BAMMERSCHLAG MANUI!"a co.
'D. JUDD. l
August 20, 1886.) No.
PATENTS FOR INVENTIONS-HAMMERBCHLAG REISSUE MENT IN WAXING PAPER.
Notwithstanding the decisions sustaining the fifth claim of the Hammerschlag reissue 8,460, for improvement in waxing paper, (Ham1lU'fl'schlag v. Scamoni, 7 Fed. Rep. 584; Hammerschlag v. Garrett, 9 Fed. Rep. 43; Hammerschlag Manu/'g 00. v. Wood, 18 Fed. Rep. 175;) a preliminary injunction refused, the court having doubts on the question of mfringement. Although due weight is given to prior adjudications upon a patent, the question of infringement is still to be determined in each particular case as it arises.
2. SAME-PRIOR ADJUDICATIONS-INFRINGEMENT.
SAME-CONSTRUCTION OF HAMMERSCHLAG PATENT-INFRINGEMENT OF PROCESS.
The process described by Hammerschlag consists of several steps: Spreading the wax upon the surface; heating the paper from the opposite side, to spread and fuse the wax into the fabric of the paper; removing the surplus wax; and remelting and polishing the wax upon the paper. It not being shown that defendant's machine removed any of the surplus wax, or remelted and polished the wax upon the surface of the paper, infrmgement is not clear, and an injunction denied.
In Equity. Roscoe Conkling and Louis W. Frost, for complainant. Causten Browne, for defendant. COLT, J. Without questioning the soundness of the decisions in several circuits, including this, in favor of the fifth claim of the Hammerschlag patent, I cannot see my way olear, upon the papers before me, to grant a preliminary injunction in this case. Giving clue weight to all prior adjudications, and recognizing their scope, the question of infringement is still to be determined in each partioular case as it arises. Bearing in mind that the fifth claim of the patent is for a process, and giving it the broad construction adopted by Mr. Justice BLATCHFORD and Judge LOWELL, I am still not free from doubt on the question of infringement. The process described by Hammersohlag consists of several steps: Spreading the wax: upon the surface; heating tbe paper from the opposite side, to spread and fuse the wax into the fabric of the paper; removing the surplus wax; and remelting and polishing the wax upon the paper. The machine is thus described by Judge LOWELL:
"The wax is spread upon the paper by means of a heated cylinder, which revolves in a bath of melted paraffine; it then passed over a heated roller, which diffuses it equally; then over a scraper. which removes the surplus wax; and then over a polishing roller, and is wound upon a reel."
In the Judd machine the paper passes over two wicks, which draw up the heated wax from the tank. These wicks have the form of
by Charles C. Linthicum, Esq., of the Chicago bar.
segments of a circle, and they are composed of canton flannel, cover· ing a metal support; the flannel having a loose end,which hangs in the melted wax. Between the two wicks there is a heated roller or rod, over the surface of which the paper passes. Thedefendant contends that in the operation of his machine there is no melting and diffusing of the wax throughout the fabric of the pa· per, nor heating the paper from the opposite side to fuse the wax on the surface of the paper, nor removing of the surplus wax, nor reo melting and polishing the wax over the paper; in other words, that he does not use· the Hammerschlag process. He insists especially that in his machine the wax is never remelted or polished; that the paper takes its last portion of the wax at the end of the second wick, and after that merely cools. To prove that the heated roller does not diffuse the wax, he removed the first wick, so that the paper could take no wax until after the roller was passed, and the machine con· tinuedto make good wax paper. Further, he says that the p!Lper absorbs but little wax in the form of streaks from the first wick, and that it is when passing over the second wick that sufficient paraffine is absorbed to completely saturate the paper, and that, therefore, the roller does not diffuse the paraffine over the paper. The position of defendant is that his machine works by absorption only. On the other hand, the complainap.t contends that the Judd mao chine does embody substantially the different steps of the Hammer· schlag process; that by means of wicks a supply of melted wax is spread upon the surface of the paper; that the drawing ofthe paper beneath the roller, which is between the wicks, will necess(\.rily have a distributing effect; and that, by the movement of the paper over the convex surface of the wicks and the end of the second wick, the surplus wax is removed, and the wax poli8hed upon the paper. Upon careful consideration of all the evidence before me, I am not clea.r that defendant's machine is an infringement of the fifth claim of the Hammerschlag patent. Even assuming that the roller in the Judd machine operates to some extent to diffuse the wax, which the defendant denies, still I am not able to say that the plaintiff has shown that in the operation of the Judd machine there is any relIloving of the surplus wax, or any remelting and polishing the wax llpon which constitute the last two steps of the patented pr0gess... There are important differences, it appears to me, between the Judd machine and the other machines the courts have held inHammerschlag patent. The :motion for a preliminary injunction must be denied.
HERENDEEN 11. HORGAN.
and others v.
(Otrcuit Oowrt, D. Maaaachiuaetta. September 9, 1886.)
PATENTS FOR INVENTIONS-HARROWS.
Letters patent No. 120,195, of October 24.1871, to E. W. Herendeen, for an improvement in harrows, construed, and held anticipated by letters patent No. 82,451, of September 22,1868, to J. J. Thomas, for improvement in harrows.
In Equity. On motion for preliminary injunction. W. B. H. Dowse, for complainant. H. O. Bliss, for defendant.
CARPENTER, J. This is a bill to enJOIn the respondent from infringing letters patent No. 120,195, granted to E. W. Herendeen, October 24, 1871, for improvement in harrows. The respondent admits the infringement of the patent, but defends on the ground that invention is anticipated by that described in letters pa,tent No. $2,451, granted September 22, 1868, to J. J. Thomas, for iniprovement in harrows. I think the respondent is clearly right. In both patents the harrow-frame is composed of two or more rectangular structures hinged together in which the teeth are fastened,and in both the line of draught of the harrow is so arranged as to be parallel to neither of the sides of these rectangular structures. In the patent of the complainants the claim is for a harrow "with sn1all teeth inserted obliquely through the frame, substantially as and,for the,p'urposes set forth." The specification describes the teeth al?h.eingset "at an angle both longitudinally and laterally with the beam," so as to "lie inclined nearly or quite in the line of draught of the harrow," ,alld. so that "instead of pushing the lumps of soil to one si,de, they cut downward through them." I think it is evident from this description,as well as from the drawings, that the teeth areinsert.ed at an angle other than a right angle, and that they incline back",ard from the direction towards which the harrow is to be drawn. It is also evident, as it seems to me, that the teeth which are said t,o "lie in the line of draught" would be more accurately described as lying in the line of draught or in lines parallel thereto. I think this.is tIle ,construction of the patent. The claim in the Thomas patent is, for a harrow "having numerous inclined teeth pointing backward. an inclination as to cast off or slip over any stalks of weeds, or other refuse matter, substantially as described." In the spepification the teeth are described as "arranged at an inclined angle, pointing backward, so as to readily pass. over any rubbish and pass over the ground without tearing up young plants, but.pulverize the surface."
by Charles C. Linthicum; Esq., of the Chicago bar.