S08
.
'.
,.
be accountable for the profits bas been rather desired than other,,:ise: This is shown by the evidence, as well as by the fact that no injunction has been asked for. The motions are denied.
TUCKER v. BURDITT and others. (Oz'rcuJe ClfU1'e, D. MlUBai!liu,utu. February 2, 1880.) 1. RoE-IsSUED PATENTS Nos. 2,355 AND 2,356, for an improved process In
bronzing or coloring iron, and for the iron thus colored, held, upon motion for an attachment, not infringed by the defendants in this case.-[En.
In Equity. Motion for an Attachment. O. M. Reed, for complainant. O. E. Mitchell, for defendants. LOWELL, C. J. The Inventions of the plaintiff, contained in the re-issued patents No. 2,355 and No. 2,356, for an improved process in bronzing or coloring iron, and for the iron thus colored, have been sustained by the courts; and in this case a preliminary injunction h.as been issued and served on the defendants. The process consists of cleaning a piece of castiron of the desired pattern ffOm the sand and scale which adhere to it when it comes from the mould, and then coating it with a very thin film of oil, and subjecting it to a high degree of beat, one or more times, whereby various colors may be produced upon the surface of the iron, and rendered permanent, which, before this invention, were not produced in cast-iron, or, if approximated, were not permanent. A film of varnish containing oil may be used instead of oil, and may infringe the patent; and so if the iron is first heated, and then varnished and heated again, the process may be infringed. The theory of the patentee and his experts is that the operation or effect of the process is not merely to produce and fix the well-known colors which heat causes iron to 'assume, with the modification produced by a varnish hardened by
TUCKER V. BURDITT.
809
heat, but that the oil or varnish itself is modified and oxi. dized harmoniously with the iron, and thus a better effect is produced than can result from varnishing colored iron. The patent might possibly be construed to include the process last mentioned-that is, a colodng of the iron, and fixing the color by baking the varnish; but there was evidence in the leading case, before "Mr. Justice Clifford, that a varnish, though not an oil varnish, had been baked upon steel pens, and that a somewhat similar mode of preserving the color of scythes had been used before the plaintiff made .his invention. It' is under these circumstances that the plaintiff has given the construction above referred to, and has not, as yet, claimed that his combination is used unless both the iron and the varnish are oxidized by the heat. 'The plaintiff moves for an attachment against the defeJ;ldants for aelli.ng certain butts for hinges, and certain handles for doors and drawers. rrhe articles appear to have been made by P. & F. Corbin, who are under injunction at the plaintiff's suit in the district of Con. necticut. The defence maintain that the articles were care· fully and scrupulously made in such a mode lis not to infringe the patents. There is no doubt that these articles are made and sold in imitation of the plaintiff's bronze, though mucn inferior to it; but the question is whether the manufacturers have succeeded in avoiding the patent. As to the butts, they insistthat they were made by first coloring the iron by heat. then putting on a transparent coach varnish, and hardening it by heat, but not so great a heat as will oxidize the varnish. As to the handles, the defence is that the bronze color comes from the varnish alone, which is not a transparent vatnish, but one containing pigments which assume this color at a less heat than will oxidize the iron beneath. This process, if it be the one employed, is admitted in the patent to be old. I have read the affidavits with great care, and upon them I am of opinion that it. is not proved that the pro· cess is employed in the articles now complained of. If I am mi'staken, as: it is by no means improbable that I InB.y be, upon ex parte evidence,' the final dec,rees in the circuit 'court
810
FEDERAL
for the district of Connecticut, and in this court, where the same questions are pending in a way better calculated to elicit the exact truth, will. set the matter right; but, taking the evidence as I find it, including such inspection as one who is not an expert can give to the articles themselves, I do not feel at liberty to say that there has beElll a breach of the injunction. Motion
TUCKER
& F. CORBIN.
(Circuit Court, D. Oonnecticut. March 2, 1880.) TuCKER
v. BURDITT and others, ante, 808, followed in this case.
In Equity. ,Motion for an Attachment. SHIPMAN;D. J.This is a motion for an attachment against the defendants for an alleged violation of the injunction order heretofore issued by this court in the above-entitled cause. The same questions which ltre presElnted in the affidavits were tried by Judge Lowell upon a motion for by the present plaintiff against Burditt and others. The motion was denied, and, after examining 'the various exhibits in the case, I can do no more than refer to the clearly expressed Lowell as an embodiment of my views. I opinion of J do not think that any. benefit would be conferred upon the parties by now attempting to modify or vary the language which he has used. . In both the Connecticut and Massachusetts ca,ses there were draw were, after being from iron Bcale, tumbled in a barrel. containing bits of brass, or brass By this process the surface of the articles was "brassed," or wasmor:e or less covered with a deposit of the softer metal. Theywere then dipped incqpal varnish, known as: a bronzing varnish, which was h;rdened in an oven heated to a moderate heat, but. not to so great a !leat as tooxydize
