11 F. 728 -

728

FEDERAL REPORTER.

The prior state of the art was such that the field of invention here was quite circumscribed, and if the first claim of the plaintiffs' patent is to be sustained at all, it must be confined strictly to an earthenware saucepan possessing all the characteristics therein specified. As, therefore, the bottom of the defendant's saucepan is not of the same specific form as that of the plaintiffs, there is no infringement. Matthews v. Boston Machine Co. 21 O. G. 1350. Let a degree be drawn dismissing the plaintiffs' bill, with costs.

AMERICAN BALLAST LOG Co. v. COTTER.O

(OirCUIt Court, E. D. Pennsylvania.

January 30, 1882.)

1. PATENT-UNIFORMITY 011' DECISIOl'(-EFFECT OF DECREE IN ANOTHER CmcUIT.
   

Where suit is brought in a circuit court upon a patent, the validity of which has been sustained by judgments of other circuit courts, the respect due to such decisions, and the importance of consistency and uniformitv of decision in courts of co-ordinate jurisdiction where the same subject-mat'er lainvolved, require the court to adopt such' judgments.

2.

SAME-IMPROVEMENT IN BALLASTING VESSELS.

Patent No. 126,938, for improvement in method of ballasting vessels, sustained, on the grounds that its patentability had been established by the judg. ment of other circuit courts, and that the evidence did not show prior USe.

Hearing on Pleadings and Proofs. Bill in equity to restrain infringl,3ment of patent No. 125;938, for improvement in method of ballasting vessels in port. The answer denied the patentability of the invention and alleged prior use. It appeared that complainants had brought suit upon their patent in other circuits, and that the patentability of the invention covered by their patent had been there sustained. J. Warren Coulston and Henry Baldwin, Jr., for complainants. Thomas J. Diehl, for respondent. BUTLER, D. J. Very little need be said in disposing of this case. Two only of the several grounds of defence set up in the answer were pressed on the argument-First, want of patentability and, second, anticipation. The first of points was passed upon, and decided in favor of the patent, by the circuit court of the eastern district of New York,
.Reported by Frank P. Prichard, Esq., of the Philadelphia bar.

DOUBLEDAY

v.

BEATTY.

729

in the suit of Dema1,tini et al. v. Abramovic et al., in 1879, and again by the circuit court for the district of Maryland, in a suit by the plaintiffs hore aGainst Barnes and Gatto. The respect due to these judgments, and the importance of consistency and uniformity of decision in courts of co-ordinate jurisdiction, where the same subjectmatter is involved, require this court to adopt the judgments referred to. The second question alone, therefore, is open to consideration. A large amount of testimony bearing upon this was taken and is produced, by each of the parties. A written analysis of tbis testimony no useful purpose. It is sufficient to say that while' would the general statements of the defendant's witnesses, on examination in chief, considered alone, would be fully sufficient to overcome the presumption of novelty arising out of the patent, they are so shaken by the cross-examination in some instances, and' generally by rebutting testimony produced by the plaintiffs, that they cannot justly be accorded such weight. While it is true that the plaintiffs' testimony, }?rincipally, is negative in character, the circumstances are such that it is little, if any, less valuable than the direct testimony at the other side. Considering the occupations and experiences of the plaintiffs' witnesses, it seems virtually impossible that the prior use alleged could have existed without their knowledge. For the reasons stated a decree will be entered for the plaintiffs. McKENNAN, C. J., concurred.
See Hammerschlag v. Garrett, 9 FED.

REP.

43; American Ballast Log 00.

v. Barnest Id. 465.

DOUBLEDAY

v.

BEATTY.

(Circuit Court, W. D. Pennsylvania. May 9,1882.)

1.

PATENTS FOR INVENTIOKS-PUIOR USE-A.NTICIPATION.

It is not sufficient to raise a doubt as to the novelty of the plaintiff's patent. It must be affirmatively proved to be old by and satisfactory

proof; but where the evidence is fully up to the standard, especially in view of the long and unexplained acquiescence of the patentee and his assignee in the geDeral and notorious use of the patented device, and that for a period of 12 years it had been habitually infringed, without objection on their part, in the absence of any rational explanation, and where a number of witnesses unimpeached testified to its prior use, the defence of anticipation is established.