816
FEDERAL REPORTER.
ground. The allegation that the defendants werp ignorant of the existenceof the patent is, of course, no defense. The patent was a public record, ofwhich all persons were bound to take notice. As to the allegation that there was no sufficient proof of their infringement to sustain the decree against the Cunard Company, it is too late for a motion to open the decree On that ground. The defendants were served with process, they appeared, filed an answer, took part in the taking of testimony, and were duly notified l>f the final hearing. They have, therefore, not the least ground for alleging surprise, or that any advantage was taken of them. The general' principle in relation to the time al'lowed for making a motion to correct or amend a decree is that the party must exercise due diligence, and make the motion in reasonable time. 2 Smith, Ch. Pro 15, note; 2 Daniel, Ch. Pro (3d Amer. Ed.) 1040, 1041. A lapse of more than four years is not reasonable time. A much shorter period has been held to be unreasonable; ld. The petitioners may go before the master and show that they are not responsible for any profits or damages, and may, in that way, perhaps, get off with merely nominal damages; but it is too late to try the cause over again on the merits upon the issue that they are ,not Iiableat all. The prayer' of the last-named petition is denied.
PAT£NT CLOTH'ING Co", Limited,
v. GLov£Rand another.
(Ch'rcuit (Jourt, 8. D. N6'IJ) York. May 14, 1887.) ,PATENTS FOR INVENTIONS-REISSUE-ExTENSION OF ORIGINAL CLAIM.
.
Reissued. letters patent No.. 9,616, issued March 22. 1881, were 1I,'ranted to Redmond Gibbons for an improvement in pantaloonssnd similar garments. by bridging the crotch of the fly·front with a check-piece of cloth, or other inelastic, pliable material, thus adding to the durability of the garment by the stretch of the cloth or stitch at the crotch. Claim 2 was de. signed to Include a check-piece which, instead of bridging the crotch, was, when integral with the button,hole strip, a continuation of it around, instead of across, the apex of the fly-opening. Held invalid, as ap. extension of the claim of the original patent, and therefore not infringed. by the defendants.' manufacture, which was substantially the same as that of clai'm No.2.
Oausten Brown and Wm. A. Jenner, for plaintiff. Gilbert M., Plympton, for defendants. SHIPMAN, J. This is a biHin equity to restrain the defendants from 'the alleged infringement of the second claim of reissued letters patent No. 9,616, applied for February 19, 1881, and issued March 22, 1881, :td Redmond Gibbons, for an improvement in pantaloons. The original . patent was dated June 6, 1876. The specification of the original pat,rent says that the Invention "relntmlto a fastening' for the crotch in the fly of pantaloons and similar garments, 'ahd it consists in bridging said ; crotch with a check-piece of cloth or, other inelastic, pliable material, as
PATENT. CLOTHING CO. V. GLOVER.
817
hereinafter fully described." The pahmtee further says: "The lower end of the button-hole strip does not extend down, and fasten into the crotch, d, as in the common construction of pantaloons, but bridges .over the crotch. * * * Fig. 4 shows, instead of the preferred construction exhibited in the other figures, a separate piece of cloth, serving as the bridge or check-piece." The single claim of the original patent was as fonaws: "In combination with the fly of pantaloons, or similar garments, an inelastic bridge or check-piece, arranged across the crotch thereof, substantially as described, whereby the strain at the crotch, when the fly is opened and spread apart, is received by said bridge or check-piece, instead of at the angle of the crotch itself." The claims of the reissued patent are as follows: "1. The combination, with the.fiy of a pair of pantaloons, or other similar garment, of an inelastic bridge or check-piece arranged across the crotch of the fly, and operating substantially as described, to receive any strain occasioned by the spreading apart of the fly, and which would otherwise be exerted .upon the crotcn of the fly. , "2. In cOlI}qJniltion with the fly portion of a pair of pantaloons, or other mmilar garment, a check-piece made integral with the button-hole strip.of· the fly, and ad;tpted to prevent any tension at the crotch, d, that might operate injuriously upon it." . The overalls which the defendants make do not have a bridge spanning an open space between1he bridge and the point where the two sides of the fly meet, but the button-hole strip extends down to, and is fastened at, the crotch, and extends upwards, and is secured to the button strip at the opposite side of said fly portion, being lapped. behind the button strip. The overalls which the plaintiff now makes are of the same construction,exceptthat the button-hole strip is lapped upon the front side ,0Uhe button strip. This difference is not materiaL The question which first presents itself is whether, under a struction of the reissued patent, it should not be confined to a. bridge or check-piece which is arranged across the fly front, and bridges over, and is not fastened at the crotch. The reissue was applied for four years and eight months after the original patent was granted, and sevel'al months after the defendants began to make and sell the garments which are said to infringe; but it is earnestly contended that the reissue is not but isa more careful statement of an enlargement of the original the invention which was therein described and claimed. I am clearly of the opinion that the invention' of the original patent, as described and claimed therein, was a piece of inelastic, flexible material, arranged the crotch, as a bridge, with its two ends secured to opposite sides the fly-front, at points so far down the two sides that, when a strain is brought thereon, the bridge will take the entire strain. The original specification, drawings, and claim show that the bridge was the invention for which the patent was applied for, and any other invention is beyond its terms. It is also the invention of the first claim of the reissue. The,second claim of the reissue was designed to include a which is not only the bdtton-hole strip, but which extends v.31F,no.13-52
..s18
down to, arid is fastened atjandcrosses the crotch of the fly, and thence extends! up upon the other side of the fly, and is fastened to the button strip. .Thisis not the invention of the original patent, which expressly said that the button-hole strip, when serving also as a bridge, does not extend down and fasten into the crotch. The second claim of the reissue is invalid unless it is limited to the bridge or check-piece of the original claim. With that construction, there is no infringement,and' the bill isdisIIlissed.
, CaU8tenBrmvn and Wm. A. Jenner, for plaintiff. Gilbert'M. Plympton, for defendants. SHIPMAN, J. This is a bill in equity to restrain th&· defendants from ·the alleged infringement of the s.ooond claim of reissued letters patent No. 1},616, applied for February 19, 1881,and issued March 22, 1881,)0 Redmond Gibbons, for an improvemehtin pantaloons. The 6rigin,al patent wasdated June 6, 1876. A brief opinion, in which the bill was direMed 'to be dismissed,was filed on May 14, 1887. Upon the application of'the plaintiff, the case was thereafter reargued. ' . 'I)' The case del>ends upon the proper construction of the second' claimo! the reissued 'patent, and the constt.ilction turns upon the question whether this claim, ,lfconstruedaccordingto its literalnieaning, is an ment of the Bingle claim ofthe original letters [patent. The plaintiff contends that the defendants, infringe' the patented invention, as it was ·originally described and claimed, and: that there was no enlargement in the reisBueibitta more accurate 'statement of the invention which was daimed' in the'original patent. I therefore quote the substance of the original specification, so that the scope of the invention, as it was therein explained; may be seen. " "My invention relates to Ii fastening for the crotch irithe fly Of pantaloons. or similar ga.rments, and it conSists'iiJ. bridging said crotch with a check-piece of :cloth or other inelastic, pliable material, as hereinafter fUlly described. The {)bject of invention is to prevent'that tension at the crotch ordinarily ,produced eitherJ;>y continued uSll of by any undue strain Ilaused ·by the,assumption by thewearer of any posture of tbe body, or by the removal tbegai:ment. calculated to produce such an 'effect. The said imptovement 'is:applicable to all descriptions of pantaloons and garments of a similar character;itsapplication to the garment adding gl'('atly to its durability, by pre. venting the stretch of the cloth or stitching at the crotch. "To enable PElrsons skilled in the ,art of manufac,turing the garments to which my invel'ltion is adaptable, I describe the same l!oS follows, referring to the annexed drawing: Fig. 1 is a. view of the upper part of a, pair of panta· loons; the front of the fly being turned down, so as to Show the application of the improvement. , Figs. 2 and 3 are, respectively, edge and face views, on an enlarged scale, of the fly, extenMd so as to show the attachment of the im-
, On Rehearing.
(July 80, 1887.)
PATENT CLOTHIKG CO. 'V. GLOVER.
819
provement: Fig. 4 shows a modification in construction. In figs. I, 2, 3, the button strip of the fly is represented by a, and the buttons, b. The but;.. ton-hole strip is indicated by c, and between the button-holes it is stitched to the front of the garment intheordinary way. Tlle lower end of the buttonhole strip does not extend down, and fasten into the crotch, d, as in the common construction of pantaloons, but bridges over the crotch, being securely lltitched at e to the button strip, a. The button-hole strip is also firmly secured at f below the lower button-hole. Fig. 4 shows, instead of the preferred construction exhibited in the other figures, a separate piece of cloth serving as the bridge or check-piece. This construction I deem to be Within the scope of my invention. "My invention, as seen in the manner preferred by me, adds nothing to the cost of the garment, but rather cheapens its manufacture, by causing the attachment of the lower end of the button-hole stdp to be made at a point more easily reached than that at which the connection is ordinarily made." . The letterd is the crotch of the fly, and is at the crotch seam Qf the fly, and that seam is at the upper end of the seam which runs from the crotch between the legs upwards to the crotch of the fly. The letter e is at a painton the button fitrip opposite to jupon the button-hole strip. The· points eand J, as represented in the drawings, are so far removed from thecrotch,d, that there is a considerable open space under the line or strip which unites e and J. Each of the drawings, except No.3, which is a pIau view, shows an open space under the check-piece, and represents the check-piece as one side of a triangle, of which the other two sides are the right and left fly-fronts converging to an apex at d. The claim of the original patent was as follows: "In combInation with the fiy of pantaloons, or similar garments, an inelastic bridge or check-piece, arranged across the crotch thereof, substantially as whereby the strain at the crotch, when the fly is opened and spread apart, Is received by said bridge or check-piece, instead of at the angle of the crotch itself." The claims of the reissued. patent are as follows: "1. The combination, with the fly of a pair of pantaloons, or other similar garments, of an inelastic bridge or check-piece arranged across .the crotch of ihe tIy, and operating substantially as described, .to receive any strain occasioned by the slJreading apart of the fly, and which would otherwise be exerted upon the crotch of the fiy. "2. In combination with the fiy portion of a pair of pantaloons, or other similar garment, a check-piece made integral with the button-hole strip of the fly, and adapted to prevent any tension at the crotch, d, that might oper.ate injuriously upon it." The overalls which the defendants make do not have a bridge span,ning an open space between the bridge and the point where the two sides of the fly meet, but the button-hole strip extends down to, and is fastened a.t, the crotch of the fly, and extends upwards, and is secured to the button strip at the opposite side of said fly portion, being lapped 'behind the button strip. The overalls which the plaintiff now makes are of the same construction, except that the button-hole strip is lapped uponithe front side of the button strip. This difference is not material. The patentee's licensees instructed their employes, in 1877, to bring the sewing of the crotch seam as close as possible up to the check-piece.
820
The reissu'e wns applied for after· the defendants began to make and sell . the garments which are said to infringe. The question which first presents itself is whether, under a proper <Jonstruction of the second claim of the reissued patent, it should not be confined to a bridge or check-piece which is arranged across the flyfront and bridge over the crotch of the fly, as shown in drawings 1, 2, and 4. The plaintiff insists that the actual invention of the patentee was a check-piece which received the force of any unusual strain upon the fly front of overalls;. that it is inuuaterial whether the strip is arranged as a bridge,with an open space ullderneath, or as a of the button-hole strip,beyond the apex of the fly-opening, up to the button strip; that the open space has nooperation,and that the original specification is, at least, consistent with the invention, a& it is now used, arid does not demand a limited and narrow construction, which would de.prive the owners of the reissued patent of the benefit which would otherwise result therefrom. It is true that the idea of a strip of cloth, which shall serve as a strengthening piece ora protection against a strain at the angle of the.fly-front, is better developed by making the" stay, whenintegral with the button-hole strip, a continuation of it around, instead of across, the apex of the fly-opening, and that a stay with an open space underneath it has apparently no advantage over the other method, except in economy of manufacture; and it is also true that it is the duty of a court to give letters patent for inventions a construction which shall sustain the first claims of the inventor, and relieve him from the injurious effect of an imperfect description of the invention which he had attempted to secure. If, however, the patentee has plainly pointed out, and by his description has established, the boundaries of his invention, they cannot be enlarged by construction. Recognizing this ciple, and that the question is not what the patentee might have applied for, but what did he apply for and receive, the plaintiff says that the original patent, fairly construed, is not limited toa stay or check-piece . which is a having an open space under it. . The specification shows two methods of construction; one, shown in Fig. 4, which is a separate piece of cloth, and which is a bridge, while the button-hole strip is continued, ,as previously, to the crotch of the fly; the other, Shown in the other figures, in which the button-hole strip becomes the bridge. The mooted point is whether this strip is described . as not extending down and fastening into the crotch, but, on the contrary, bridging over it, or whether it is described as not extending to "the crotch and stopping there,as in· the common construction, but extending beyond the angle and lappirig into the button strip. The plaintiff insists that when the patentee said in his specification that the lower end of the button-hole strip does not extend down to, and fasten into the crotch, d, as in the common construction of pantaloons, he meant that the strip does not extend down into the crotch, d, and become inoorporated with the fly-crotch seam, and stop there as in the common construction, but bridges over the crotch. It says, also, that, in the
PATENT CLOTHING CO. 'V. GLOVER.
821
common construction of fly-fronts; the lower end of the button-hole strip passed down into, and stopped in the seam of the fly-crotch, whereas, in the patented improvement, the lower end of the strip is not thus carried down into, and incorporated with, the fly-crotch seam, but is carried up on the other side and is attached to the button strip. The natural construction of the specification is that, when the patentee described a bridge which was arranged across the' crotch of a fly, he meant a brace or stay which crossed, and did not go around, the apex of the fly-front. A different· construction would not occur to the reader, until he learned the fact that such a construction had been suggested, or that it might be desirable. The idea which is naturally communicated by the word "bridge," and by the expressions "bridge over" and Ie arranged across the crotch," is not that of a stay which is nO,t a bridge, but that of a stay which spans an open space. The employment of these terms by the patentee is not conclusive as to his meani,ng, but he used words unnaturally, if he intended to convey the idea that his check-piece went around and not across the apex of the fly-opening. But, turning to the sentence which is the center ofthe discussion, it seems to me that the words, "thelowerendofthe button-hole strip does not.extend down and fasten into the crotch, d, as in the common construction of pantaloons, but bridges over the crotch," cannot fairly be interpreted to mean that. the strip does not simply extend down, and fasten into the crotch, and stop then, as in the common construction, but bridges over, because the patentee described in the concluding part of the sentence and of the paragraph what he meant by the "'ords "bridge over," by saying: "Being securely stitched at c to the button strip, a. The button-hole strip is also firmly secured· atj, below the lower button-hole." The inventor here declares that the button-hole strip is a bridge, inasmuch as it is securely stitched to the button strip at e, and is firmly secured on its own side at j. The old construction by which it went down to the crotch is abandoned, and it now crosses over the crotch at I and e. Again, the drawings, which are a picture of the invention, show clearly what the pl1tentee was trying to describe in words. They show a bridge, and nothing but a bridge, and leave nodonbt in my mind that the only invention for which the patentee applied for a patent was that of a checkpiece, which at the points e and I, below the lower button-hole, crossed .over and connected the right and left fronts of the fly. Any other construction of the patent would not only disregard but would contradict the drawings. The invention of the original patent, as well as of the first claim of the reissue, was a piece of inelastic, flexible material arranged across the crotch, as a bridge, with its two ends secured to opposite sides of the fly-front, at points so far down the two sides that, when a strain is brought thereon, the bridge will take the entire strain. The second .claim of the reissue was designed to include a check-piece which is not only integral with the button-hole strip, but which extends down to, and is fastened at, the crotch of the fly, and extends up upon the other :side of the fly , and ds fastened to the button strip. This claim is in-
,
822
vnlid,unlesB it is limited to,the bridge or check-piece of the original claim. With that construction, there is no infringement, anG the bill is dismissed.
, ' INGHAM and others PATENTS FOR INVENTIONS-N
'l1.
PIERCE
and others.
(Oircuit Oourt, .w: D. Michigan. S. D. 1887.)
In a suit for an infringement by a patentee claiming under letters patent No,'121.054, for an "improvement in platforms or handles for fruit-baskets," it appeared that the advantages claimed were that the patented top was movable, allowing baskets to be nested, and assisted in better securing a network over the fruit; but these features were not novel. It also appeared that the patented article possessed a novel feature in a wire bent over at the top,. and brought down through a hok in the standard, to secure the standards of the cover to the basket, which held the cover'more rigidly in its place than other baskets in which such wire is brought down on tluJ8ide, outside or inside, of the standard. HeliJ"that the patent, being otherwise wanting in novelty, could .not be supported for this feature, which was dormant in it and unclaimed: '
HANDLES.
In Equity. Suit for infringement of patent. RoBS Shinn and Dyrenjorth, for complainants. Taggart Deni8on, for defendants. SEVERENS,J. The bill in this cause was filed for the purpose ofrestraining an alleged infringement of the rights secured by letters patent to Joseph Knapp, September 21, 1871, for an "improvement in platforms or handles for fruit-baskets," No. 121,054. The complainants are the assignees of Knapp, the patentee. Several defenses are set up: (1) Want ·of novelty; (2) that defendants have not infringed; (3) abandonment by the patentee. The case has been heard on pleadings and proofs. . The oonclusionsarrived at by the court from a consideration of the pleadings, proofs, and exhibits, and the argument 'are as follows: Flirst; The specifications and claims on which the Knapp patent issued, indicate that the nature of the invention consisted in a removable platformor support, so arranged that it may be conveniently fastened to an ordinary frUit-basket, and in part hold the netting in place over the fruit, while at the same time it serves as a support to another basket on top for transportation, etc. The advantage claimed by the inventor for his improvement was that it suppl;ied aniIidependent top, which could be Inade anywhere, and could be attached for use at the same time the netting was put on, and afterwards detached. Thus the baskets could be nested, and conveniently sent from the factory to the place of using, and, after the contents were marketed, the baskets could be returned nested, which could not be done in the ordinary way of constructing the basket with the cover attached. The alleged invention was in the constmction of the cover of thin strips of stuff extending horizontally across the top