39 F. 700 -

700

"BALI.

FEDERAL REPORTER,

vol. 39;,

&

SOCKET FASTENER CO.

v.

KnAETzER.

Court,

n. Mailsacltusetts

September 18,1889.)

1.

PATENTS FOR !NVENTIONS-INli'RINGEMENT-GLOVE-FASTENERS.

In letters patent No. 325,otId, issued 8, 1885, to Albert G. Mead for a rnetallic glove-fastener, the button-hole member of the pevice consists of "a hollow socket in combination with a rivet and button-head, whereby it is centrally attached to the fabric," the spring action being secured in the expansive socket, The button-head and socket features were known in the art, prior to the patent. Heid, that such invention was confined to the form of the socket combined with an' imperforated button-head, and was not iufringed by letters patent issued to Edwin J. Kraetzer, the button-hole member of whose device consists of a socket with a tubular extension passing through the fabric and attached on the other side with a button-head, and It spring in the form of a split wire, capable of expansion and resting loosely in such socket.
SAME-CONSTRUC'l'ION.

2.

A patent c£.nnot be held to embrace a device which was not mentioned by the patentee as a part of his invention, and which is not clearly shown to be a novelty and a substantial improvement.

In Equity. Bill for infringement of patents. T. TV. Clarke and F. P. Pish, for complainant. J. R. Bennett and W. B. H. Dowse, for defendant.
COLT, J. This bill, as originally filed, alleged that the defendant Infringed six letters patent. Five of these patents weregrantp,d to William S. Richardson, andnurnbered, respectively, 260,050, 300,508, 300,501), 300,510, 325,699, and one to Albert G. Mead, September 8, 1885, and numbered 325,688. Subsequently the complainant discontin ued his sui t as to Richard80n's patents Nos. 260,050 ancl325,699. The devices shown in these patents relate to metallic glove-fasteners, the general features of which consist in a button member attached to one flap of the garment, and a resilient button-hole member attached to the other flap. The defendant's fastener is called the" Kraetzer Fastener," and is made uncler certain patents iesued to him. In the present suit we are only concerned with the button-hole member of the fastener. The spring which engages the button member of the Kraetzer fastener is a ring of wire split on one side so as to be capable of expansion. This spring ring is held loosely in a chamber composed of two pieces of metal, united around their edges, one of which has a tubular extension which passes through the fabric, and is eniSaged with the cap or button-head on the other side of the fabric. The spring chamber is on the under side of the fabric and the button-head or cap on the upper side, and the two are fastened together so as to hold the fabric between them by the upsetting of the tubular neck of the spring chamber on the upper side of the central opening of the cap. It is contended that when the spring action of the button-hole member is the socket itself, it is easily impaired, whereas the spring ring of the Kraetzcr fastener rests loosely in the chamber, and that this ena l)18s it to be made of the best elastic material. I do not find the Kraetz8r device in any of

BALL & SOCKET FASTENER CO. ". KRAETZER.

701

the Richardson patents relied upon by the complainant. Indeed, from the admission of complainant's counsel, it may be said that the only serious question in this case relates to the Mead patent. It is strongly urged that the Kraetzer fastener infringes claims 6 and 7 of the .Mead patent, which are as follows: "(6) A member of a fastening device consisting of a hollow socket in combination with a rivpt and button-head, whereby it is centrally attached to the fabric, substantially as set forth. (7).A member of a fastening device composed of a hollow socket, D, centrally attached to an eyelet, l, the latter resting upon and within an annular dppression, q. formed in a concave coilet or disk, E, substantially for purposes herein set forth." In his specification .Mead says: "I consider my present invention embraces, first, the method of centrally securing the socket portion of the fastening to the article, whereby the open part or socket of said member is disposed upon the under side of the flap and secured by a rivet extending through the fabric. Thus. in permanently securing it to the latter, a suitable button-head or cap is employed upon the upper surface of the flap, and can be so formed and constructed as to form a button finish, a result much desired, since it gives the article an appearance exactly similar to an ordinary button, which is the most neat and tasty finish that can be employed in the class of articles of apparel to which such fastenings are usually attached; but, further, the whole device is thereby concealed and prevented from becoming caught and broken." The socket of .Mead is composed of a cup-shaped washer with curved wings. It is applied to the interior of the glove-flap, and it is secured to the exterior washer or button-head by a central rivet passing through a hole in the glove-flap. I do not understand that it is contended that either the cap or cup-shaped socket of Mead is new, or that an elastic mouth situated upon the under side of the flap, and secured by a buttonhead at the other side of the flap, was not known in the art prior to the Mead patent. The invention of Mead, it seems to me, must be limited to his form of socket combined with an imperforated button-head. The Kraetzer device does not contain the .1Iead socket, and therefore does not infringe the Mead patent. The complainant seeks to extend what appears to me to be the legitimate scope of the Mead patent upon the theory that the spring-mouthed socket of Mead presses the leather upward into the button, and squeezes the leather against the inner surface of the button; that this feature, in connection with the fact that the hole in the flap need not be allY larger than the diameter of the rivet, introduces an im portant element of strength which is found for the first time in the ::Head device. There are several reasons why this theory does not impress me with the importance with which it does the complainant. In the first place, I am not satisfied upon the evidence that there is any great advantage in pressillg the fabric up into the button head; in the second place, I think this feature was present in the prior Dowler English patent, although it is not exhibited in the drawings; and, thirdly, Mead himself does not seem to consider this feature of sufficient consequence to claim it as a part of his invention. Before the court should give such a broad construction to the Mead patent

702

FEDERAL, REPORTER,

vol. 39.

as to include something not mentioned by the patentee as a part of his invention it should certainly clearly appear that the improvement was a substantial one, and that it is not found in any prior device. In this case I do not the complainant has made out the charge of infringement, and it follows that the bill should be dismissed. Bill dismissed.

SIMONDS COUNTER MACHINERY CO. V. KNOX

et ale

(Circuit COU1·t. D. Massachusett8.

August 31,1889.)

1.

JUDGMENT-RES ADJUDIOATA.

In a third suit on letters patent. which have been assailed as invalid on account of. prior public use, aud have been twice sustained by the courts. the former decision will be followed where no new facts of a controlling character are introduced. . ,

2.

PATENTS ]WR

Letters patent No. 147,288, dated February 10, 1874. and granted to Simonds and Emery for improvements in machinery for moulding counters for boots and shoes, claimed a combination ofa divided mould and cams, which moulded the heel-counter by a pressure nearly at right angles to the surface of the leather. Held infringed by a machine made under a patent granted November 6,1888, to G.A. Knox, by which the counter is pressed into shape by pressure nearly at right angles, by a spring· mould which is not divided, but is substantially the same as that of Simonds and Emery.

In Equity. Bill to enjoin infringement of patent. W. A. Macleod, for complainant. Livermore, Fish & RichaTdson, for defendants.
COI.T, J. This suit is brought on letters patent No. 147,288, dated }-"ebruary 10, 1874, granted to Simonds and Emery for improvements in machinery for moulding counters for boots and shoes. The present hearing was upon motion for a preliminary injunction. The patent has been twice passed upon by the circuit court. In the suit of Emery v. Cavanagh, 17 Fed. Rep. 242, 27 Fed. Rep. 511, JUdge SHIPMAN held that the patent was valid. The main ground of attack in that case was public use for more than two years prior to the application for a patent, and the court, upon examination of' the evidence, found that the prior use of the machine was experimental. Subsequently suit was brought in this circuit by the present complainant against Lewis B. Russell, raising the same issues as in the Cavanagh Case, and Judge LOWEI.I., after hearing the arguments of counsel, and upon consideration of the case, granted an injunction nisi. In the present case, and for the third time, it is sought to invalidate this patent on the same ground of prior public use. The question raised under this issue is one of fact, and consequently the evidence is conflicting; and, where the circuit court has twice found for the patentees on this issue, the court should hesitate to reverse such fin,ding, unless upon new evidence of a decisive and con-