Volume 285 — Federal Reporter

Clayton, Judge. In bankruptcy. On claim by Sam Schillicci and others against Charles F. Willen, us trustee in bankruptcy for the Will V. Connell Company, Inc., for certain goods which the bankrupt contracted to sell to (the claimants before the bankruptcy. Decree for the claimants (278 Fed. 288), and the trustee appeals.

<p>Patents <§=324 (5)— Question of Infrátgemsict by new structure primarily for trial ccmt.</p> <p>After a Circuit Court o£ Appeals has affirmed a decree finding a patent valid and infringed, it will not on a subsequent appeal, arising out of the accounting, construe its decree for the purpose of determining whether or not a new structure, made by defendant and sought to he brought into the accounting, is within its scope.</p>

Suit in equity by the Leevale Coal Company and another against the International Organization, United Mine Workers of America, John L. Lewis, President, and others. Defendants appeal from the order granting a preliminary injunction.

<p>1. Patents <3=328 — 1,186,477, claims 2, 4, for process for hardening siccative costings, held valid.</p> <p>Tiie Grosvenor patent, No. 1,186,477, claims 2 and 4, for a process of drying or hardening siccative coatings, held valid against the objection that the description was too indefinite, and that the process had been anticipated.</p> <p>2. Patents <3=327 — Decision in another district oh samo evidence is of weight.</p> <p>Though the decision in another district sustaining the patent in suit is not binding, it is of weight under the rule of comity, if not wholly persuasive if the evidence is the same.</p> <p>' 3. Patents <3=53 — Prior ase musí show complete device.</p> <p>For a prior use to anticipate a patent, there must be proof beyond a reasonable doubt that the prior device was completed, and not left in an experimental or untried stage.</p> <p>4. Patents <3=69--Prior publication must enable persons skilled in the art to uradareiandl invention.</p> <p>To serve as an anticipation, a prior publication must embody a description of the thing patented in such full, clear, and exact terms as to enable any person skilled in the art or science to which it relates to understand it without aid from the patent.</p> <p>5. Patents <3=328 — 1,186,477, claims 2, 4, for hardening siccative coatings, IieldL infringed by one defendant, hut not by another.</p> <p>The Grosvenor patent, No. 1,186,477, claims 2 and 4, for a process for hardening siccative coatings, the novel element of which was the use of an excess of humidity with the heat, held infringed by one defendant, hut not contributorily infringed by the other by the sale of a kiln in which there was no provision for supplying excess humidity, though such provision had been added by the buyer.</p> <p>On Application for liehearing.</p> <p>6. Stipulations <3=14(3)— Stipulation held not to admit infringement.</p> <p>A stipulation that the supplemental bill bringing in a second defendant might be considered as amended specifically to charge each of the defendants with themselves using the apparatus described in the answer to the original bill does not admit that the second defendant had used the apparatus, where the answer of that defendant denied such use.</p>

Lewis, Judge. At law. Action by La Vera M. McNulty, by C. N. McNulty, her next friend, against the Atchison, Topeka & Santa Fe Railway Company. Judgment for plaintiff, and defendant brings error.

<p>L Patents ®=»328 — Rasssisa II4,¡89, claims 6, I (-¡5, fop autographic register, liáis! valse! asín! infrisagotl.</p> <p>The Krauth reissue patent. No. 14,189, elrims 6, 11-15, for autographic registers, the essential element of which was a pin or detent arranged to enter apertures in the several strips of paper to keep them in exact register, helé valid and infringed.</p> <p>2. Pníefiís @=n247.-=Aifs¡¡í¡OE8 of ssew iunotiom to comfotaation is not detestas against : pf (tv, ext. .</p> <p>Tiie addition to a patented combination of an additional function, not per Conned or claimed by the patented invention, is not a defense against the charge of infringement.</p> <p>3. Patents <g=»i4I — Additional Invention disclosed feist through inadvertence not efcieied, may fee covered fey ceiesve.</p> <p>If an inventor has produced and described in his specification two or mors inventions, which may be secured in one patent, but covers only one of them by his claims, his patent is inoperative as to the other invention, and, if his failure to claim that was due to inadvertence, a reissue may be granted. ,</p> <p>4. Patents <@=>144 — Commissioner’s decision in granting reissue not reviewed, unless error is manifest from record.</p> <p>The decision of the Commissioner of Patents, in granting a reissue, that the failure to claim an invention disclosed by the specification was due to his inadvertence or. mistake, will not be reviewed, unless the matter is manifest from the record.</p> <p>5. Patents @=>141 — Varying and enlarging in reissue specification description in original is not “new máíter.”</p> <p>It is not “new matter” in a specification, within the meaning of the provision of Rev. St. § 4916 (Comp. St. § 9461), for reissue patents, to explain in a reissue specification the operation of a device which in the original was only described, to state a new use of the invention shown in the original, or to vary and enlarge the description of anything inadequately described in the original.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, New Matter.]</p> <p>S. Patents @=>138(1) — Application for reissue within two years is ordinarily due diligence.</p> <p>Ordinarily, a patentee has two years after the issuance of the patent in which to apply for a reissue, before it will be presumed he has abandoned the unclaimed invention to the public, though special circumstances may lengthen the time within which he may apply, or may show abandonment within a shorter time.</p> <p>7. Patents @=>26(1) — invention cannot be defeated by selecting all elements from different prior patents.</p> <p>Invention of a combination cannot he defeated because it is possible to select from prior patents the several elements entering into the patented combination, and claim, after the combination is known, that it required only mechanical skill to combine them.</p> <p>On Reargument.</p> <p>S. Patents @=>148 — Reissue patentee is estopped to claim Infringement by party relying on apparent abandonment.</p> <p>Where a patentee under an original patent of narrow claims secures a reissue with broad claims, or where the original claims are broad and a reissue is secured with narrow claims, from which the broad claims have been omitted, and a second reissue then secured containing both the narrow and broad claims, the patentee is estopped from enforcing the broad claims against a defendant who has spent money and built up a business in the belief that the patentee had abandoned his broad claims to the public.</p> <p>S. Patents @=>i48 — Reissue patentee is not estopped to assert infringement of claims narrower than unafcandoned original claims.</p> <p>Where a patentee, whose patent contained broad claims, secures a reissue containing all of tbe broad claims of the original and other narrow claims, there is no abandonment which can estop him from enforcing his reissue patent against a defendant, who had built up a business between the original issue and the reissue.</p> <p>10. Patents @=>160 — CIaims and specifications construed in connection with drawings.</p> <p>If it is necessary that the particular shape of the pins which form one element of the patented invention be shown, the claims and specifications, which are silent as to such shape, must be construed in connection with the drawings which disclose the shape.</p> <p>II. Patents <3=>238 — Omission of old element hold not to defeat Infringement.</p> <p>Whore the function of a wilting table as a guide was part of the combination of an autographic register improvement, and was mentioned im the speeiüeaíiíin and expressly recited in a claim not in issue, but omitted from all other claims, and was'old in. the art, infringement is not avoided by the fact that defendant’s table does not perform the function.</p>

La Error to the District Court of the United States for the Southern District of Ohio; John E. Sater, Judge. Action at law by the Midland Tire & Rubber Company against the Salmon Falls Manufacturing Company, begun in the state court, by which funds of the'defendant within the state were attached.

<p>1. Appeal and error <@=>345(1) — Motion for new trial filed after term does not extend time for bringing error. •</p> <p>Even consent of the parties and acceptance by the court, and consideration of a motion filed after the judgment term, is ineffective to toll the beginning of the period for suing ont a writ of error, because the jurisdiction of the court over its judgments, unless carried over by action or motion within the term, ceases with the termination of the judgment term.</p> <p>2. Appeal and error <©=>345 (I) — Motion for new trial, filed without court’s knowledge, not aided by permitting second motion to be filed.</p> <p>A motion for a new trial filed at the judgment term, but of whieh^ the coiirt had no knowledge until after the term had ended, was not aided by the action of the court in permitting a second motion to be filed after the judgment term, where the court had no intention or purpose thereby to affect the earlier motion in any way.</p> <p>3. Now trial <©=>109 — Judicial Code held to give right to file motion.</p> <p>Judicial Code, § 269 (Comp. St. § 1246), giving District Courts power to grant new trials after jury trials for reasons for which they have usually been granted in courts of law, gives the right to the consideration and determination of a motion for a new trial, which necessarily includes the filing of the motion.</p> <p>4. Courts <©=>107 — Expressions in opinions to be interpreted in connection with circumstances and issues.</p> <p>Expressions in opinions must be interpreted in connection with the circumstances or facts and the issues concerning which they were uttered.</p> <p>5. Appeal and error <©=>345(1) — Filing of motion carries over judgment, if tisen or thereafter considered.</p> <p>The filing of a motion for a new trial during the judgment term is effective to carry the judgment over for writ of error purposes beyond the term, if the motion is, during the term or thereafter, considered or “entertained” by the trial court, especially as the statute (Judicial Code, § 269 (Comp. St. § 12461) gives the right of review by motion for new trial, and no action or inaction of the court can oust it of jurisdiction to entertain and determine the right so given.</p> <p>6. Courts <©=>81 — Written rules preferable.</p> <p>While a rule of court does not have to be written, but may be established by long-continued usage, written rules are to be preferred, because their commencement, action, and meaning are most conveniently determined.</p> <p>7. New trial <@=>109 — May by rule regulate procedure, but not deny right to move for a new trial.</p> <p>Trial courts may within certain limits enforce rules governing the filing of motions for new trial, but the rules must relate to procedural matters, and not go to the extent of clothing the court with power absolutely to deny the right, under reasonable regulations and requirements, to file such motion as permitted by statute (Judicial Code, § 269 [Comp. St. § 1246]).</p> <p>8. New trial <©=>109 — Rule as to leave of court held» void, if construed broadly, and not jurisdictional, if construed narrowly.</p> <p>If a rule of court requiring leave of court to file motion for new tria? be construed broadly, it would violate Judicial Code, § 269 (Comp. St. § 1246), authorizing the granting of new trials, and, if construed narrowly, and treated as a mere regulation of practice, its violation was a mere error of procedure, not affecting the court’s jurisdiction to grant the motion.</p> <p>9. Carriers <S=>230(8) — Erroneous to permit consideration of statute without sufficient evidence of violation.</p> <p>Where, in action against carrier for damages to cattle from delay in transportation, etc., the court charged that there was no sufficient evidence of a violation of the Twenty-Eight Hour Law (Comp. St. §§ 8651-8654), it was error to charge further that the jury could consider the requirements of such law in determining whether the carrier negligently kept the cattle in the cars for an undue length of time.</p>

<p>Master and servant <§=234(3) — Workman crossing moldcr’s pit held negligent.</p> <p>A hot pot engine fireman, who crossed over a molder’s pit to get a' drink while a easting was being made, and in recrossing jumped into the pit and stepped into molten iron in a mold, which he was unable to see because enveloped in steam from mud shot into the opening of the furnace, held guilty of contributory negligence in adopting a forbidden route under circumstances giving warning of danger.</p>

<p>In Error to the District Court of the United States for the District of New Jersey; Joseph U. Bodine, Judge.</p> <p>Action at law by Rose J. Pheasant, administratrix of Isaac M. Pheasant,. deceased, against the Director General of Railroads, the Philadelphia & Reading Railroad Company, and the Central Railroad Company of New Jersey. Judgment of nonsuit, and plaintiff brings error.</p>

Appeal -from the District Court of the United States for the Western District of Texas; William R. Smith, Judge. Suit by the Atchison, Topeka & Santa Eé Railway Company against Edmund R. Wells and others for injunction. Relief denied, and plaintiff appeals.

Action at law by Brown & Hackney, Inc., against the Rushville Furniture Company. Judgment for defendant on sustaining a demurrer to the complaint, and plaintiff brings error.

<p>Criminal prosecution by the United States against John Bonner and others. On motion to quash information.</p>

<p>In Equity. Suit by the Ozan Lumber Company and another against the Davis Sewing Machine Company and another. On application for leave to amend bill.</p>

<p>Criminal prosecution by the United States against Verner Lindquist and Harvey Goffee. On motions by defendants in arrest of judgment and for new trial.</p>

<p>Cross-Appeals from the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Suit in equity by the Dynamic Balancing Machine Company and others against Nicholas W. Akimoff and another for infringement of patents. From so much of the decree (279 Fed. 285), as held two of the claims of one patent valid and infringed, the defendants appeal, and from that portion of the decree which held other claims invalid, complainants appeal.</p>

<p>I. Patents <@=>227, 283(1) — No commercial use and want of knowledge no defense to infringement, but equity may intervene.</p> <p>As the fact that no commercial use has ever been made of a patent does not warrant its infringement, it may, especially where it is for an improvement on an existing structure, be infringed by one who has no actual knowledge of its existence, and who may build up a business in the patented device at his own expense, but in such case a court of equity, by application of equitable principles, may relieve the hardship so far as may be justly done.</p> <p>2: Patents <@=>283(1) — Liability of infringer of paper patent after notice.</p> <p>An innocent infringer of a paper patent, who continues his infringement after notice of the patent, does so at his peril, but a denial in good faith of the rights of the patentee, though not sustained, should subject him to no harsher consequences than the payment of damages and accounting for profits accruing after notice.</p> <p>3. Patents <@=>328 — 771,018, for improved oil-burning lamp, valid and infringed.</p> <p>The Jost patent, No. 771,018, for an improved oil-burning lamp, giving effect to the presumption arising from the finding of the Patent Office, held to disclose invention; also held infringed.</p>

<p>In Admiralty. Suit by the Brazilian Mercantile Company, Inc., against the steamship Charlton Hall.</p>

<p>In Admiralty. Libel by the Charles E. Hires Company against the Porto Rico International Corporation and another.</p>

<p>In Bankruptcy. In the matter of the estate of Kalnitzsky Bros. & Oppenheim, alleged bankrupts. On petition by F. U. Stearns & Co. to refer the cause to a special master to hear and report.</p> <p>This is a petition in bankruptcy to refer a cause to a special master, to hear and report, under the following circumstances:</p> <p>Between June 8 and November 7, 1921, the petitioners sold cotton goods to the alleged bankrupts; the sale being alleged to have been procured by fraud. On December 5, 1921, a petition in bankruptcy was filed against the alleged bankrupts and a receiver appointed, into whose possession came some of the goods so sold. The petitioners made claim against these goods during December, 1921, repudiating the sales, but did nothing further. On January 17, 1922, the composition was confirmed, discharging the alleged bankrupts, but the receiver did not surrender possession of the assets before January 28, 1922, when a rule nisi was obtained on the petition now in question.</p> <p>Before the composition was confirmed, one Spitzer made claim to some of-the same goods by virtue of a supposed chattel mortgage excluded by the alleged bankrupts before December 5, 1921. This claim has been referred to a special master and was pending when the rule nisi was granted. Spitzer is a party to this proceeding and now consents to withdraw his claim.</p> <p>The alleged bankrupts insist that with the confirmation of the composition this court lost all jurisdiction and that the petition now in suit will not lie for this reason. • The court originally dismissed the petition for this reason on the authority of In re Hollins, 229 Fed. 349, 143 O. O. A: 469, and 238 Fed. 787,151 C. O. A. 637. Later a reargument was had.</p>

Hateas corpus proceedings by the United States, on the relation of Shue Quey, against F. S. Pierce, as Chinese Inspector, to procure the admission of a Chinese person into the United States. Relator discharged from custody of the Inspector. The relator is a boy 15 years old, born in China and at the age of 5 lawfully adopted there by a citizen of the United States, a Chinaman born in this country, who has a wife and two blood children in China.

<p>In Error to the District Court of the United States for the Eastern-Division of the Northern District of Ohio; D. C. Westenhaver, Judge.</p> <p>Action at law by the Edward Maurer Company, Inc., against the Tubeless Tire Company. Judgment for defendant, and plaintiff brings-error.</p>

<p>At Raw. Action by the United States against Ransom E. Smith. On demurrer to declaration.</p>

<p>In Equity. Suit by S. H. Mitchell against William D. Stephens and others. On motions by defendants to dismiss bill.</p>

<p>In Equity. Suit by the Mineral Development Company against the Kentucky Coal Lands Company. On defendant’s motion' to dismiss.</p>

<p>1. Courts ¡s=»50 — Suit for penalties under Safety Appliance Act not limited to particular division of district.</p> <p>Under Safety Appliance Act, § 6 (Comp.St. § 8610); providing that penalties for violation may be recovered by suit in the District Court “having jurisdiction in the locality where such violation shall have been committed,” where a district has several divisions, jurisdiction of such suit is not limited to the division in which the violation was committed.</p> <p>2. Railroads <@=»229 — Penalty incurred by permitting hauling of defective car by contractor.</p> <p>Under Safety Appliance Act, § 6 (Comp. St. § 8610), making a railroad company- subject to penalty for “hauling or permitting to he hauled” on its line any defective car, it is no defense that the hauling of a defective car over a switch track of defendant was done by another company under an agreement by which it was paid by defendant so much per car for switching.</p>

<p>At Law. Action by Pierson & Co., Inc., against Iwai & Co., Limited. On motion by defendant to set aside verdict on its counterclaim.</p>

<p>1. War <§=>12 — Alien eannot enforce debt against funds in hands of Alien Property Custodian.</p> <p>Under Trading with the Enemy Act, § 9, subd. (e), as amended by Act June 5, 1920, providing that no debt shall be allowed under that section as to claimants other than citizens of the United States, unless it arose with reference to the property held by the Alien Property Custodian or the Treasurer of the United States, a creditor of an alien enemy whose seat on the Coffee Exchange had been sold by the Alien Property Custodian, cannot have the balance due in the Custodian’s hands applied to the payment of his claim, where there was no showing it was other than a simple contract debt, or that it related in any way to the seat on the exchange, since it was within the power of Congress to give the iireference to citizens it did by that act, and a construction giving such preference is not absurd.</p> <p>2. Constitutional law <§=>170 — Preventing enforcement of claim against funds in hands of Alien Property Custodian does not impair contract.</p> <p>The provision of Trading with the Enemy Act, § 9, subd. (e), as amended by Act June 5,1920, preventing the enforcement of claims in .favor of other aliens against property in the hands of the Alien Property Custodian, does not impair the obligation of the contract out of which those claims arose.</p> <p>3. Constitutional law <§=> 113 — Provision against impairing contract obligation does not extend to Congress.</p> <p>The prohibition of laws impairing the obligation of contracts is expressly directed at state action, and does not apply to Congress which may pass laws directly or indirectly impairing the obligation of contracts.</p>

<p>Internal revenue ©sail— Sales tax on goods sold for export held valid; “exportation.”</p> <p>A sale of baseball bats and balls by the manufacturer, which by direction of the purchaser marked the same for export and delivered them to an export carrier, taking- a receipt which it delivered to the purchaser, who paid for the goods and made the shipment, held not an “exportation” of the articles, within Const, art. 1, § 9, and subject to sale tax under Revenue Act October 3, 1917, § 600 (Comp. St. 1918, § 6309%a).</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Export — Exportation.]</p>

<p>At Daw. Action by Rosenberg Bros. & Co., Inc.,- against the Curtis Brown Company. On motion by defendant to quash service of summons.</p>

<p>In Error to the District Court of the United States for the Southern District of Ohio; John W. Peck, Judge. Action by the Lilley Building & Loan Company against Newton M. Miller, as Collector of Internal Revenues. Judgment of dismissal (280 Fed. 143), and plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge. Suit in equity by the Mineral Development Company against the Kentucky Coal Lands Company. From a decree dismissing the bill on motion of defendant (285 Fed. 761), plaintiff appeals.</p>