WELLING CELLULOID MANUF'G CO. (Oircuit Oourt, S. V.
V.
LA BAU.
301
AMERICAN ZYLONITE CO. et al, York. AprillS; 1888.)
n. New
PATENTS FOR INVENTIONS-INVENTION-CELLULOID.
The discovery by Stevens that fusel oil was an efficient and cheap solvent of camphor, in conjunction with nitro-cellulose, was patentable, although it was known previously that fusel oil was a solvent of camphor, and that various essential oils could be used in conjunction with camphor iii the manufacture of pyroxyline.
In Equity. Bill for infringement of patent. C. Wylly8 Betta and Frederic H. Betta, for cO?Jplainant. T. W. 08born and H. M. Rttgglea, for defendants. WALLACE, J. Stevens was the first to discover the value of fuseroil as a solvent of camphor in' conjunction with nitro-cellulose. . It was known previously that fusel oil was a solvent of camphor, and. that'various essential oils could be used in conjunction with camp;ho:rin manufacture of pyroxylineibut some of these oils were not efficient, aod some were useless as substitutes for the men8trua useJ in producing the conversion ofpyroxyline when mixed with camphor. It is doubtless true, that by experimenting with the .whole list of essential oils any compeas tent chemist could have ascertained that fusel oil would, a solvent of the camphor, be efficient in producing the proper conversion of pyroxyline, and could have reached the discovery by a process of exclusion. But this is not enough to defeat a patent. . By his experiments Stevens obtained a menstruum which gave a better result than the men8trua previously used, and at less expense. The fact that alcohol had been used for many yeare; as a menstruum, when a cheaper could have been used, and would have been, if the availability ofiusel oil as a substitute had been obvious to those skilled in the art, is incon'sistent with the suggestion that nothing but the mere exercise of judgment was involved in selecting it as a substitute. There should be a decree forthe cornplainant.
WELLING
Oircuit Oourt, S. D. New York. June 18,1888. PATENTS FOR INVENTIONS-INFRINGEMENT-PRACTiCE....,..MASTER'S REPORT- hE-
.
In suit for infringement of a patent, the issue being referred to a ffiltllter as to whether defendant's alleged infringing article is composed of equal parts of talc and shellac, there being proof that defendant consumed in'hisbusiness nearly equal amounts of each, and plaintifl"sexperts and defendant's by fair implication, thnt defendant's article is composed of the two ingredients iu equal parts, the master's decision to that e.ffect'will not be disturbed. ..
In Equity. On motion for a rehearing. This ",as, suit by: Willi;trn M.Welling .againstJohn H. La Bau for infringement of a patent. '.l'he report of the master in favor of the complainant was, on 25th of February, 1888, confirmed, and the defendant's exceptions thereto were overruled. 34 Fed. Rep. 40. See, also"12 Fed. Rep. 875, B2 Fed. Rep. 293, and infra. The defendant nOWinoves(for a rehemingupon the sole ground that the court fell into err()rin not sustaining the to the master's third finding of fact, which is as follows: "That the said white checks so manufactured and sold by the defendant, assuming the fiber white to be talc, contained shellac and talc in substantially equal parts." Frederic H. Betta, for Lucien BirdseyeandJames O. Cloyd, for defendant. COXE, J. To what was said upon the argument but little need be added further'than the stateIi.1Emt that, after a re-examination of the record, iIi. theIight of the elaborate ,argument and brief addressed to this single proposition, the courtadheres to the conclusion that there is sufficIent evidence to sustain theinaster's finding The reasoning of the it is thought, gives und,ne prominence to the testimony produced by him, and practically ignores that of the complainant. The master might have credited the former, but evidently he was, not convinced of its truth, and was therefo;rejustified in rejecting it, and in acthe statements of and his witness, confitmedas of thein were by the defendant's testimony. The analysis of the that of Prof. positively, ali1d that of Dr. Ledoux by fair lmplicidion, show the white checks to be composed of shellac and talc in substantially equal i l l addition to this there was proof that during the })erlod in question the defendant had consumed in his equal amoui}ts'ofthese ingredients,-about 16 ,000 pounds of each. Tho, question was one of' fact, and the master's decision. sustainedas it'isby evidence, ought not to be disturbed. The motion is denied. ' "
WELLING·tI.
(Circuit Court, S. D. NewYorlc.June 19,1888.) L PATENTS FOR -EVIDENCE.
TO INCREASE DAMAGES
,:. Where, iI!' a suit for infringement, for the first time upon the hearing Of exceptions to a master's report upon the accounting the objection has been pre, the reissue patent is void, and, the original patent not having been '. put in evidence·. tlle court has held that though the reissue is manifestly void . U1e ev;idence cannot be considered because of the inexcusable lachellof de:fendant.infailing to present it to the court at an earlier day, yet'onmotion for t4acourt,in -its discretion; to increase the damages under Rev. St, U. S. ,.§§ :tlillfacUhat the patent is.vQid should betaken into consideration. '
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