FEDERAL REPORTER,

vol. 43.

,Wb.e appeal totha' dapartmenthas simply been decided by the commissioner, rather than the secretary, and, that having been adverse to the plaintiff, his right of action against the collector attaches at onc,e. . An,d, even if it were plain that congress in the passage of this act iiltended to deprive the plaintiff of all redress in the conrts, might he not in good reason claim that the act IS so far unconstitutional and void, as· being contrary to the fifth amendment, which declares that no person shall be deprived of his "property without due process of law?" The demurrer is overruled.
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MCCALL '11. 'ELLINGER

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(Otrcuit· Court, N. D. Illinois. July 22, 1800.)
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,f,.\.TI'lNTS FOR INvENTIONs-NovII<LTY.,;,

S;, SAME;"lNFRINGEMENT.

lh£' Equity.

'Letters patent No. 23a,425, issued October 19,1880, tpJohn A. McCall, for a "fiamof an oil-pot with a wick tube extending up from it, and beneath II to be blown into the flame through a tube With, a valve at its'upper end, are void for want of novelty.
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,.,Sai!d llatent is not infringed by a flam.beau containing a valve in the powder tube, 'in$teadof in the tube through which the operator blows.

, P0!Vert"s, for complainant:. . .. . Poore. & Brown, for defendant Cragin Manufacturing Company. 'H6]h""eimer &: Zeisler, for defendant Ellinger.

MrR.

"l3t@GETT, J. The bill in charges ,the infiingement by de-. fendants'of letters patent No. 233,425, granted October 19,1880, tothe complit'iria1?-t. John A: McCall,for a "flambeau," and seeks an injunction and accounting. The was qisposed of by between the piutiesas'to the defendant several mouthssince,and has been brought to hearing on pleadings and proofs only as to th,e defendant the Cragin Manufacturing Company.. The device covered by the patent is a flam beau" ,or torch,to be used, in. processions, and ,on other occasions when l'ightand exhibitions offire-works are desired, and consists, briefly, in anoH-pot, with a wick-tube projecting ,upwardly therefrom, and underneaththe It receptacle. for the intrt>d:uction of powder, usually lycQPodiurii; to be blown througp a tube, projecting through the oU.poq\) as to bring the powder in cuntact with the flame, and pro- . duce 'itn itic,r'eased flaIpe and col<,>ted light.. " Infringement is charged only aida the' 'first claim, which is: . 1) A,composed of the an at Its appilrend, and a powder-chamber below at lts lower end, the, central tube disposed with its lower end neal' to the]ower'etiii 'ofthe'powder-chamber, and with its upper end extended through the oil-chamber. and baving

V. ELLINGER.

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its open mouth arranged between and about on the same plane with the mouths of the wick-tubes. the blow-pipe furnished with a mouth-piece on Its lower end, and having its upper end carried powder-c;Jhamber and connected with the central tube, and the valve seated In the upper end of the blow-pipe. substantially as and for the purposes set forth."

The defenses relied upon are: (1) That the ,patent is void for want of novelty; (2) that defendant does not infringe. It appears abundantly from the proof introduced in the case that this patentee was by no means the first in this field of invention. Many devices seem to have been patented in this country and elsewhere having substantially the same objects as sought by the patent now in question. The claim under consideration is a combination claim, and is for (1) a casing in.: closing an oil-pot with a powder-chamber below the oil-pot; (2) a cent'l'al tube passing downward through. the oil-pot into the lower portion of the powder-chamber, so arranged that the powder, when expelled from the powder-chamber through the tube, will be delivered into the flame produced by the burning wick; (3) a blow-pipe furnished with a;mouth-piece on its lower'end, and having its upper end carried into and connected with the central powder-tube, so tbat the blast of' air through the blow-pipe Will expel. a portion of the powder through the powder-pipe into contact with the: flame; (4) a v!i.lV& seated in the upper end of the In the English patentt6 Colomb & Bolton, of September 24, 1867, a torch, or flambeau, is shown, not mounted exactly or OVeT the powder-chamber, but the oill-pot is attached to one side and reaches partly over the tep of the PGwdet"chamber. There is also a pipe extending downward from the oil-pot into the powder-chamber, and a blow-pipe extending upward through the staff or handle of the torch into the powder-chamber, which is provided to be suppliedwHh air by small bellows attached to the staff 01' handle of the torch. I find in this patent, therefore, substantially all theeleml;lnts of the pomplaina,Jlt'a. der-chamber; an oil-pot mounted upon one side or near the shoulder, as it might be ofthe powder-chamber, upward from the oil-pot, centrally over the powder-chamber; a powder-pipe extending upwllrd from the powder-chamber 80 as todeli'V'er thep{)Wder at tlie base cif the burning wick; a blow-pipe e:idending into thepowqerchamber so arranged that a blast of air shall expel the powder in the pOWder-chamber through the powder-pipe into the flame, and. a valve in the blow-pipe. It is true, as I have already said, that the oilpot is not e;x:actly mounted on the top of thepowdeHhamber, but i1"is above the powder-chamber, or rather above one side of the powderchamber, and it would require only mechanical skill to cover the entire upper part ()f ti),e the if that were deemed desirable, rather than to covel' only a portion with the same. So, ·foo, the air to be forced into the powder-chamber to expel the powder into flame, issupplied.bJ:a. il1s,tea,4 ofthe.lu,ngs ofthe operato,r; bnt these are onfyimmatenalchanges,and'do not affect the principle upon which the English device operatesl'and;in'thelight'of this 'patent'

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allineJfI dO'D,otsee h6wpsny clailb:,ior noveItyH:o.n: be maintained in fdtm; M''the ',' 'The 'proof 'also' shows the Amencan,
1876', to W. which' s'l16wea an ,.SeV;-i' eral other devlCes are also shown; notably, the Shaler patent of August 1" ,1876; where the ou..chamber ,is looated above the powder-chamber. i: ;But, if there were for donbt, in regard to/the, want of novelty in the QQQlplaiillJ.ut's device: in, view:ofttheEngli5h patent to which I have refElmW.;, I. think there can be no doubtthat defendant's device does not infringe' this firet" olaim of the complainant's patent, or either of ,the ... ::';fhe, ,has, ,to SOme extent, mallufactured flambeaux; made in a.CCClrdance with a patent: granted August 26, 1884, toW Bristol, in which the ,oil-pQt surrounds, the upper portion. of t\w... ber., ,; Thereia' in J t:be defetldanta l ,8' blow-pipe through the, handle of the ,torch into the, powdere1:J.AJll,ber l"by. rneansof which of air can be driven from, the lunga the, base of the burning tPere is noV;a1ve in the bIQw-pipe-o(thedefcndant's torch; the defendant's devioeibeing powdel'!'pipe inst»a,<! of: the blow-pipe, ,8 ,change in the ,arrangement, which, according totQe testimony. in thai substantial in its character, and producee 8 JllJ.ucll .safer an!! torch. The complainant, it 8tlems to is by .thefirst cla.hn·,of the patent<limited toa. torch in whiehthe valvesha1I.be:found in tile, iUIltea.dof the powder-pipe, and think, tbedefenae of non-infringement is well taken ,in, the . case. ,;For will be dismissed forwe.ut. of,equitl.

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cHAIB CO., Lhnited,,,; 'WILION

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(CireuCtvbuJrt. S. D. New!F'or1c. Jul189,189O.)
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L ,, A'l'BN" 4LJD CJi.uae. '. ' ',. , , Claim tof l!lttersl'atentNo. 173,071, blsued February 1,1876, to C. V. Sheldon for 'impro1vementa' 'in invalid 'eh6lre, is necessarily limited by the specifications to a 411, ,w:llJcb tbe p"wls.: a, nel}r the Cllnter:C)f' gravity of arms, E, and :\Vhicll, the, bar, S. is ,bel9w the point of pawls; an,d said patentls·libill iilUinged by the Bohsert cbair, in whicb the ends of tne rod engage ,:""racl{:$ t;4eseat. .. (J,al:love the rod, B,'are omitted.

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on the foot,;i-eei.Itin oolllbtn:ath,nwtth ratob4t attacbed,to thl'cbair'leg!8,Jls not, in viewottlie limited,' interpret&·ticl/. ,l:Iy ,the prigr'atate of the infringed by the chair.' , 'SiM"':'COSTs:' , , " ," , . . " , ' " " ",' ' , ' , W'hel"lf cemplaihant fans upon the'main isllnes, and sUoceeda oul1 Upon all lAue , of. trj;Vial ews" will not be &lloiWied. '

HARKS AD.JtJSTA.BLE FOf,D!NG cB:A'IRicb. ". WILSON.

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lof, ilhefi:tstand secdnd clahtllfofUnited siates'1atters patent No. FebruII.ryl,1876i to Cevedl'aB. Sheldon, for"&n imptovementininvalid ehairsandlbunges. The pat1:111t:recites: ..
"My Invention relatestot4atclass of easy chairs whicbhave an adjustable foot.rest,arratlged to be raised upon its pivots to a horizontal position, and aback. to fall 'down on a level with tbe,seat, to form a bed or lounge, .· *'" * andthe il1ventipn OODsistsof aJl impl'p.:ved contrivance the adjusting back and also improved contrivance of the adjusting:toot sUPl>or,t." . ",The .first a-nd second patent in issue herein areas Jol"(1) Thearms,E, pivoted 'to the front standard. C, and having a, ,upon in com binatioD: with the 'l'atchetbar$l, F. placed below ·.the of tbe seat /Jar!' S. 'beneath to the pendent Qfthe arms,;substantia!ly forth." (2)' The pawl' plate'.K. tbe foot-rest brades. cOmbInation 'with ratchet bars, L. attached to the chair legs, substantially as specified...· l " '.

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Concerning the first claimihe patent

"My improvement of this part of the chair consists of the ratchet bars, F, attached to the sfdes. of the seattrame, in combination with the arms. E, rigidly attached to ftiid"eo'nhi!ctetl!by Ii. rod; S, pasBing'binieatll the seat. the said arms carrying upon their inner sides pawls, a, which engage with the ratchet{ ',. ,": ..... ' , "The arms, E, are pivoted to the standards, C, so as to allow the pawls, a, t!> rest from their own.' gravityr and :that·ofthe . ' hanging-rod, Sj1Jlaturall'y "":#1'00 holdillgJlle up. · * * 'Thif :E. extend ·some distance below' the seat, and thereby bring tlie pawls near the (ienter of gravity of the said arms, thus diminshing the chances of accidental ment. ", :' ! (., " The bar, s,' ronrteetingtlm,'arfn8, holds thtr paWls 'in' proper lateral: position, makes them both operate simultaneouslYjand its weight,bein'g the point of suspension, gives steadiness to the devices, and insures the au,.t4,)Dlatic ,engagl':ll1ept 9Lthe p'8""ls, wjththe ,And concerning the second claim ;the patent recites:. .' ,:,,,j'G is the frame, whichis pi.voted to the chair-s.eat in the ordinary ;way at H,'and IIl\$ljlgjl,l. bed, and tei) hold it tb,echair·. {k.lmmonly, these legs hl!'ve had · :under sl,de to catch on the cross-bar, J, tip but is unsatisfactory, as the notchf\s ba.va to be aeettainwidth fol',tbethlckness of therbars, and a certain distauce'apattfor strength, whicll,'together, prevent making the adjustment as 'fine as itifJ de,sired. I therefore attach a thin paWl blade. K.tO the ends pf these legs, and Jl'ttaehlirmly-notched thecqil,ir legs, to receive the.saDle, .thus obtain the fine adju,tmllnt , ' ., ,

i,,:In theBQhsert cbair. whiCh is dlaimedto;bean.infringementJQfi.the 'patent, the ends .ofthe rod ,engage,l'aCfg below-the seat; and the pawls, .'a"above the rod, S, a,re omitted. ,:AndrewJ. Todd, for . '::' ·" :,Jeroloman tfo ArrCJ'l.d8mith, (Oharle!l 0. ,Gill,ofcouJ,lsel,) for defendanfis:.i
.'WATJLACE,J.

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At thehearingbfthis. cause\'Ideoided thattM'de·,bad notinfringoo. ,the; 'Set:ond, olaim, ofJ;thepa-tent·

'"

nDERAL

vol. 43.

·limited interpretatiqn of. that daim required by the prior art, reserved for, fQrther consideration the question of the validity of the first claim,and its infringement by the defendants. .Aftqr,Jlu examination of the, record, I am of the opinion that the first clahn is not destitute of novelty, or otherwise invalid, but that it is necby the language of the specification to a chair in which :the pI1.Wls,a, are located near the center of gravity of the arms,E, and in whkhthe bar, S, is below thelpo'int of suspension of the pawls. Upon the claim is not infringed by the Bohsert chair. The defendants have infringed the claim by the sale of three chairs, part of ,a lotof,foliu'or five that.theypurchased with the stock in trade of their "piedooe'S8or in :business.· Theeomplainant iseonsequently entitled toa failed upon the main issues in controversy, and has anisslie'oftdvial importance, costs will not be allowed.,,"", ' , i ·
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; STANDARD PAIN:l CO"

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et al.

(Oircuit Oourt, D. New Jersey. August 20,1890.)
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al'\swer denies tpe cbarge and showlI that the is <loubtful, a prellInmary inJunction should not be
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InEquity. .Jellirltik, and Willard Parker Buaer, for complainant. ,p; B.' lJl'akeman, for defendants;'

GREEN, J. This matter is brbught before the court upon a motion for a preliminary injunction based upon the bill of complaint, the an'swei.",of,tlU3,'clefendants, and theaccon'ipanying affidavits. The com';plai'nl1tlt;- in its bill, chargei3theinfringement of certain letters patent its assignors, ,Pearce '&; ",' Beardsley, for ' " improvement in .';, ,:'''.-,'.11 '<'.',', " ' , . ', ',',: ', :,the,prpduptlon and manufacture (If.paper, having water-proof, other and qualities," which ,pawnti lU'enumbered "No. 378,520," and bear date February 28, 1888. l'rrhc'in'Vcntioni 1>rotected by these letters patent consists in the coating, 'paper with a product or substance known as "maltha," which is defined to be "the solid residuum obtained in the "<li:stl.Mlttitlrt·ofthe heavier ,grades of .petroleum." The bill charges that are manufacturing and putting upon the market a paper which is identical, practically, with the paper which the complainant manufactures under the letters paterttreferred to, and is rendered identi:et\lr,bJ'oeingcoated,imPtegiuit'ed; or saturated with "maltha" inpalpable and direct infringement of'the complainant's rights, and to its great ,I1ecQnjary'lo$S, and hencetheyi ll)voke the remedial power of the cQurt. ,T4e: have; answ,ared, UUder ,Qath, fully denying every material
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B'J:ANnAR,D PAINi' 00. tI. REYNOLDS·

.allegation of the bill. Especially emphatic is their .denial of infringement. They admit the manufacture of a paper possessing in a high degree the qualities, virtues,.and characteristies of the paper manufactured by the eomplainliU)t under its letters patent, but they positively deny the use of "maltha," or any equivalent of "maltha." in such manufacture. They claim to have invented a new compound, never before known, which applied to paper, produces the result they seek, and for which compound they have applied for letters patent, which letters have been granted sinGe the answer They give frankly the formula of this compound. Apparently maltha does not form a part of it. Beyond this denial of the chief allegations and charges of the bill the answer goes still further. The defendants boldly charge and assert that. the pate!)t of the ooxqp]/lo,i!llintis wholly invalid because of lack of novelty and the alleged invention, and both American and English patents are aline*ed'to the answer, antedating by several years the,patent g;f the complainant, in which the coating of paper, by the residuum of the distillation of petroleum, is claimed by the respective patentees. The affidavits annexe,d,tothe bill Ul).d answer ure strongly corroborative of the charges, allegations, and' statement made in each" respectively, and are, of necessity, therefore, very contradictory. . ; i It isa·well-settled. when the material allegations of a bill are fully in the answer, under oath, that no injunction will issue ,before ·,!learing. And this is quite strictly adhered to, although the , diacloses grounds of equitable relief. In the Cdse under consider,ation are clear, explicit, and circumstantial denials by the defendants,under oath, of every allegation made and put forward by the complainal)t as a basis for the granting of the preliminary injunction. Such denialsl1,1:t:1stbe a bar to the CQmplainunt's present right to the writ. As the,case is now presented to the court upon the pleadings, the equities of the bill are fully answered; Of course, under these circumstances, there 'can be no preliminary injunction at this stage of the cause. But were this not so, there is another feature in the cause which must defeat ,the cor.Qplainant's motion. The answer not only denies the alleged infringement, but as well calls in question the validity _and force of the letters patent in question. The defendants charge want of novelty and prior use"and they produce before the court, in support of these allegations, affidllovits of reputable witnesses testifying thereto, as weUas letters -patel,lt,both English and American, which certainly 'antedate the patent of Pearce & Beardsley, and appear, to some extent, at least, to · cover or comprise identical or' strongly similar inventions to that claimed in this cause., A very serious question is thus raised, and one which ought not to be determined or disposed of on a motion for a preliminary injunction. In Illingworth v. Spaulding, 9 Fed. Rep. 154, a case very one under consideration, Judge NIXON, in this conrt, used ·similar this terse "This is an application for a preliminary injunction. None should ever be · granted where the answeting aftidavits show a reasonable doubt about the novelty orvalidityoi tpe, patent. The complainant. in such v.43F.no.4-20 ' -

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hislnjunetlori' !]ntil the; Bnalhearlng,r when the. court 'will proofs, to,aseertain facwW J :,i: , r<![; think the practice, gO ooge sound, and I 'lIlia.U follaw it. The nlotioidotpreHminaryinjunotion is, denied.

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Fnrn-ExrINGIDsRER' Co.

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'to HOLt.OWAY.

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(etreu(& Cour-r.,D.,MlllII'1Ilana. June iJ ,', ' , "',' ':, Ii. ,,',c', : ! " " ,

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claim bfpBtelitNo: '147;442. tebrua.ty 10; John a Qll..t, In.O,heJIllC,ai, ,ftre,' ""ali,d,"t,ha, wndini
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Steiner, for g ad-

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a ilft -iiiifril1gEll1ien,tby' thelldefei?-dant of letters No." 147,442, 0; '1874 4, grati'fed t6 John irichetnical'fire-extihguishers, The to fourth ,claim"of the patent, ' ' , " ) i , :': ,'" "i " , :·'(4) ,!&'cl&emlciilflJreJenjfhiil',t ¢()'iMstbfg"Of tranteprovidoo wIth ,a geJieratClr'tlrb'tlngllisher, 'and: reekN, ·the latter "haring Q. it alii , . ii, .:: .. The .patentee disclaims.anynovelty in. the:hollow-joumaled reel itself, 'and:iI1 hiB'spooi:ficatioos'states:: ',;:" :,. ,ii " ,c.' ,,: "Iaml,,"afiethat'il hollow.jou1"J'I«lMreel,suchas'used" by'me' intbiSEliiis,nGt bew, '8.-011 I i il.8f; mp clairiI, thefetoexcept in conneotion j t:\u} 1'I1l tl4own." J t' , ' 'Ji, Allthbugh, ,by, ,t,he defendant's anSwer 'almost eVlerY",possible is -pleaded,'.no'pl'oo{was introduced to su,pport anyone of them e:ltceptthat 'df ptiorinvtlu.tion;:andi in SUPPo'l'llof !that only fouf prior patents wete "filed t and no <btbel!iproof of,pnQt pubUe.ationor knowrtusewasproduced. Theoefeadant, who hwd)eena leading manufacturer ofchem. lieal/fire.extinguishers since 1872,: in his own testimony admitted the 'jringement,. and substantially admitted the novelty and :patenlability of ',:Steiner's mui'th claim·. It' is the defenditnt 'has desired to .: obtain a licansle:Jromthe and ,the adn1issionsin his testi' mony and the weakness of his defense cast some doubt upon the-serious,:'".:: ' . ",,,II"""'! ,:",', ;',.': 'I':; ;.,.,; , ..... ! Some difiiculties with regard to.the:Stei ne r:foll1rthclliim.suggest them,:selves UpoDlQQjiDspectionof the: claim. They aTise1'frl>tnltpparent want
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