52 F. 648 -

648

FEDERAL REPORTER,

voL 52.

In'Ongfulcombtnations and:conspiracies in restraint of trade are alleged, and a .monopoly of the whole or a part of the trade and commerce in lumber: in' the several states mentioned. The allegations are too indefinite and uncertain, and the demurrer to all the counts is sustained.

STAHL tI. WILt.UMS.

(CHrcuU Court. 1). Oonnecticut. September til, 18ll1.) No. 708.
L :PAfttftsJ'OB I1fVBNTIONS-AoqtJIBS<lBNOB-EvIDBNOB. On a motion for preliminary injunction the patentee made amdavit that he put .*he illvention into practical US8 about the time of the application, and it had .been ill practical use ever since; that the rights of the owner of the patent had been aequfesced ill by the public; that the inventlonhad been applied to many bundred machines i 't.,hat he had never given any licenses, or sold any manufacturing rights; and that tDe.validity of the patent had never been questioned. The assignee of the p.8atehtm.adeamdavit th.a.t be. had applied the, pa.tent. since ;January, l8lla. Held, that this wM1nsu1tioient to Illow public acquiescence. .
.. BAMB:-l'RBLtJlllURY INJUNCiTION-PRIOR ADJUDIOATION.

On a motion for a preliminary injunction, complainant introduoed the record of aDother circuit court, that in a suit by him against a third person the court fo1lDd iDfringement, and granted a restraining order; tbat SUbsequently this injunctioJl. was made perpetual, but there was nothing to show that any question 11.1 to patentable novelty, the prior state of the art. or public acquiescence, were raised therelD; Held, that such an adjudication was not of controlling weight. On amotion tor preliminary a prior adjudicatioD in· another circuit, finding infringement, and awardmg a perpetual injunction, is not conclusive, when the alleged infringing devices are materially di1ferent in the two cases.

tray for incubators, wires or cross barshin combination with a muslin web below the lame, on which the eggs rest, ,and w ich is movable by means of rollers so aato turn the eggs. In his application the patentee claimedaa his improvement an arrangement whereby the eggs re&ted between cross bars not supporting the eggs; and disclaimed crOlisrollers on which the eggs In defendant's incubatortbeeggs rest upon a cloth bars, and the-oloth revolves on rollers, bu.t the rollers serve both to support the eggs and to hold them in place While the cloth is moved to turn them. Defendant's device bad greater likeness to · prIor lilatent than to that of complainant. '. There was DO ,evidence that serious injury would, be caused by withholding a preliminary injunction. Held, that the lame lIhould be denied. . . . I. B.um--DIsOLAIMER. Letters No. SllS,249, ill. 1887 to George H. Stahl,covers in claim 8 an incubator in which uniform heatmg is secured by a fiat tank overlying the chamber, and divided by two partitions extending from one end nearly to the other, the hot water being discharged by pipes into the outer divisions, and carried 01'1' by a single return pipe, leading from a point between the partitions. Defendant substitutes pipes for the partitions, and it appeared that the patentee originally claimed similar pipes, but, the same being rejected, he disclaimed the use of pipes for maintaining an even temperature. Held, that the claim should be strictly consttued agairist him, and that a preliminary injunction should be denied, espe. cially M it appeared that both pipes and partitions had been used prior to the .

&. S.uo:'-PRBLmINARY INJUNO'J1ION....;,INII'RINGEMENT. Letterll patent No. 258,005, issued to Halstead, May 28,1882, cover an egg-holding

In Equity. Bill by George H. Stahl against Albert F. Williams for lnfringemellt of patents. On motion for preliminary injunction. Denied. J. J. Jqnnings, forcQmplainant.

STAHl. V. WII,LIAMS.

649

TOWNSEND, District Judge. The complainant claims under six patents for certain improvements in incubators, but only two of these are relied on as the foundation of the prayer for a preliminary injunction. The patent No. 258,295, known as the "Halstead Patent," was issued to Halstead on May 23, 1882, and was assigned to complainant on February 1, 1892. The claims Nos. 6 and 7, which complainant alleges are infringed by defendant, are as follows: "(6) In an egg-holding tray, the combination, with the wires or cross bars, of a web of muslin or similar material, on which the eggs rest, and which is movable, so as to turn the eggs, SUbstantially as set forth. (7) The combination, in an and turning tray, of cross wires or bars, a web, and a roller, upon which the web maybe wound, substantially as set forth." The eggs are kept in position, while turning in said tray, by wires stretched across it. The advantage of this arrangement lies in the fact that the eggs can he turned without the danger of breakage. In defendaat'sincubator the eggs rest upon a cloth supported by parallel bars of wood. 'Said cloth revolves on rollers as in complainant's tray, but in defendant's tray the rollers serve both as a support for the eggs, ltnd to hold them in place while the cloth is revolved to turn them. Complainant claims that this device for supporting and turning eggs is a mechanical equivalent of his invention, and an infringement thereof. . Conlplainant further introduced the affidavit of Halstead, the patentee, for the purpose of showing acquiescence of the public in the validity of aaid patent. The material part of the affidavit is as follows: "That applicant put the same into practical use about the time the application for patent was made; that the same has been in practical use ever since, and the rights of the owner of said letters patent in said invention have been acquiesced in by the public, and that this invention has been applied to a great many hundred machines; tbat he bas never licensed any olle to .make it. and had never sold any manufacturing rights to make it, and the validity of said letters patent has never been questioned." The complainant also introduced in evidence an order of the circuit court of the United States for the southern district of Illinois, dated April 4, 1892, granted in a suit brought by the complainant against A. L. Chase et al., wherein the court found the egg tray of the defendants in that case to be an infringement of complainant's patent, and restrained and enjoined the defendant& therein from further manufacture the further order of the court; the cause being conof said trays tinued for further hearing to April 23, 1892. On June 9, 1892, and after the hearing in this case had been closed, complainant, by leave of court, filed certain exhibits introduced upon the hearing in said case in Illinois, and a copy of the final decree of said court, making said temporary injunction perpetual. The detimdant introduced several patents for the purpose of showing the state of the art at the time when complainant obtained his patent, and the lack of patentable novelty therein. One of these-the Renwick patent, No. 224,224, granted in 1880-described a tray in which the eggs rested on bars or rollers, or "on an endless apron, carried upon the supporting roller." The eggs were turned by means of the revolving

·6QO

FED.fJRAL REPORTER,

voL 52.

rollers:, ",ithQr withput:Slliid apron.,. Another Martin patgrant¢d of'roHers sup, ent, portil;lg tQie·eggS; .which ppontheir axes, and, turned, the eggs. Othe:r.patellts, granted to that of complainant, described egg trays with grating.covered with cloth, as by complainant. The Ylc8,of the defendant mor.e nearly resembles the deviees employed in certain of these earlier patents than those claimed in the Halstead patent. the cross wires .and wire netting are distinct,. and used for entirely purposes·.. The wires above the cloth, and, as the patentee describes: them, 'I near the top of the tray," prevent the eggs from moving'along whenthe cloth is turned while the eggs rest upon the netting. Neitherindefendant's device nor in the Renwick patent are there cloth, but the rollers below it serve the double purpose of srhjV0;l'Jting t.hecloth and of holding. the, eggs in place while turning. Itfurther:appeared.that Halstead, in,hi8 application for a patent, claimed s.l!l an arrangement whereby the eggs rested between cross the eggs, and disclaimed cross on .;. .' .' which The tllatheapplied the patent since January , 1892, and .tpllotofthe patet!teerqu9ted above, are the only public . N911Yi oithe Mses. cited by complainant's counsel show that such use .would be. sufficient to establish the claim of public .; . acquiescence." '.' ',.. " A suitable adjudicatioI;l oflJoJ;1other federal court, on 'final hearing, upon. the of this the infringements thfSreof, would have Qot contrplli*g,; weight in the determination of the same questioQ(intMscourt. itpoes not seem to me that this is such an adJudication, for reasons: The restraining order or -injunction originl1Ily grllntedwas made perpetual at the final hearing but no further finding 'was'Inade thereon. Although this case was reopened to permit complainant' to introduce evidence as to said decree, none wasofl'ere<l;to, to the state of the art or pv.blic, acquiescence werEl for the consideration ofthe court. Itl10es nO,t e\TeQ. lippearthat the question of patentable novelty Was before. the court, except asJt from the decree of the court. The seems to bebllsed simply upon "the bill of complaint, oLthe respl;lctive parties, and arguments of counsel." No opinion of the court was filed with the papers. But is another r,cason why said decree is Dot binding in this case. An ,efl'amination of the exhibits in the case in Illinois shows' that the infringing device differed .materially from that of the defendant, in having both the wireneitingbelow,3pd the cross ,wires above, the cloth apron, as in complainant's patent. For these reasons I think complainf,tnt. has .failed>tQ,show. t;ha.t· the. d@J.'Eleof the Illinois court controls this case. i. The other agaJnst of which an injunction. is asked is. N;Q. in, 1887, to. complainant. The claim No.!3.9f,wbi<:h, defeuliant's·deviceis alleged to be an infringement,is follows: ,; ,

STAHL fl. WILLIAMs;

65'1

,"In an incubator, as a'means of unif6rmly heating its interior chamber,' the flat tank overlying naid chamber, and provided with the two partitions extending from one. enc[ nearly to the other on o.pposite sides of itsmid(fle, in combination with the external beating vessel, the two pipes, a, leading from its top into opposite ilides of the tank outside of the partitions, and the return pipe, a, located at tbe same end of the tank, and extending from a point between the partitions to the base of the heater, whereby the bot water is delivered in two currents along the sides of the tank, and returned through its middle to the heater." This claim No.3 ll,lso was held valid., and a perpetual injunction granted against defendants, by the court in the decree hereinbefore referred to in the suit i.n Illinois. The reasons already stated why that judgment is not conclush'e herein as to the Halstead patent apply to this patent. The defendant substitutes pipes for the partitions patented by complainant. Complainant claims that said pipes are a mechanical equivalent for said partitions. But defendants showed, by the copy of the file wrapper in the matter of the above patent, that the complainant originally claimed pipes, substantially as used in defendant's incubator, and that, the patent office having rejected such claim, complainant inserted in his application' the following disclaimer: "I am aware that heating pipes have been variously arranged to maintain a uniform temperature in an incubator; but a flat tank, with partitions, such as herein shown and described, has been found to give the result desired in a more satisfactory manner, and Ilt less cost." After sucb acquieseence, the claim of the patentee as allowed must be construed strictly against him and in favor of the public. Mott iron Works v. Standard Manufg Co., 59 O. G. 2067, 51 Fed. RElp. 81, and cases cited. by the patent to Cantelo, No. 5,204, The defendant further granted 1847; the patent to Davis, No. 193,490, granted in 1877; the patent No. 245,121, granted in 1881; and the patent to Rosebrook, No. 349,749, granted in 1886; that both pipes and partitions had been used priorto the issuance of complainant's patent, and for the purposes claimed by complainant. On the other hand, complainant claims that the patents introduced by defendant are mere paper patents, which never had any practical value, while his patents are of great utility. Where the question of patentable novelty is doubtful, an extensive use by tbe public may resolve the doubt in favor of the patentee. Topliff v. Topliff, 59 o. G. 1257, 12 Sup. Ct. 825. On the whole, however, the evidence presented bas raised in my mind sucb a substantial doubt in regard to infringement in either case, that, in the absence of any evidence that complainant will be seriously injured 'by withholding tbe preliminary injunction, I do not feel justified in granting it.. 11 A preliminary injunction ought never to be issued unless the right of a patentee is an established or admitted ·one, and unless the invasion of the right is proved beyond a reasonable doubt." Pavement Co. v. City of Elizabeth, 4 Fish. Pat. Cas. 189. It does not seem to me that the questions raised can be fully and fairly disposed of on the hearing of

652.

FEDER+L REPORTER,

vol. 52.

the aPJtliCj:LtJPIl for a temporary injunction. and .I think no injunction should i8,S14euntil after a full and final hearing. Themotioo for a preliminary injunction is denied.

THE LOUIS OLSEN.

HARITWEN . 'D. THE LOUIS OLSEN.

(District Oourt, N. D. Oalifornia. October 1. 1892.)
No. 10,424.

1.

:M:AIUTnmLnnrs-STATIlI S'l'ATUTIlIS-FEDIlIRAL COURTS.

2. ,BTATU<rBS":"'PONSTRUCTION-CONll'LICTING PROVIS1ONB. The constitution of California provides that no law shall be amended bv reference to its title, but shall be and published at length as Code Oivil proc·. Oal. 818, was amended and re-enacted by an act which amended the COdll.g 6. ll'l.l'&lly/and proVid.ed that all.. lawsi.n.consistent. therewith should be re. J ... .. . )Iota, l;hat a clause of .this secti.ou which remained uuchanged was not so re-811Boted as to make it a later statute than one prevailing before such re-enactment. Railroad 00. v. Shackelford, 68 Oal. 261-265, followed.
3.

district qourts having jurlslUotion of a contract, as a maritime one, mle12, enforce liens given for itsseourity by state laws. The .Lottawdntnll, 21 Wall. 558, followed.

Un,ited

Pol. COde Cal. § 4481, prOVides that, if the provisions of any title of the California Codes oonftiot with the provisions of another, the provision of each must prevail as to all qUllstions arising out of thll subject-matter of such title. Code Civil Proe. 55, prOVides that prOVisions of this Code, so far as they are substantially the same as the existing statutes, must be construed as a continuation thereof, and not &s uewenaQtments. Held, .that sec,ltion 5 of the Code of Civil Procedure prevails over section 4481 of the Political Code in the oonstruction of Code Civil Proc. 813, and Civil Oode, § 3055, which are iu conflict. People v. Freese, 18 Pac. Rep. 812, 76 . Cal. 634, folJ,o\Ved. The cOmmon law of England, (which f:ave a master no lien on a ship for his wages,). by Aot Cal. April 13, 1850, was adoptEld as. to all courts of the state. By Pro Act Oal. § 317,adopted April 29,1851, a master was giveu such a lien. This was re-enacted in Code Civil Proc. § 813. Civil Code, § 3055, which took 13ffect Jauuary I, 1878, provided that a. master sbould have no such lien. Pol. Code, § 4480, provides that the provisions of the Codes shall be construed as if enacted at the same moment of time. Held, that under Code Civil Proc. § 5, section 3055 of the Oivil Code and i;lection 818 ,of the Code of Civil are re-enactments of the acts of 1850 (the common law) and 1851, respectively. and section 813 of the Code of Civil Procedure,being the latest declaration of the will of the legislature, should therefore prevaiL

.. SAME-M,ARITllimLIIlINS-MASTER'S WAGES.

JnAdmirnlty. S.uit by Charles Haritwen against the 3team schooner Louis Olsen for wages as. waster. Exceptions to libel. Overruled. &Eell8. for lib.elllut. W. W. DaoidBon, for respondent·
·MORROW, District Judg.e. This suit is brought by Charles Haritwen against the steam schooner Louis 0ls.en, to recover the sum of $1,396.30, claimed to. be due the libelant as wages. The claimant excepts to the libel on the ground that it appears from the libel that whatever wages