SHIRLEY V. SANDERSON.
905
in actual or constrnctive custody; that there is nothing to discharge him from; and that it would be a waste of time to pursue the habeas corpus proceedings any further. Under 752 of the Revised Statutes the writ of habeas corpus is granted "for the purpose of an inquiry into the cause of restraint of liberty." There is not now in this case any such restraint of liberty" or any such state of facts, as requires that this court should pass on the question as to'whether the defendant ought originally to have been held or committed to await the action of the grand jury, even if it would at any time have paas13d on that question. The defendant was held and cOlDQlitted only, to await the action of the grand jury; and, as no indictment or information has been filed against him, .he .is entitled to be discharged ,on that ground. and an order to that effect and for that cause may b.e entered if desired. Motion denied.
SHIRLEY
v.
SA.NDERSON.
(Cirouit OO'll/ft,8. D. New, YfYT'k. February 111,1881.) 1. 2. LETTERS PATENT-!MPROVEMlmT IN
LAm> CHIMNEYB. Reissued letters patent, granted May 8, 1877, to Frederick S. Shirley, for an improvement in lamp chimneys, are valid.
SAME-AFFIRMATIVE DEFENCE-BURDEN OF PROOF.
The burden of proof is on the defendant to establish his afllrmative defence beyond a reasonable doubt.
F. Frank Brownell, for plaintiff. George R. Dutton, for defendant. BLATCHFORD, C. J. This suit is brought on reissued letters patent granted to the plaintiff May 8, 1877, for an "improvement in lamp chimneys," the original patent having been granted to Robert K. Croaby, as inventor, July 14, 1868. The specification of the reissue says that the invention"Consists in enlarging the chimney at right angles, or nearly right angles, at or nearly on a level with the flame, and giving the upper part of the chimney a conical form from t.his enlargement to the top, for the purpose or securing a larger and steadier flame, and making a shorter chimney."
It proceeds: "A represents any chimney which has a circular flange or lip made on its lower end, for fitting down over and around the burner. This flange or lip, B, is here shown as perfectly straight, and adapted to one form of burner only; but it is evident that this part of the chimney may be made with the outwardly turned flange, so as to fit other common burners. At or nearly on a
906
FEDERAL, REPORTER.
level with the flame, the chimney is abruptly enlarged outward, at or nearly at right angles, to any suitable degree, so as to afford a larger space for the flame to spread in; and this horizontal portion. c, forms a radiating surface, through which the light is freely reflected downward from this enlargement. The chimney tapei'S upwards towards the top at any suitable angle, where it may be of any desired size, the sides forming straight or nearly straight lines. By the above-d'escribed construction an unusually large and expanded flame is produced, which is not only very steady, but not easily blown out by a blast of air. The conical contmction upwards makes the draft regular and free from eddies, and, should a puff of smoke suddenly start upwards, it is not thrown agains't the inside of the chimney, but passes out freely without coming in contact thel;e'ivith." '
The claim is as follows: "A lamp chimney having an abrupt or nearly right-angled enlargement on, or nearly on, 8 level with the flame, in combination with the conical sides ,and contracted opening at the top, substantially as set forth."
It is plain that the abrupt enlargement is required to be about on a level with the flame. In the drawing this result is secured by having a straight circular flange on the lower end of the chimney, which raises it up so that the abrupt, enlargement is about on a level with the flame. If the chimney were sllDk by dispensing with the straight flange, so as to bring the abrupt enlargement substantially below the level of the flame, the structure would not be within the claim,;, The defence in the case is alleged want of nov-eltY. Mayer testifies that while he was in the employment of Christopher Dorflinger, a glass manufacturer, from 1852 to 1862, Dorflinger made and sold an abrupt right"thousands of dozens" of lamp chimneys angled, or nearly so, enlargement at or nearly On a level with ,the flame, with straight conical sides and contracted openingf}t thEltop;" and that they were packed and shipped away to custo,mers. Not a chimney then made is produced, but a chimney freshly made (No.5) is produced as showing what he says was then made. 'It is a chimneywhich contains the plaintiff's invention, if us.ed with the, enlargement about on a level with the flame. Mayer says that three sizes of the same shape were made by Dorflinger; that they wore made in 1858 and part of 1859, by Dorflinger;and that they werem&.de and sold from 1865 on by the witness and one Koelsch, as Mayer & Koelsch. He says that those made by Mayer & Koelsch had a lip on the bottomthat is, a horizontal lip, extending outwardly from the bottom of the straight circular' flange; that they were made by Mayer & Koelsch for Henry Russell & .Co,., from ,wood models furnished by the latter, and were not made by them for anyone else; and that they made about 2,OO()' packages of them from 1865 on, for at leastlO years. Mayer &
SANDERSON.
.t)07
Koelsch were both of them in the employ of Dorflinger in 1858 and 1859. Rut:lsell testifies that as early as 1865 Mayer & Koelsch made lamp , chimneys for Henry Russell & Co; almost precisely like No.'5, but with a ahorter neck than No.5, and with a lip at the base; that' they made that shape for two years; that T. D. Moore & Co., a firm with which he (Russell) was clerk, bought in 1860 and 1861, from Dorflinger & Co., chimneys like No.5, without the lip, which were used for the Dietz burner; and that Moore & Co. had such burners made for two' years or more. When asked to give the names of parties to whom they were sold, he names Stanford & Co., of San Francisco and Melbourne, but no others. He testifies that those Russell & Co. had made by Mayer & Koelsch were fitted for other kinds of burners than the Dietz burner. None Of these old chimneys are produced. No books or papers are produced containing any record evidence as to the shapes of these old chimneys. ,No testimony of any customer who bought any of them from Dorflinger, or from Russell & Co., is produced. Everything depends on unaided memory as to exact shape. Dorflinger, although his name is set up in the answer, was not produced, and no sufficient excuse was shown for not producing him. Testimony to rebut this evidence of Mayer and of Russell in the case. Schneider, who saye that he is acquainted with all chimneys which have been sold largely since 1861, says he never saw one like No.5; that he sold the Dietz burner in large quantities, and chimneys for it; and that a,'bulb chimney was used for it, and no other chimney, so far as he knew. Tripp, familiar with chimneys frotn 1863, says he never saw a chimney like No.5 before or during 1865; that he is familiar with the Dietz burner, and never saw any chimney like No.5 sold in connection with that burner; and that prior to 1867 the shape the nearest he saw to the shape of No.5 was a bulb chimney, with a lip instead of a neck. Dietz, who made the Dietz burner, says he never knew of chimneys like No.5 being sold in connection with it. Brox, who worked blowing gtass for D.orflinger, in Dorflinger's factory, from 1857 to 1860, and from 1861 to 1R66, says he does not remember seeing there a chimney like No.5, with a square shoulder; that Mayer was employed in making pots for Dorflinger, in the pot-room; and that the only chimneys Dorflinger made were bulb chimneys and straight tubes. Morey, a dealer in lamp chimneys from 1858, says that he does not know any chimney like No.5, and that he never saw any chimney like Crosby's before Crosby's was introduced. Crosby, the inventor, acquainted with the lamp and chimney bUBlllesB since 1855, in Boston, New York, New Bedford,
90&
FEDFlRAL REPORTER.:
Philadelphia, Pittsburgh, and Wheeling, says he never saw or heard of a chimney with the abrupt enlargement before his. Martin, acquainted with the lamp shade and chimney business for 30 yeers, in Boston and New York, and in New Jersey, and acquainted with the chimneys in the New York market from 1863 to 1867, says he never saw any chimney like No.5 in the market. The plaintiff, familiar with lamp chimneys from 1864, says that no chimney with an abrupt enlargement at the base was introduced to the trade before 1873. In regard to chimneys allegt3dby Russell to have been sold to Stanford & Co., of San Francisco, Day, who has been acquainted with the lamp-chimney trade there since 1855, gives sketches of all the chimin the San FranciscomarkE}t from 1858 to 1868. No neys one of them is shown to contain the patented invention. cIt is contended, for the ddenda.nt l that the positive testimony of Mayer and of Russell oOught to outweigh the negative in, reply. The burden of p.roof is On thE! defendant to establish affirmatiyely the defence of. want ,'Of novelty beyond a reasonable doubt. It is apparent that a chimney with a right-angled enlargement too low down does not meet Crosby's invention; and the evidence tends t(j) show that all the, chimneys made for ,Russell & Co. had short necks and lips, and: that the. enlargement was not up as high as the flame. Thee ,evidence also tenda, to show that th,e chimneys testified to l1smade by Dorflinger were bulb chimneys, for the Dietz burner, and not like Crosby's. On the whole evidence, it must be held that the defence is not established. The testimony of Gillinder, Weidner, Bennett, and Brady was properly objected to as not rebutting, and because no foundation was laid in the answer for their evidence., Besides, it does not appear that either No.6 or No.7, or the Stella chimney, contains Crosby's invention. The invention is shown to be useful, and infringement is proved. There must be a decree for the plaintiff ,and for a reference,as to profits and damages, and for a injunction, with costs.
BUTEO V. MOLL.
909,
BUTEO
and another
'V. MOLL.
(Oircuit Court, 8. D. New York. February 18,1881.) 1. LETTERs PATENT-iMPROVEMENT IN CORDS FOR WRAPPING THREAD.
Heissued letters patent No. 6,751, granted November 16,1875, to Hugo Butro, for an improvement in cords' fot wrapping thread, are not infringed by the device of Aug1\St :Moll. 2. SAME-ExTENT OF THE PATENT.
In view of arrangements already In the Tel"I'Ine mn!!t he lImited to cover. ing sections strictly attached and requirW& cuttihg,w dlltal:J..Illiem.
J. P. Fitch, for plaintiff.
S. Greenbaum, for defendant. , C/J. This suit is brought on reissued letters patent No. 6,751, granted to Hugo Butto, No"ember 16, 1875, for an "improvement in cords for wrapping thread," the original patent, No. 130,672, having been granted to bim August 20, 1872, and, reissued. to him, as No. 5,725, January 6,1874. The following is the specification of reissue No. 6,751, including what is outside of brackets and what isinside of brackets, and omitting what; iEi in italics: BLATCHFORD,
"This invention relates to a new form for holding [and a new method of putting up] braided or othedhreads, and [it1 consists in [pasteb<lard. card, or other equivalent material, notchedJ notching a card at the ends [so as} to produce visible and accurate subdivisions of the skeins wound thereon; {and also in perforating or equivalently weakening or cutting such card lengthwise to allow convenient separation of anyone or more of the sections of card with the thread or skein upon it.] This is for the purpose of keeping the skeins so fully separated that they cannot become entangled,'and that they can-each skein containing a certain length of thread-be lseparated]· cut apa1't with their sections of card, [so as1 to furnish a desired measure of thread or braid. A, in the drawing, represents the card [or form] around which the braided or plain thread, cord, or tape is wound lengthwise. The ends of this card are notched, as at a a, in figure I, there being ll.S many notches as there are to be skeins or separate subdivisions wound about the card. In this manner the card is subdivided into a series of nanow sections, b b, [each] all containing [a cettain] equal [quantity] qnantitiesof the fabric; the projecting prongs, d d, between the recesses, a, keeping the sever3J. skeins properly separated. The card may be perforated [or otherwise eqUivalently weakened or cut] length wise [along a line or lines, indicated by the broken line or lines in figure 1 of the drawings, so as] to allow convenient [separation] detachment of anyone or more of the [skeins with their sections of card, b,] sections, b, with the cord on it, so that, in retail trade, the skeins can be disposed of separately without requiring their unwinding and special measurement. The [fabric is] skeins on the card may be wound [in skeins of the desired length1 upon [each of] the sections, b, [of the card, as described, and all or a part of the skeins I'emain connected together] so as to constitute [an