HAMM"ERSCHLAG V. GARRETT.
the Moody tree is not the Still tree, then thel:e is no of plaintiffs' invention and they cannot complain. .' The deihqrrer to their petition:on this point.is sustained, as also to f,l1e prayer·.. The demurrer to the prayer is also well taken.
····f,
lIAltfMERSCHLA.G, 11. GAnRETT
andothers.July 1, i881.,
(Circuit (J01u·t,E. 1.
D. PennsylrJania.
.o)' DECISION-WEIGHT TO. BE GIVEN TO PREVIOUS 'C1SION IN OTHER .CIRCUIT. '
DE-
'A proper regard for uniformity of decision requires that where one circuit court bu.,. after a full discussion of the evidence,·sustained· a patent, another circUIt court should, unless plain mistake be shown, follow such decision in a suit upon the same patent in Which the same evid;ence is relied 2. IN WAXING PAPER-INJUNCTION.
·
Reissued patent No. 8,460, for improvement in waxing paper, sustained, and injunction against infringement granted, on tinal hearing; followmg a decision in Hammerschlag v. Scamoni, 7 FED. REP. 584, rendered upon a motion for a preliminary injtJnetion.
In Equity. Bearing on bill, answer and· proofs. Bill for injunction to restrain the infringement of letters patent No.. 8,4;(j{), for improvementin waxing paper. denied the 'novelty of the patent and also denied the infringement. It appeared by the proofs that, in a .suit in the United States circuit court for the southern district of York by, thel,same com· plainant against different defendants, to restrain an infringement of the same patent, the court had, upon a motion for a preliminary injunction, delivered an opinion in which, after a full consideration of the 'ments, and of the evidehce respecting the state pf the art and prior invention relied on in this suit, the complainant's patent was sustained: and the preliminary injunction granted. See report of case, Hammerschlag v. Scamoni, 7 FED. REP. 584. lfro# <t Coe and John K. Valentine, for complainant. Collier et Bell, for respondent. BUTLER, D. J. The circuit court for the southern district of New York .decided the plaintiff's 'patent' to be valid in v. Scamoni, and construed its several claims. The evidence respecting the state of the art; and prior .invention, now relied upon by the
New
.Reported by Frank P. Prichard, Esq., of the Philadelphia liar.
FEDERAL ,REPORTER.
defendant, was before the court in that case. The conclusion then reached should, therefore, be followed, unless indeed plainmistake bE: shown., A proper regard for nniformity of decision requires this. If the defendant thinks he is injured, a review can be had in the supreme court, and the snbject thus be pnt at rest. The confusion and mischief likely to result from conflicting decisions should be avoided. While there may be difficulty in distinguishing the plain. tiff's process and machinery from that described in the British letters patent No. 55, granted to John Stenhouse, we do not feel ourselves justified in saying they cannot be distinguished, as they were in the case cited, and thus disregard the decision there made.. As, respects the' question of infringement, the 'defendant's process and machinery sil1l ilar in all respects, to. that of .the in Hammer· 8chwg.v.: $camoni, that what is there aaidon this subject, arpplies with equal force here; A decree"l:llust therefore be entered for the
McKESSON (Oirc'Ui'
and another v. CARNRIOK. S. D: N8fD Yt»'k. . April 8, 1881..
By" the moulds, A," in the second claim is,meant any suitable holder of the pills, whether they are formed therein or elsewhere. ' (,'LADf 2-VALIDITY.
2
CONSTRUED.
4.
The second claim is good though the mould will not form a pm; provided, it will act as a holder for pills. 6. SAME-SA ME-COMBINATION.
The comb-bar, needles, and pill-holders form a combination; they are not a mere aggregation of parts. 6. SPECIFICATION-SURPLUSAGE.
The word " glycerine" used in the specification may be rejected as surplusage.
1.
SAME-CLAIMS.
Where the claims are clear and distinct they will govern, rather than an ambiguous specification.