.solve11-t.9;: that,ifthedefepdant,h,d not. uS6J hp,ve. used the sQlventsm lleu. of fo;rtl;J.e trell-tlllent of the pyroxylinei.· that,byretU!on.ot tqe cost of the paten.tedsplventtbanthe otheriSolvents,the saved the sum. ,which hetil1d$ the complainant iii!. entitled to From tpe ,defendant psed the these findings it isappa!:'ept that, patented ;lIolvent, the ueeof the othersohrentswassupers9ded in its in pyroxyline.: The case is therefore one where; by the use ()f the invention; the defendant has been'.8,!l.ved a greater loss than it .would have, To thi!'lextent it has derived bytbe use tbepatent. Railroad 00. v. Turrill, 94 V. S. 695. It follows, that the conclusion of the maater is correct. If the, master ened by an improper rejection of testi" mony offered by the defendant at, .the hearing before l1im, his error was Qne to beat once corrected bya motion to the court for an ord.erto compel him to receive. the evidence, alld is not the subject of an exception to his report. Schwarz v. $ears, Walk. (Mich.) 19; ,Wart,l v. Jewett, ld., 45; NaiJ. Factory v. Oorning,6 Blatchf.333. ' . .
tha:t
","as of
M
SCHWEBEL
v.
BOTHE.
CQ'W1't, E. D. M1.8so'Uri, E. D. November 8, 1889.) P.A.TBNT8 ]l'OB INVBNTIONS-}{ABKING UNPATBNTBD AUTIOL1II8.
The tact that a personha8 marked the words" Patent· applied for" on an unpatented.art¥lle does not render him liable under Rev. St. U. S. S 4901, which provides that any' person who marks upon an unpatented article the word "patent, "or any word imbOrting that the lame is patented. for the purpoSe of deceiving the publio, lhall be liable. etc. .
·. On demuner to petition. . This was a qui tam. action, .1,mlUght.under the. third paragraph of . tion 4901 of the Revised Statu,tes of the United States, and the complained of was that the marked certain wagon stake pocliets with the words 'for." The petition contained 201 counts, a penalty of $100 being demanded on eaph count. The clause in question of section 4901 of the Revised Statutea prohibits persons from affixing tqany unpatellted article "the word' patent,' or any other word importing that the same for the purpose ofdeceiving the the petition. W. B.H(Y(M1', for plaintiff,. , George H·. Knight, for defendant·.
to
must be strictly construed, so as not to impose a penalty,unless the act withiD; the of tpe stat,ute,and also clearly complained
.THAYER,J.; (orally.).
,
\vORTHINGTONt1;
BATTY.
479
within the prohibition iIitended to be imposed by the law-maker. It is evident, I think, that the use of the word "patent" on any article is not an offense unless it is 80 used as to import that the article is protected by letters Standing alone, the worci"patent" would no doubtim· ply that an article to which it was affixed· was patented; but used in connection with other word-s it might not have that signification. The inhibition against the use of the word "patent" is, in my judgment, aimed at.'the use of' the word ,in l;uch manner as to import that an article is then and there 'protected· by letters patent. If not so used as to convey to the public that idea, no offense is committed·. SUppose a manufacturer should brand or stencil on an article the words folloWing: "A patent was heretofore obtained on this machine, but it has expired." Would it be pretended that the use of the word" patent" in that connection was· an. of..; fettse fOl'dwhich spenalty might be imposed ? Ithink not. Now the wOTds employed in the case at bar, "Patent applied for," did not signify that the article was then and thereprotect.ed by letters patent. It conveyed no such representation to the public. In point of fact, patents are applied for on many articles that are never granted.. Perhaps as manyapplications for patents are denied asll.regrallted. I am persuaded that the case does not fall within. the statute, and the demurrer is accordingly sustained. . ..
".BATTY. (O('1'C1UC
Court,B:D. New
November lIS, 1889.' INIUNCTION·
. , PlabitUfeontracted with an authO,.ress to copyright .and publlsh her 'Work. to use his best efforts to secure a speedy swe, and to pay her 12 cents per copy sold. Spe to furp,i,sh the manusllril't, and agreed not to cause to be publishedanytbing , .wbich mid,t injure the sale of Plaintiff BOught to restrain the publica. lion of 'tWe'"samewotk, emanating from ber since, in.a newspaper. Elhe to the suit, appeared that the sallt of tne book or nearly ceased, and· that· plaititifr. had not continued his dorta to BelL Be«!, tha& would be refused. "
In Eqttity.
,Barnum, for plaintiff. ToWnsend, D'yett & Einstein, for defendant.
WHEELER, Tliillis amotion for a preliminary injunction to restrain infringement qf the plaintiff's copyright of a. book written by Mrs. ' book\V,as copyrighted under an agreelllentbetween them that she should furnish the manuscript of the work, which he use his "v:erY,'1?estexertions and. facilities'to sa1e'or," and payher'12 cents on. each copy sold; and that she would not cause to be published, name or otherwise, anything which might injure or interfere with the sale of the book. The publication sought to be restrained is of thesamew()rk, emI