FEDERAL REPORTER.
Church is now, through the medium of the new corporation, engaged, to the great injury of the complainant's business, in selling Anti. kalsomine, a compOl IDd almost exactly identical with Alabastine. The question to be determined is whether, keeping in view the past relations of these parties, the plea of non-infringement should now be accepted by the court. It is contended that one who sells a dry mixture of pulverized calcined gypsum and glue, even though he subsequently reduces it to a liquid condition by the addition of hot water first and cold water ,afterwards, does not practice the invention· . The defendant sella the gypsum and glue put up in packages, upon which are printed directions, to which it is unnecessary to refer in detail further than to say that, mutatis mutandis, they follow quite olosely the formula of the patent. The liquid thus produced, ready for uae upon the wall, is almost the exact oounterpartof that desoribedand claimed in the patent. With this product alone before him it would be a difficult task, even for an expert, to say how it was produced,whether the former or the latter .directions were followed. In selling a compound which he knows cannot be praotically applied without making the user a trespasser, the defendant, within the doctrine of the following authorities, renders himself an accessory to the infringement: Rumford Ghemical Wurks v. Hecker, 2 Ban. & A. 351, 363; Gotton-tie Go. v. Simmons, 106 U. S. 89, 94, 95; S. C. 1 Sup. Ct. Rep. 52; Tilghman v. Proctor, 102 U. S. 707, 728; Gqodyear v. Railroad Co., 2 Wall. Jr. 356, 359; Wallace v. Holmes, 9 Blatchf. 65; WoodYJard v. Morrison, 1 Holmes, 125; Bowker v. Dows, 3 Ban. & A. 518; Travers v. Beyer, 26 Fed. Rep. 450. Parties should not be permitted to evade the law by such prooeedings as these papers disclose; it is the clear duty of the court to arrest the wrong in its inception. The motion to dissolve the injunction is denied.
HILL V. BIDDLE SAME
and others.1 SMITH.
v.
«(Jt"rMl.it (Jo'U'T't. E. D. PennslllfJania.
April 80, 1888.)
1.
PATENTS FOR !NVENTTONB-NOVELTY-IMPROVED HOG-RINGS.
Letters patent 130,853 were granted to complainant for a triangular hogring. so constructed as to conform to the shape of the hog's snout, and remain stationary therein.. Held, that the invention possessed novelty, value, and utility, and that the patent was therefore valid. The utility of a machine, instrument, or contrivance, as shown by the general public demand for it, while not conclusive, is highly persuasive evidence of novelty and invention. and, in the absence of pretty conclusive evidence to the contrary, will generally exercise a controlling inlluenco. ·
I.
SAM.E-l)TILITY.
I
Reported by C. B. Taylor, Esq., of the Philadelphia bar.
HILL V. BIDDLE.
In Equity. Morgan wLewis, for complainant. D. Connolly, for defendants. BUTLER, J. The suit is for infringing the second claim of plaintiff's patent, No. 130,853, which reads as follows: "The triangular shaped ring, D, with the catch, d, or with points, 'H, or levels, sub· stantially as shown and described, and for the purpose set forth." The alleged infringement is fully proved. There is no difference between the ring manufactured and sold by the defendant and that described by the patent. The defense set up is twofold: First, that the patent is invalid, for the reasons that the ring was anticipated, that it involved no covery or invention, and that it is not useful; second, that the first claim of the patent is void, and the plaintiff has known it for years, and has, nevertheless, omitted to file a disclaimer as provided for by section 4922 of the Revised Statutes, and therefore cannot recover in equity. These defenses were urged with much earnestness and ability. We are not convinced, however, of the soundness of either of them. 'l'he plaintiff's conception was that a ring so constructed as to fit or conform to the hog's snout, or rooter, would be more comfortable to the hog, and more serviceable in restraining his disposition to root, than the ordinary rings employed at the time. The invention consisted in the construction of a ring embodying this conception,-a triangular ring that fits the shape of the snout, and keeps its place. While it may be said that this required but little change in the old ring, and was easily accomplished, Jet nobody had before accomplished it, or concei ved the idea and advantage, of making a ring of this form for such a purpose. That this conception, and the embodiment of it, was of great value cannot be doubted. 'fhe public at once recognized its advantages, and demanded it of the trade to such extent as shows a preference for it over all other rings in use. According to the evidence, about one-third of the rings sold by the trade are those of the plaintiff. The defendant, in effect, acknowledges that he manufactures this form of ring because of the great public demand for it. While it is true that the utility of a machine, instrument, or contrivance, as shown by the general public demand for it when made known, is not conclusive evidence of novelty and invention, it is nev. ertheless highly persuasive in that direction, and, in the absence of pretty conclusive evidence to the contrary, will generally exercise controlling influence. Smith v. Goodyear, 93 U. S. 486; Jii/mdact. uring Co. v. Haish, 4 Fed. Rep. 907; Eppinger v. Richey, 14 Blatchf. 307. I do not find such contrary evidence in this case. While there is here, as in most cases, room for debate, a careful examination has satisfied me fully that the court would not be justified by anything v.27F.no.7-36
Advertisement
