420
",DERAL REPORTER,
vol. 50.
tIe the defendant to a new trial. In view of what Withrow stated and is quite a surprising one, omitted to state on the trial, his present and much more favorable to the defendant than given at the trial. Miss Henneberger's ,ex parte statement is also more. favora.ble to the defendant than that given before the jury. This is, however, chiefly in the dietinctness of the statement in the affidavit. as compared with that made I have a distinct recollection of what occurred in the before the trial when these witnesses were exaininEld.. Young Withrow seemed to be calm and collected, and answered questions coolly, promptly, intelligently, and I think was not cross-exslJlined at all by the defendant's counsel. Miss Henneberger became muc,h embarrassecJ and agitated during the examination, but seemed to answer qUestions intelligently, though with some degree of indistinctness as to the time of her backing the registered letter to Model. She was excused, and in the course of a half hour or more was recalled, at the instance of the defendant, and then asked about some matter about which she had not been examined before. She\vas calmer than when she left the witness stand. The court asked her .a number of questions for the purpose of having her state to the jury, more definitely her recollection about the registered letter which she had addressed to Model, Tenn. She was asked the time, and all the circumstances conbected with the matter. She made a clearer and more distinct statement than she had previously given, but still not SQ. distinct Or in given in the affidavit filed. But granting this, and that Mr. Witqrow's affidavit is more favorable to the defendant than his testimony before the jury 011 the trial, and that, too, upon a most material fact, still I do not think this new evidence is a good ,ground for a new trial. If parties in criminal cases are allowed to get ex parte statements from witneBBes who havetestifil'ld upon their trial what they would then S'tatelf again put upon'the witness stand in trial if such evidence be material, another trial, ll:nd thus which would open widll the door to a precedent would be therefore. to oV,ell'ule the motion fraud and perjury. I am for anew trial. ' "
DOUGLAS
eta!.
fl. ABRAHAM.
(Circuit Oourt, S. D. Ohio, W. D. May U, 1892.) No. 4,829. ,. PJ.'l'BN'1'B
Letters patent No. 869,848, inned September 18, 1887, to J. & G. Douglas, were tor an improvement in flushin.g. tanks for water-closets, whioh consisted of a Bphericall'\l.bber valve, resting in a pup-sh&ped seat and closing the discharge pipe, and which, when 'drawn from its. seat, floats until the tank is nearly empty, when the downward ourrent draws and wedges it into the seat, which is of slightly less diameter than the valve, and deep enough to embrace it, when in position, for more than halt its size, thereby forcing it into oomplete QOntact with the surface of the seat. Held, that this is not in fringed by a device whose operation is precisely similar, but in Which the valve is of metal and has a rubber seat, and is, moreover, someWhat of an acorn shape, so that less than half its size is embraced by the seat.. whioh has allariui mouth.' ,
TA)JKlI-VALVBIl.
DOUGLAS 'D. ABRAJIAH· .. B.&.MB-EXTBNT 01'· CLAIM-WAIVBR.
421
The claim of. the Douglas patent was for a& valve seat so arranged as that the valve will be sucked or drawn and wedged therein in the act of closing." The claim was rejected as being met by another patent. The patentees acquiesced in rejection, and it was canceled: and they then claimed" a seat slightly smaller in diameter than the valve, and cupped to receive the valve for more than half its Held, that they must be restricted to this, as their acquiescence was a waiver of the broader claim.
In Equity. Suit for infringement of letters patent No. 369,843, is-sued to J. & G. Douglas, September 13, for improvement in flushing tanks for water-closets. Bill dismissed. Arthur Stem, for complainants. Geo. J. Murray, for defendant. SAGE, District Judge. The structure set forth in complainants' patent is a flushing tank with a discharge pipe opening into it at or near the bottom, arid provided with an elastic valve composed of a hollow rubber ball, which floats when raised from its seat. The seat is in the form of a cup, so· that the valve is guided into proper position, and slightly wedged in by the pressure of the water above it, thus making a firm closure. The overflow pipe is distinct from the valve and its opening, and communicates with the discharge pipe below the valve. The top of the overflow pipeis closed by a cap held down by a weight, which will float and raise the cap when the water rises above a certain height. The rubber ball valve is connected by a chain to a lever at the top of the tank; the lever being so weighted as to be normally in position to permit the valve to close. By pulling a cord so attached to the lever as to raise it, the ball valve is lifted from its seat, and the water passes into the discharge pipe. When the cord is re]t;ased the lever returns to its normal position; hut the ball, being hollow, floats on the water, and the discharge continues until the tank is nearly empty. Then, to quote from the specification, "the downward current caused by the pressure of the atmosphere from above, and the created vacuum beneath, will exert such an influence as will draw the valve into its seat, and deposit it thereon; and, the seat being smaller in diameter than the valve, the latter will be drawn or wedged into it so snugly as to stop the passageway, and prevent· any more of the liquid reaching the discharge pipe until the valve is forced up again by the pull." The patentees state in the specification that the valve cup or seat "is made deep enough so that it will permit the valve to enter and be embraced for more than half its size, as shown. The diameter of the seat, also, is less than the diameter of the valve itself, so that, when the latter is in position, it will be wedged and prevented from becoming disengaged except when pulled out." The drawing shows the valve cup or seat as described in the specification; that is, deep enough to permit the valve to enter, and to be embraced for more than half its l;Iize. The first clain'lof the patent, which is the only one sued upon, is as follows: . "The pull. B, connected to the fulcrumed and weighted arm, C, and chain, D, holding elastic valve, V, in combination with the valve seat, F. over the
vol. 50. discharge aperture; the seatbeing slightlysmallerin-diameter·thantbe valve. and,.cuppetHo receive the valv8' tor more than half' its' as BboWD8I1d'deBeribed." . .
,-
" '!i',
,
'.
The pi pe of the tank openS into it near the bottom. A metql ball and a rubber seat are provided to close the discharge. At the top of the tank a weighted lever, whose normal position is such 3Sto leave the ball valve dosed, is, ponnected to by two pieces ofwire, wJ1icp. constitute, a Qhain, and permit the lever to assume its normal position without the ball down, but pull the ball up when the weighted end of the lever is raised. There is a cup over the discharge aperture, which acts to enla,rgethe valve seat so as to guide the ball to its proper position; 'and wedge it slightly in place. the two ,structures to which it will be necessary to refer,are that the defendant substitutes a metal valve for the and a rubber seat for the metal rubber valve of the complainants' seat of the, tank. This metal ball valve is hollow and light, anq will float in the water when, from its seat; and, while it is nearly sphe,rical, it is somewhat aCO.rn shape, so that its greatest lateral diametef Js above the center of Hs perpendicular diameter when in position. . other point of difference. claimed on behalf of the defendant is that whereas the ball valve of the complainants'tank, when seated, is valve cup fOr, more tpan half its size, the defendantls valve, whe,ri sl;1ated, isless than half its perpendicular diameter within the cup or valve seat. n is contended for complainants that the language of this claim, construed in the light of the specification, referring particularly to the description of the devic y, and its operation, "means that the valve seat is cupped so as to conform with the shape of the valve, and of a size to receive the valve a distanqe to secure the wedging of the valve in the seat." .The first objeption to this construction is that the claim would then be substantially the original secopd claimas it appears in the file a,re in evidence. That claim was for "a wrapper and sphericalelastic valve, operated by a pull, and designed to open or close the discharge or,ifice of a flushing tank; the valve seat being so, arranged as that the valve will be or drawn and wedged therein in the act of closing, substantially as shown and described." But that claim was as func,tional and indefinite, and substantially met by English patent of 1848,;No. 12,098 to Hosmer, .and the rejection was acquiesced canceled. The second objection is that the field of inin, and the vention to the device descri.bed in the complainants' patent belongs was so' occupied when the complainants made their IlPplication that there wasri?rooin for. more than Jhe precise construction and claim set forth in their 'patent. They coulduot move from these in any direction without encountering an anticipation. They must, therefore, be confined to such a constrHPttop. Moreover, the drawing shows a valve seat deep enough to permifthe valve to enter and to.be embraced for more than half its size, Rnd the speqification is explicitly and unmistakably inexact accord with the of the claim, literally con-
The
VERMONT . FARM MACH. CO. ". GIBSON.
423
strued. The ,cotnplainll,nts' acq.piescence in the rejection or original 2, and its cancellation, aUlounted to a waiver of the broad claim therein made; and for that reason, also; the construction claimed, which would now, in effect, revive that claim, is altogether inadmissible. The question, then, is, does the defendant infringe the claim, as above constrl:\ed?The substitution of the metal valve fo1" the rubber valve, and of the rubber seat for the metal seat, is 11 mere transposition, which any (lould make, without invention, and it would not avoid infringeroent. But the defendant's valve has no rnore tendency to wedge itself into itssl'lat than has any of the well-known wash-basin or bath-tub valvesj and it has, if not less, certainly not more,contact surface than most of the old forms of plug valves. When the complainants' valve is s'\lnk tQ its in the. valve, ;seat the upper edge of the seat is a a"o:ve thq lateral disllleter of the valve. The result is that the valve is so wel1ged in as to be held tightly in position by the contracted mouth oOheseat, and by H expands and fits the inside face of the s.eat below its mouth; thereby precluding its withdrawal '\lntil it is partially collapsed Qyt,b,e upward force exerted in pulling it out. On the other hand, the greatest lateral diameter of the defendant's valve, when sunk to its place in the valve seat, is more than a quarter of an inch above the top of the seat, and the peculiar gripping or holding effect of the seat upon the valve in the complainants' device is wanting. The valve seat is not cupped so as to receive the valve Jor·more than half its size. More than half its perpendicular diameteria above the mouth of of the seat, and the mouth is flaring, not contracted. The defendant's construction is more nearly like the Dalton .and Ingersoll valves, as shown bYIl,D exhib,it put i;n evidence by complainants, made in accordance with prior patents issued to Scott, and admitted to have been in public and common use prior tooomplainants' invention. The defendant does not infringe the complainants' patent. The bill wiUbe dismissed at complainants' emIt.
VERMONT FARM MACH.
Co.
t1. GIBSON,
(two cases.)
{Otrcutt Court, D. Vermont. May 8, 1892.} 1. PATENTS FOR INVENTIONS-INFRINGEMENT-JURISDIOTION-WAiVBB.
The circuit courts of the United States have jurisdiotion of suits for the Infrin",ement of patents, Without regard to citizenship or residence of the parties; .and a bill which faUs to allege that defendant is an Inhabitant of the district where suit is brought is not demurrable, The'exemption fro)ll snit in any distriot other t.han that of defendant's residence is waived, if not pleaded. Letters patent No. 187,576, granted February 20,1877, to William Cooley, for "the process of treating milk for raising cream by sealing with water and air the cover, applied directly to the vessel containing the milk, It is valid, as embodying patentable novelty. Boyd v. Cherry, 50 Fed. Rep. 279, 4 MoCrary, 70, followed. The sale of a creamery containing cans which embody this invention does not operate as a license to use new cans procured from other parties, which infringe the claims of this patent. Machine Co. v. GibBOn, 46 Fed. Rep. 4llS. followed.
9.
SAME-PATENTABLE NOVELTy-CREAMERIES.
8.
SAME-LICENSE-WHAT AMOUNTS TO.