94 FEDERAL REPORTER.
participating in it as directars. A part of the para.graph set out in the assignment refers to the first theory, and is favorable to the plaintiff. A pact may refer to the second theory, though this is not altogether" clear. .As the exeception was taken to the paragraph as a whole, it was not sufficiently specific, and cannot be sustained. The remaining assignments of error were not urged in argument. The following judgment is entered in each of these cases: The judgment of the circuit court is reversed, the. verdict set aside, and the case remitted to that court for further proceedings in accordance with law; the plaintiff in error to recover of the defendants in error its costs in this court. "·BROWN, District Judge, agrees with sO much of the opmlOn as relates to interrogatories, but does not concur with the views of a majority of the court as to the liability of directors, nor in the conclusion.
CROSBY STEAM GAGE & VALVE CO. v. ASHTON VALVE 00.
(Circuit Oourt of Appeals, First Circuit. May 4, 1899.) No. 264.
The Lohbiller patent, No. 49tl,058, for Improvements in safety valves, Is void for want of invention.
Appeal from the Circuit Court of the United States for the District of Massachusetts. This was a suit in equity by the Crosby Steam Gage & Valve Company against the Ashton Valve Company for alleged infringement of a patent for improvements in safety valves. The circuit court adjudged that the patent was valid, and had been infringed by defendant, and entered a decree for complainant. From this decree, the defendant has appealed. Ralph W. Foster (Joshua H. Millett, on the brief), for appellant. James E. Maynadier and William Maynadier, for appellee. Before COLT and PUTNAM, Circuit Judges, and WEBB, District Judge. PUTNAM, Vircuit Judge. This is a suit against an alleged infringer by the holder of letters patent, issued April 25, lS93, to Anton Lohbiller, for improvements in safety valves. Only one claim is in issue (the third), as follows:
"The combination In a safety valve and muffler of a valve seat, valve, and a steam-regulating device encircling the valve seat, and extending upward within and through the top of the valve case, and above the muffler. the regulating device may be operated without removing the muffler or any part of the valve case, all substantial1;y as specified."
CROSBY STEAM GAGE & VALVE CO. V. ASHTON VALVE CO.
The case was heard in the circuit court, on the merits, on bill, answer, and proofs, and an interlocutory decree was entered for a master and an injunction, although the learned judge who sat in that court expressed doubt as to the validity of the patent. The only novelty covered by the claim in issue is the extension upward within and through the top of the valve clli;e, and above the mutner, of means of controlling from the outside the regulating device. This extension, as shown in the drawings and specification, is by means of two straight rods passing vertically from the regulating ring. through the valve ca8ing and the mutner, to points above the mutner and exterior to it. It is claimed that this was the fir8t time in which such an appears in connection with a pop valve having a muffler. There is, perhaps, no doubt on the question of mere novel ty; also, there is no doubt on the question of utility, as the device permits the regulating of the valve without removing the muffler, as stuted in the claim. The difficulty is on the question of invention. It is admitted that in the earlier art such extensions had been made through the casings of valves which had no mufflers. The thought involvea in the mere idea of having some contrivance by which any interior work can be controlled through a rod extending exteriorlJ, thus avoiding the neces8ity of taking apart, is, of course, a primary one in all the arts; so that the suggestion of making such a conneetion in this eas(> clearly involved no invention. This is illustrated by a patent taken out by the same patentee, dated November 17, 1891, for a safety valve without a mutner, in the specification of which, after describing a rod, called there a "pin," which serves the same purpose as the rods in the case at bar, and which pin did not extend through the upper part of the safety-valve case, he said:
"It is obvious tbat the .pin might be extended upward, and have its wl'eneh block secured at the top of the highest part of the casing if desired."
He added that great advantage would be derived therefrom when the valve is used on locomotive boilers. Moreover, there is nothing called to our attention, or which we have found, which shows that there was any difficulty in making the extension, or any ingenuity involved in doing it. ·We therefore necessarily conclude that no inventive idea i8 covered by the claim in issue; and, ina,smllch as thp decree of the court below, although an interlocutory one, followed a hearing of the merits on bill, answer, and proofs, and the whole record is before us, we are able to di8pose finally of the case, in 'accordance with what is now the settled rule of practice. The decree of the court below is reversed, and the case is remanded to that court, with directions to dismiss the bill with costs; and the C08ts of appeal are awarded to the appellant.
GIMBEL et al.
", (CIl'!!utt Court, E.,D. t>ennsylvanla: May 28,1899.)'
, UnderJ;tev.St.§ 4900, If articles sold by complainant are properly "!'atentt'd,'; either on the littlcles tbemselvesor the ioclosing package, this Is general notice to the public, sO that oile Who makes or se'lls StIch-.rticles is liable for Infringement; though be may In fact have been ignorant of the patent.
This was!ft'su;it in equity by William James Hogg against Gimbel of a patent for a design for carpets. Bros. for Southgate & Southgate, for complainant. John G.J for defendants. District Judge. 'rhis case was heard upon bill and answer. The complainant, who is a manufacturer of carpets, is the owner of design patent No. 25,907, and has made and sold large quantities of ,carpeting embodying such design. The patent embraces two olaims,-one for a carpet body, and the other for a carpet border; and; as the answer admits, both claims have been infringed by ,the, defendants. They ma;de sales of a body and a complainant's design, but border that, were exact copies of they seek to avoid liability by denying actual knowledge:df the patent at the time the sales were made. , This deniaI6f knowledge in fact must be accepted. as true,'-notestimony having been taken, -and the question fOr decision, therefore, is whether other facts denied by the answer, are sufficient t() aYerred in the visit the defendants with of constructive knowledge. These facts are, as averred hi paragraph 4 of the bill, that the complainant gave "sufficient notice to the public that the [design] is patented by affixing thereon the word 'Patented,' together with the date and year the patent was granted, or by affixing to it, or the package wherein said carpeting was inclosed, a label containing a like notice,and has complied in all respects with the statute in such case made and provided." Upon these facts, I think that the complainant has fulfilled the obligation imposed upon him by section 4900 of the Revised Statutes. The point was decided in Dunlap v. Schofield, 152 U. 8. 248, 14 Sup. Ct. 577, in which the supreme court declare that this section makes it the duty of every paten.tee or his assignee, and of all persons vending any patented article tor or under them, to give the public sufficient notice that it is patented, by putting the word "Patented"upon it, Or upon the package inclosing it, and then go -onto say:
"The clear meaning of this section Is tbat the patentee, or hll'l ,assignee, if he makes or sells the article patented, cannot recover damages against the infringers of the patent, unless be bas given notice of his right, either to the whole public by markIng hIs article 'Patented,' or to the particular defendants by informing them of his patent and of their Infringement of It. One of these two thing8-marklng the articles, or notice to the Infringers-is made by the statute a prerequisite to the patentee's right to recover damages against them. Each is an atlil'u:Utlv. fact, and Is something to be done by him."