spalding & Bros. appear to have respected the injunction, was founded upon that of plaintiff's counsel at the argument, which was understood to mean that they had not done anything that was now complained of. Attention has since been called to the answering affidavit of their manager, which states that since the injunction !hling Bros. & Everard have sold to them "a tray known as the 'New Kalamazoo Tray,' which this deponent is informed and believed was manufactured under a patent antedating the Bisler patent, here in suit, and was therefore obviously not included or contemplated in the decree of the court, or in the above-named injunction, as an in· fringement." This tray is the one complained of, and a mere denial of the motion would leave the decision to look like an adjudication that it is not an infringement, which would not be correct; for, in the view taken, that would be immaterial, and no conclusion was reached upon it. That prior patent was the Butler patent, and, in view of that statement now noticed in the affidavit, that structure becomes material, and the question arising upon it has been further examined. The Butler patent was for an open tray in the form of a cross, into the arms of which the hands of cards were to be pushed from the interior between guides, and to be held down there by elastic bands around the arms above the cards. This Kalamazoo tray is open, and in the form of a cross, and in appearance somewhat like the Butler patent; but it has a block in the interior, forming, with the sides, cribs for holding the hands of cards, which are pushed from the exterior under bars which hold them down; and it has the features of the Bisler patent, and of the structure which has been held to be an infringement, except that it is open, and the bars holA the hands down inplace, instead of the COver. So, it does riot appear to be made according to the Butler patent, and it may be an infringement of the Bisler patent, and its sale a violation of the injunction, in which Spalding & Bros. and TIlling Bros. & Everard had part. But the Bisler patent is for improvements upon the Butler trays and others, and this new tray cannot be definitely determined to he an infringement without comparing it, in the light of evidence, with that and still other patents and structures. This: cannot be safely and properly done on this motion, which is in its nature crim· inal,and in result sought punitive, requiring full proof of a violation that is obvious to the senses, without intricate comparison or study The position of Spalding & Bros. here, who are acquitted by counsel .of the plaintiff of any intentional, although not of actual, violation of the injunction, shows that this question of violation is intricate, and cannot be determined upon merely obvious appearances. As now considered, such an alleged infringement should be left to a new bill. . . The conclusion reached is that the motion for an attachment must be denied, as before, except that it should be without .prejudice, instead of as an adjudication in respect to infringement by the sale of this now new tray. '''Without prejudice" to be added to denial of motion.
93 FEOEiRAL REPORTER.
TROMPS.ONv. SECOND AVE; TRACTION CO.'et al.
(Circuit Court of Appeals, Third. Circuit. May No. 32, .March Term. A patent for a roller-coasting structure, claiming. tracks "running parallel with each' other, and· having the starting and .t!\rminal stations at the same elevation," is infringed by a similar structure in which the terminal station is only from six inches to a foot lower than the starting statiqn..
2. SAME-J'IlECHAXICAL EQUIV ALEl'\TS· COASTERS. .
.Ina roller-coasting structure, having parallel tracks. the use of turntables or pivoted switch tracks, instead of fixed switch tracks, does not avoid infringement, since these devices are well-known equivalents.
The Thompson patent, NI). 310,900, for an improved roller-coasting structure, construed, and held valid, and infringed as to claim 1.
Appeal·from the Circuit Court of the United States for the Western District of Pennsylvania. This was· a suit in 'equity by La Marcus A. ThompBon against the Second Avenue Traction Company and James A. Griffiths for alleged infringement of a patent for a roller-coasting structure. The circuit cOl1rtfouild that there was no infringement, and entered a decree dismissing the bill (89 Fed. 321), from which decree the complainant has appealed. FrankS.Busser, for appellant. HepryE. 'Everding, for appellees. Before ACHESON and DALLAS, Circuit Judges, and McPHERSON, District Judge. AOHESON, Circuit Judge. The bill in this case charges the defendants,the Second Avenue Traction Company and James A. Grifletters patent No. 310,966, granted 011 fiths, with, January 20,il885, to the complainant, La MarcusA. Thompson. The invention of this patent relates to an improved roller-coasting structure. The specification describes, and the drawings illustrate, a structure in which there are two parallel undulating tracks, extending from an elevated starting station at one end of the structure to a terminal station having the same elevation at the, other end of the structure, each end of the, structure being with a switch track, by means of which the car may be transferred from one track to the other, the object being to have each car make. a round trip, "going out on one track and returning on the other." The specification, referring to the attached drawings, atateS: "The starth!g end, D, of the outgoing track, B, is of a: gradual decline to
b, where the·track takes a shor,t 'ri!'ie, which, is nqt steep enough to materially clieck the momentum gained by the car from the start. I!'rom this point the track takes quite a' sudden or steep descent ·to the lowest part, d, and then a gradual and regular rise to the terminal point. The momentum or acceleration acquired on the down grade will carry the cal' nearly to the top of the ascending end, means being providell to continue the car to the top when its collected force has been expended. The car is then transferred to