,'YOSHER'V. JOYCE. '
557
as being 'used. Mr. Archibald Mitchell was apparently the most intelligent expert, and the best informed as to complainant's patent, of those called. He says that the housings for defendant's mill were constructed on the same general principle--the same general d:esign-as complainant's patent, i. e., in separate and distinct pieces; On cross-examination he was unable to describe the parts and combination used in the defendant's mill. The certified copy of the files of the patent-office in the matter of complainant's patent shows that the original application ofcomplainant contained ac1aim for "a housing frame for mills, made substantially as herein shown and described,consisting of the bed.:.piece and housing btackets, made in separate parts; to operate as set forth," and that this claim was rejected as anticipated by certain English patents. The only infringement proved in this case is of said rejected· A decree will be entered dismissing complainant's bill, with costs.
: ,i,I,.
MOSHER '11. JOYCE
and others.
(Oilrcuit OOU'1't, S. D. Ohio. "June 2, 1887.)
1.
PATENTS FOR
LIFTING-JACKS.
Letters patent Nos. 168,663 and 172,471, of date',resp,e,ctively; October!,1. 1875, and January 18, 1876, to Samuel E. Mosher. "fqr improvllments in leve;r lifting-jacks," sustained, and held infringed by the "Joyce jack," No. 29, (except as to the "trip attachment" attached thereto,) and not infringed by the "Joyce jack," No.8. . , ' ,
2. SAME. '
Claim No.1 ofletterspatentNo.172,471, of dateJanuarl1B,1876, toSamuel E. Mosher, for "an improvement in lever lifting-jacks,' substitutes for ,the single lever, engaging the pawl-block in a:recess, (as in letters patent No. 168,663, of date October 11, 1875, to said Mosher,) a "double" lever, engaging the pawl, block at its outer sides. Held, (1) that the" double" lev;er constituted a useful improvement in it the means of llttaining greater strength and security, the pIvots being thereby brought 'as olose '8.S desired to the weight sustained; and (2) that the invention WIlS not anttcipated by anything found in No. 168,663, or other prior lifting-jackllnventions; and (3) that the double-lever device of the JnYQe lifting-jack wall a mere mechanical equivalent of the improvement. (On rehearing.) ,'
In Equity. Bill for injunction. '. ' Suit for infringement of two letters p'atent granted to complainant upon lever lifting-jacks, as follows: (1) No.'168,663, dated October 11, 1875, as to the following claim: "The' block, D,provided teeth that catch simultaneously in those of bar, A, and pivotd' to the lever, E, as and for the purpose specified." Also (2) No. 172,471, dated January 18, 1876, as to the following claim: "In a lifting-jack, the toothed lifting-block, pivoted to sockets of a double lever,. swinging on', an oscillating fulcrum, to engage and clear readily the teeth of the lifting-bar, as required, substantially, for ,the pUl'posedescdbed."
058
FEDERAL BJllPORTER.
The structure shown by the first of these p!ttents was. a lifting..jack with vertical 'rack-bar,· moving in a containing frame or by means of a pawl-block, pivoted to the' end of a hand-lever, fulcrum.ed, in .pivotal hangers swung from. the upper portion of the stand at sides." The second patent exhibitedl a similar stl'llct1.lre, but in which the end of the hand, .lever, of pivoting to the pawl-block in a recess of the block opening to the rear, was bifurcated around the pawlblock; and engaged with laterally projecting studs upon the block. The lever was divided longitudinally, t<> facilitate attachment to the pawlblock; butitsparts bolted together·!orJ;llled a single rigid lever when :in use. : The object aethe latterimpl'Ovement was to obtain the increased strength., of a solid block and a shorter leverage than WitS possible' the former construction., . . Defendants' jack Exhibit No. 29 wl!.siqentical in all respects, except that the leve» wRscast solid,-with OPell sockets at of its bifurcated arms to receive the lateral projections of the pawl-block. The ends of the hook-sockets were bent over the projections by hammering, when in place. Defendants' jack--No. 8 (Joyce patent No. 210,946, December 17, 1878) had a lever pivoted directly to the frame or stand, with a crank projection connected by a link with a "knuckle-joint" system of levers carryinglhe;pawl.block.' ' The "special f llJ1 ption" relied ';Ipon, as distinguishing the Mosher jack from the preceding art, Was the 'rigid immobiliiy'of the teeth of the to those of.the rack-bar when lifting a load. In .preceding jacks no pawl-block pivoted to the lever wa.s employed, but the end the lever",asenlaiged into a, segment-shaped head, witl?- a ot', t<>otJ;!.edperiph¢ry" tPr' teeth of which engaged successively with the rack-bar as the handle of the lever was qe},lre/:lsed, producing a and a grinding ;ffiovement that soon wore and broke .' ..The defense relied upon the state of the artshownin the following pl1tents:, . No: . ,7,'820,' Jas.. Leffel, lifting-jack, . 1850 .,j '97,631,! R. Green, cotton-press, 1869 .",. 88,896, N. Chapman, cotton and hay press, 1869 ·,l' "'106;417,' W. M. Smith, " " 1870 """"115,126, . W;M. Smith, " .. 1871 co 160,]43, nerinett & Randier, cotton-press,' 1875 co 164,323, L. O'Hara, jack, 1875 _.. ,And upouexpert testimony of JobpW. Hill/ showi'ngwant of novelty 'ip view of theal't. . . ' . ' "· " . ; 't.M. Hosed. fot complainant. :"; Wood &
. ,JA.'CK$ON"J.\ This suitis brought to restrain theiufringement of let,ters patent ",for improvements in ile.ver·liftingdacks," to the complainant,,'beatiingdateOctober 11, 1875, and January 18, 1876,num'bered 168,668 and 172',471 , respectively. The defendants rely upon the defehsEislofwant ofnovelty, no invention, and non-infringement.
'MOSHER V. JOYCE.
859
The legal principles applicable to the questions presented in the case are well settled" indeed, that of the' authorities bearing upon them would be an unprofitable consumption of time; in detail the various patents renor is it deemed necessary to lied on by defendants to show that plaintiff's letters patent were pated. This, together with the defenses of uno inventioh and fringement," been carefully examined and considered, it is deemed sufficient-,to announce the conclusions which the court has reached in the premises. These conclusions are: First, that the defenses of want of novelty and no invention are not . 'r. '. ,', sustained, and the plaintiff's patents are valid. plaintiff's said patents are by the J'oyce jack; Exhibit No. 29, (except asJo the "trip attachnwnt'?attached thereto.) Third, that plaintiff's said patents are not inft'ingedby the Joyce . .' :, "." jack, Exhibit,No. 8 . . There will a,ccordingly be a decree in favor of the complainant for an injunction and account against the defendants as to the J oyee jack, Ex:' hibit No. 29. But as to the Joyce jack,Exhibit No. 8 1 the bill wUl be ia no infringeinent. " , dismissed on' the ground that Upon motion of the defehdants, a reargument was had as to No. 172,471, upon the claim of non-infringement by reason of the differ.ehce inooDstruction above described, and the court (July 11, 1887) filed the following opinion: ; ': .'j ,',
JACKSON, J; In this case, application of defendants to recall the decree sustainingtheivalidity of claim 1 of the second patent No. 172,471, issued to the plaintiff January 18,1876, and to grant a rehearing as to:that patent, isde[iwd. After a re-examination' of tlae case on the first claim of said patent 112,471, the court is of the opinion that the double lever therein embodied constitutes a useful and patentable improvement in lifting-jacks not anticipated by anything found 'w: patent No. 168,663,or other prior lifting-jack inventions. In the first Mosher'patent the lever passes into the pawl-block, which, is attended with many disadvantages which the patent No. 172,471, with its double lever, embracing the on either side"was .designed to (and does in fact) obviate. :F'or the single:lever engaging the pawl-block in a (as in patent 168,663,) said patent No. 172,471 substitutes a "double" lever, engllging the pawl-block at its outer siaes. By this meaDS greater strength and .1lecurityis attained; the pivots being thus as desiredtb the weight.sustained. The double-lever device of the Joyce lifting-jack is nothing more than a mechanical equivalent of plaintiff's improvement. It perforn1sprooisely the same, function, in substantially the sam.eway, copiedfl1om.the. plaintiff's design; and, was' The application to rehear is denied, and the decree as heretoforereqdered will stand. .
660 KEYES
FEDERAL REPORTER.
and others ,
'U. 'PUEBLO SMELTING
&
REFINING
Co.
(Oirc'UitOo'Urtl jft
n. Oolorado.
May '18, 1887.)
.The ordInary rules of equity jurisprudence apply in patent cases as in others; lind a temporary prelimliiary injunction to' restrain the infringement of a ; ·pateJ;lt will TIotoe granted where the complainant has .been guilty of laches, by resting for nine years without bringing suit against one who has been using the invention for that period, l1pd where the defendant is also abundantly { able to the plaintilffor any damage which he :niay show that he has sustained, , . 9. flAME----;-4!NSW:ER,-FoRMER ADJUDIOATIONAGAINST PATENT. ! . ' . SucJijemporary pl'e1iminaryinjunction may likewise be refused where the answedd the bill puts in issue the question of novelty, and where there has · i9-thll Same circuit against the validity of the patent, which adjudication,'ltlthough abiding a new trial o.rdered by the supreme court by rllason of certain errors therein. was not set ,aside by reason 6f any . deuision·of 'that court concerning. the validity olthe patent. 3.S4ME..,.j.TBIAL: BY JURY. .
FORbrVEN'l'IoN.....PRELIMINARY INJUNCTION-PLAINTIFF'S LAqlES·
:,' *n aJlplipation for a trialby jury, made by the defendant in such suit under the act of 'dongress providing 'therefor, is in the discre,tion of the court; and, if It appears that the questIOns Involved can be determmed more properly by a chancellor, the application fOl; a jury will be refused.
'
patent No.·121,385 were granted November 28,1881, to Winan improvement in furnaces for Bmeltinglead apd field ·other 91;es, ,iAn action at brought in the circuit court of the United States for the district of Colorado, againstonc Grant et al., to recover damages for an alleged infringement of this patent. The defendimtsl'elied prificipallyon the. want of patentable novelty in the in· vention;and' it was shown that an invention similar in character had ,been described in a publication printed inBerlin in 1831-32, called "System del' Metallurgie, " by one Dr. J. B. Karsten. Upon the trial 'of the cause the oircuit juqge direCted the jury to find"a verdict for the defendants t which was accprdingly done, and judgment entered thereon. Uphn writ of error to the supi'eme court, this direction was held to be errors on the ground that the questions involved should have been submitted/to the jury, with properinstrnctions as to the law, and the case wlisreversed, and remanded with .directions to grant a new trial. 118 .U.:S.2a, 6 Sup. Ct. Rep. 974. Before such new trial took place the .:plaintiffi filed. his bill against the present defendants, to restrain infringe,ment of; the, same patent, and moved for a preliminary injunction. The :defendants interposed the sanie,defense as had been setup in said ac,tidn at' Jaw,; It further appeared that the defendants had been using .thekind of smelter in question. fOJ; nine years before the bill was filed, and that: they.1\'ere abundantly rich to compensate the plaintiff for any dam,age. which he might show that he had sustained. The defendants' made a counter-motion that the matter in issue be referred to a jury under the ·provisioni;l of the act of congress. R. E. Foot, for complainant. O. E. Gast and Thos. Macon, for defendant.