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vention, consisted in a spring of a peculiar construction, designed to be used with cultivators having vertically swinging beams. Previous to his invention, as both the patents state, springs had been applied to such cultivators to assist in lifting the beams, and Wright's entire invention consisted in a peculiar construction of such springs. He attempted to patent the same spring in combination with the same elements in both patents. The court said of the patents:

“The patent of 1879 thus embraces both the lifting and the depressing effects or operations of the spring device, while that of 1881 seeks to cover only the increased lifting effect of the same device. The first patent clearly includes the second. No substantial distinction can be drawn between the two which have the same element in combination, and the same spring arrangement and ådjustment to accomplish precisely the same lifting effect, increasing as the beams are raised from their operative positions. The matter sought to be covered by the second patent is inseparably involved in the matter embraced in the former patent, and this, under the authorities, renders the second patent void.”

The opinion treats the case as one where the patentee, having described and claimed a spring which was capable of performing two functions, attempted to patent it again as one capable of performing only one of the two functions. That the court regarded the second patent as merely for one of the functions of the device patented in the first patent,-in other words, as for a different use of the same invention,-is indicated by the following language in the opinion:

“The prior invention covered the means, and the only means, by which the results sought by the patent of 1881 were to be accomplished; and it is settled that the patentee of such prior device would be entitled to all of its uses, whether described or not. Roberts v. Ryer, 91 U. S. 150; Stow v. Chicago, 104 U. S. 547. Under these authorities, a single element or function of a patented invention cannot be made the subject of a separate and subsequent patent; and it therefore follows that this increased lifting effect of the spring device sought to be covered by the 1881 patent, being clearly shown and described in the specification, drawings, and claims of the 1879 patent, was not the subject matter of a valid patent.”

The general question under consideration was before this court in Electrical Accumulator Co. v. Brush Electric Co., 2 C. C. A. 682, 52 Fed. 130. In that case the patent in suit (No. 337,229) was applied for June 13, 1881, but, owing to an interference proceeding, was not issued until March 2, 1886. Meanwhile a division of this application was applied for June 15, 1882, and patented July 4, 1882, in letters patent No. 260,653. Upon this division a number of the specific features of the general invention were selected, claimed, and patented. These features consisted of the subordinate invention in which the plates were constructed with shelves or "étagerès” for holding active or absorptive material. It was urged that this patent invalidated the later patent, because it described the broad invention claimed in the later patent, and claimed certain parts of it. The court, referring to this argument, said:

"No. 260,653 stated on its face that it is a division of Case I,m which other features of the invention were claimed, so that the public was not misled into the idea that unpatented portions of the invention had been abandoned. The specification, although the broad invention is described, and the claims

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show that the patent is for the étagère-like form or series of shelves in wbich the finely-divided lead of Case I was held. If letters patent were to be treated by courts in the critical and hostile spirit wbich a plea in abatement formerly encountered, the contention of the defendant would have technical importance, but courts do not construe letters patent for the purpose of their destruction. The history of No. 260,053 entirely contradicts the theory of its breadth. The broad invention was the subject of Case I. Pending its consideration in the patent office, a subordinate claim became the subject of interference, upon which a patent was issued, which proclaimed its divisional character. Subsequently the patents were issued upon the broader claims which had lingered in interference in the patent office, and it is now contended that the main invention has been, in fact, included in the claim for a series of shelves which held finely-divided lead. Such a construction is not demanded by decided cases, or by known principles of law, and a limited construction, in accordance with its apparent scope, will therefore be placed upou lo. 260,653."

Applying the principles which have been stated to the case in hand, its solution is not difficult. In patent No. 397,451, although the elements of the claims of the later patent relating to the switch box and centralizing spring were described and illustrated, the inventions claimed were distinctly and specifically for structural improvements in the devices patented in No. 424,695. The switch claims all relate to special supplementary improvements in the form of switch plates which enable the trolley to pass into the switch, and, without binding in turning a sharp curve, to follow with certainty the proper branching conductor. The trolley claims relate to certain special and supplementary features which make the trolley arm adjustable as to length, or adjustable as to tension. As the expert for the defendant stated, its claims, so far as they relate to the switch and to the trolley, do not cover the devices of No. 424,695. They cover the improvements, and nothing more.

These conclusions lead to a reversal of the decree, with costs of the appeal to be paid by the complainant. Upon filing a proper disclaimer as to the claims which, according to our judgment, are void, the complainant will be entitled to a decree for an injunction and accounting in respect to those which we have held to be valid and infringed, but without costs of the suit.

The decree is accordingly reversed, and the cause remitted to the circuit court with instructions to proceed conformably to this opin




The Roemer patent, No. 314,724, for a patent for an improvement in bag or satchel handles, consisting in a combination of strap and metal plates arranged on opposite sides thereof, with the edges of the strap projecting beyond the plates, and a covering secured to such edges, if valid at all, must be confined to the precise devices mentioned in the claims, and is not infringed by a handle having but one metal plate. This was a suit in equity by William Roemer against T. B. Peddie & Co. for alleged infringement of a patent for an improvement in bag or satchel handles.

R, Wayne Parker, for complainant.
Louis C, Raegener, for defendant.

ACHESON, Circuit Judge. If it be conceded that patentable novelty is disclosed by the patent in suit, still its claims must be construed strictly in view of their terms and the prior state of the art. Wright v. Yuengling, 155 U. S. 47, 15 Sup. Ct. 1. The inven. tion in question is for an improvement in bag or satchel handles, and the patent (No. 314,724) was granted to the plaintiff, William Roemer, on March 31, 1885. The plaintiff's patent had been preceded by a number of patents relating to the same subject matter, and those earlier patents, in connection with the actual manufacture of such handles, had greatly limited the scope of invention. This fact Mr. Roemer himself seems to have recognized, for, after stating that the object of his invention was "to increase the strength of the handles, and to reduce the cost,” he adds that "it consists in the arrangements and combinations of parts, substantially as will be hereinafter set forth, and finally embodied in the clauses of the claims." The specification then, after referring to the drawings, proceeds thus:

"In said drawings, a is a strap or center piece, preferably of leather, and b, c, are oppositely concaved strips of iron or other suitable metal, between which the said center piece is clamped, the edges of the latter projecting beyond said plates, so that the outer or inclosing leather or pieces of the handle may be sewed or otherwise secured thereto. As intimated, the clamping plates are oppositely concaved, to give strength and rotundity to the handle, both at the top and on the under side thereof. The plates are longitudinally bent or curved, to give the usual shape to the handle. At or near the ends the plates are perforated, and the upper plate bent around to orerlap the under plate, forming loops for the rings, f. Rivets, g, pass through the perforations, and hold the plates together. The handle is then inclosed with upper and lower pieces, d, e, the edges of which are secured by means of lines of stitching, or otherwise, to the projecting edges of the pieces, A."

The claims are in these words: "(1) The improved handle, consisting, essentially, of a strap, metal plates arranged on opposite sides thereof, to give strength to the handle, the edges of the said strap, a, projecting beyond said plates, and a covering secured to said edges, substantially as described.

"(2) In a bag handle, the oppositely concaved plates, b, c, having a projecting strap or piece therebetween, projecting to receive a covering, and said covering, said parts being arranged and combined substantially as set forth."

Now, it was very old to employ a metal skeleton for the handle, to give it the desired strength; a core of wire or a metal strap or band being thus applied. The Lagowitz & Lieb patent, of 1876, shows a curved round handle, formed from a single piece of sheet metal. The Chapman patent, of 1878, shows a bag handle constructed of two metallic sections or plates, fitted together to form, respectively, the upper and under sides of the handle, the ends of these sections being bent into loops around the suspending rings; and the patent states that both sections may be covered with thin leather to com: plete the resemblance to a stitched leather handle. The only thing here lacking to anticipate Roemer is the strap or center piece. One of the well-known prior constructions was a rounded bag handle, composed of a center strap piece of leather and two fillings of paper, in the form of half rolls, one laid against the upper side of the center strap, and the other against the under side of the same; the center strap having projecting edges, and the handle being covered with layers of leather stitched to the strap. The proofs disclose other forms of handles, which need not be discussed. Those already mentioned suffice to show that, if his patent can stand at all, Roemer must be confined to the precise devices mentioned in his claims. Boyd v. Tool Co., 158 U. S. 260, 15 Sup. Ct. 837.

Thus construed, Roemer's claims, in my judgment, do not cover the defendant's handle, which does not have "metal plates arranged on opposite sides” of the strap, as mentioned in the first claim, nor "the oppositely concaved plates, b, c, having a projecting strap or piece therebetween,” as specitied in the second claim. The defendant's handle has an upper metal plate (not substantially different from that of Chapman), and under this a metal strap. It has not, however, an under metal plate corresponding to Roemer's plate, c. Instead of this under plate, it has a filling of paper, which gives the desired rotundity to the under side of the handle. If this roll of paper could be regarded as the equivalent of Roemer's metal plate, c, it is very hard to see how his patent could be saved at all, in view of the prior construction already mentioned, wherein the handle was made with a central leather strap placed between two oppositely concaved paper fillings.

Let a decree be drawn dismissing the bill, with costs.

ALLINGTON & CURTIŞ MANUF'G CO. et al. v. LYNCH et al. (Circuit Court, D. Connecticut. January 8, 1896.)


Where a preliminary injunction is sought upon the strength of a prior adjudication, the defense of new evidence of anticipation must be made out by such cogent and conclusive proof as to convince the court that,

If presented in the former case, it would bave led to a different conclusion. 2. SAME-Dust COLLECTORS.

Preliminary injunction granted to restrain infringement of claims 1, 2, and 3 of patent No. 403,362, claims 1 and 2 of No. 403,363, and claim 4 of No. 403,770, granted to 0. M. Morse, and claim 4 of No. 409,465, granted to N. W. Holt, for improvement in dust collectors. This was a suit in equity by the Allington & Curtis Manufacturing Company and others against Arthur C. Lynch and George W. Christoph for alleged infringement of certain patents for improve ments in dust collectors.

Chas. K. Ofield and Albert H. Walker, for complainants. Parkinson & Parkinson and Edmund Wetmore, for defendants

TOWNSEND, District Judge. The complainants herein ask for a preliminary injunction against the infringement of the following

claims of the following patents, namely: Claims 1, 2, and 3 of No. 403,362, claims 1 and 2 of No. 403,363, claim 4 of No. 403,770, and, claim 4 of No. 409,465. These patents cover improvements in dnst collectors, and all of them were granted in 1889. Title in com plainants and infringement are proved. The validity of these claims was sustained by Judge Grosscop in April, 1894, after a protracted and thorough hearing. Knickerbocker Co. v. Rogers, 61 Fed. 297.

The sole defense relied upon at this hearing is certain new evidence of anticipation. A portion of this new evidence was made the basis of a motion to Judge Grosscup for a reargument, which motion was denied. The burden is upon the defendants to support this affirmative defense by such cogent and conclusive proof as to convince this court that, if it had been presented upon the former hearing, it would probably have led to a different conclusion.

In several cases the courts have held that such defense must be established beyond a reasonable doubt. Accumulator Co. v. Consoli. dated Electric Storage Co., 53 Fed. 800; Edison Electric Light Co. v. Beacon Vacuum Pump & Electrical Co., 54 Fed. 679; Edison Electric Light Co. v. Electric Manuf'g Co. (1893) 57 Fed. 616; Electric Manuf'g Co. v. Edison Electric Light Co. (1894) 10 C. C. A. 106, 61 Fed. 834; Philadelphia Trust, Safe-Deposit & Insurance Co. v. Edison Electric Light Co. (1895) 13 C. C. A. 40, 65 Fed. 553. The new evidence submitted fails to meet the requirements of said rule. It is presented generally, under the head of the Post & Co., Dueber, and Wooster defenses, by depositions and affidavits tending to show that, prior to the patented inventions, anticipating collectors or separators had been constructed and operated in certain factories and mills. The principal witness for defendants is Thomas Lee, the maker of the infringing apparatus in this case, and who is defending this suit. He claims that the separators constructed by him prior to 1889 for Post & Co.'s bufting and polishing rooms, and for the Dueber Watch-Case Manufacturing Company, contain substantially all of said patented improvements. It is admitted that, if his state ments are true, the claims in suit are void. But it appears that, although during the years 1888, 1889, and 1890, said Lee bought patented dust collectors from the complainants herein, he never stated that he had any knowledge of such a collector as he now claims he made in 1879 and 1882. He did not apply for a patent therefor. He made no other similar collectors between 1882 and 1887, and said Post & Co.'s collector was used only for about a year, and was not removed to or duplicated in their new factory. Furthermore, Lee contradicts himself in his various affidavits. His testimony is unsupported, except by oral evidence. It is contradicted by the affidavits of the assistant superintendent of said factory, and by workmen employed in running said buffing and polishing ma: chines, and the then president, secretary, and others stated that they had no knowledge of the existence of any such collector; and, although some of these witnesses have since made affidavits qualifying in some respects their prior statements, it is at least not clear, from a consideration of the whole evidence, that defendants have proved the existence of an anticipating device in the Post & Co. fac.

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