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BURGER v. LUCAS.

(Circuit Court, S. D. New York.

November 24, 1902.)

1. Patents—Infringement—Paper Decorations.

The Burger patent, No. 603,619, for a paper decoration, construed, and held not infringed, on motion for a preliminary injunction.

In Equity. Suit for infringement of letters patent No. 603,619, for a paper decoration, granted to Rudolf Burger May 10, 1898. On motion for preliminary injunction.

Herman Lindheimer, for the motion-

James C. Chapin, opposed.

LACOMBE, Circuit Judge.

The validity of the patent is not disputed, the only question being whether or not the device which defendant makes infringes the device of the claim. The point of difference on which defendant relies is that his sheets of tissue paper are pasted together only at edge positions, none of them being pasted in the center, whereas each of the five claims of the patent mentions a pasting in the center. In the absence of any‘testimony as to the prior state of the art, it would seem that this center pasting is an essential of the patent. Nowhere in the specification is any other method referred to than that of pasting one layer in the corners, and the next in the center. The language of some of the claims is not entirely clear, but, on the record as it now stands, it is doubtful whether they should be so construed as to cover decorations where there is no pasting at the center, but only alternately at opposite corners. They can be fairly and reasonably construed so as to cover only the device mentioned in the specification. To illustrate: The first claim uses the language, “layers * * * pasted on each other, once in the center, and once at the edge, or near the edge, or at edge positions.” This may fairly mean alternately in the center and either (1) at the edge (i. e., the whole edge, a continuous line of contact), or (2) near the edge, also a continuous line, or (3) at sep-' arate and scattered points on the edge. The use of the plural in the phrase “at edge positions” does not necessarily import a pasting alternately at one edge position, and then at an opposite one.

The motion for preliminary injunction is denied.

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