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No. 497,294, granted and issued to one Samuel J. Acheson, of Plainfield, N. J., under date of May 16, 1893, for an improvement in ingrain carpet fabrics.”
If this specific admission conflicts with the general denial, the former controls and nullifies the latter. Hence two questions arise: (1) As matter of fact, does manufacture under the Acheson patent involve use of the invention covered by the first claim of the Hardwick patent? (2) As matter of law, may the court determine the preceding inquiry by its own unaided comparison of the two patents?
1. Comparative examination of the Acheson and the Hardwick patents makes it quite evident that the fabric described in the former embodies the invention covered by the first claim of the latter. In the specification of the Hardwick patent it is stated:
“One object of my invention is to provide for greater variety than usual in the coloring of a two-ply ingrain carpet fabric, and another object is to attain this result without unduly increasing the expense of the fabric. I at. tain the first of these objects by increasing the number of weft or filling threads in the set from four to tive; two threads of the set appearing in one ply, and three in the other ply.
In the diagram, Fig. 1, W, R, O, D, and B, represent five weft or filling threads, colored, say, wbite, red, olive, drab, and black, respectively.
"One of the advantages of my invention is shown in Fig. 2; the pattern there illustrated having a groundwork of solid color, with figure containing a spot of ordinary ground of two colors, the effect of solid color being obtained by using an extra weft of the same color as one of the regular groundwefts of the fabric. Solid colors in the figure may, as will be evident, be obtained by using an extra weft thread of the same color as one of the regular figuring wefts. In Fig. 1 the sets of threads are separated by dotted lines, and it should be understood that the arrangement of threads in any set may be repeated any desired number of times in a pattern; the diagram simply showing different ways in which the threads can be combined, without any attempt being made to show the actual succession of threads in a definite pattern."
These extracts relate to, and make perfectly clear, that object of the Hardwick patent which is the subject of its first claim; and to its "second object,” which is the subject of a claim not sued upon, no reference need be made. Neither is it necessary to recapitulate all that is contained in the Acheson patent, from which it appears that it, also, proposes "a two-ply ingrain carpet fabric, having the weft threads divided into sets of five, of which three are in one ply, and two in the other, substantially as set forth" in the Hardwick patent. It will suffice to mention that, in the Acheson specification, it is said, in describing one of the figures representative of his alleged in: vention, that "each set comprises * * * five wefts, whereof two are in the face ply, or weft plane, and three whereof are in the back ply, or weft plane." This language is substantially the same as that of the claim in suit. That it describes the same thing cannot be doubted.
2. The point more strenously urged on behalf of the defendants is that "the fact that defendants' fabric is patented is prima facie proof that it does not infringe complainant's patent," and that, therefore, it is not competent for the court, upon inspection of the patents alone, to adjudge infringement. This contention might be sustained in some cases, but it cannot be in this one. In this case, each of the two patents is not for a specific and distinct addition to the art as it existed before either of them was granted. The patent set up by the defendants is manifestly for an alleged improvement upon the Hardwick invention, the use of which it necessarily involves. Therefore the authorities cited by the learned counsel of the defendants are inapplicable; the precise question in this instance being, not whether the defendants' patent is invalid, but whether they, by reason of their ownership of that patent, can lawfully use the invention of Hardwick without his consent. And to this question both reason and authority call for a negative answer. Cantrell v. Wallick, 117 U.S. 689, 694, 6 Sup. Ct. 970.
The defendants' avowal that they have manufactured according to the Acheson patent challenges a comparison of that patent with the one in suit, and I am at a loss to perceive why that comparison may not, in so plain a case, be made by the court, unaided by experts. Their opinions would not be conclusive, and, if favorable to the defendants, could not prevail against the convincing testimony of the
documents themselves. Doyle v. Spaulding, 19 Fed. 744, 748; Hayes v. Bickelhoupt, 23 Fed. 184; Freese v. Swartchild, 35 Fed. 142; Seymour v. Osborne, 11 Wall. 545; Manufacturing Co. v. Gugenheim, 3 Fish. Pat. Cas. 427, Fed. Cas. No. 10,954. Decree for complainant, in the usual form.
CARY MANUFG CO. v. DE HAVEN.
(Circuit Court, E. D. New York. January 29, 1896.) PATENTS-ANTICIPATION-Box STRAPS.
The Cary patent, No. 403,178, for a box strap having interlocking bosses struck up in it, for more strongly joining the ends, held not anticipated, valid, and infringed. 58 Fed. 786, reaffirmed. This was a suit in equity by the Cary Manufacturing Company against Hugh De Haven for alleged infringement of a patent relating to box straps. A preliminary injunction was heretofore granted (58 Fed. 786), and the case is now on final hearing.
A. G. N. Vermilya, for plaintiff.
WHEELER, District Judge. This cause has been before heard on a motion for a preliminary injunction against infringement of the plaintiff's patent, numbered 403,178, for a box strap having interlocking bosses struck up in it, for more strongly joining the ends. Nothing really additional has been brought to this hearing in chief, beyond more elaborate presentation. Prior bands of brass are produced which are ornamented with raised bosses, that might interlock, because they were so struck up in thin metal, uniformly, that they could be put together in that way; but they were never intended to be, and are not shown to have ever been, used in that way, or for such a purpose. They do not show an interlocking box strap, nor any binding strap. One figure of the drawing of the Tweddle patent, for a barrel hoop, shows a single part of a hoop with bosses evenly spaced, which might interlock with others made in the same way on a similar part. But the bosses of that patent are for holding the hoops down on the barrel by their shape, and such interlocking is not any part of the thing patented; nor is it described, or even alluded to, in the specification, or otherwise, in any part of the patent. This falls far short of showing interlocking bosses. These things are understood to be the ones most relied upon to defeat the patent, and they all appear inadequate for that purpose. The con clusion reached is the same as before. Decree for orator.
THE CITY OF ALEXANDRIA.
ALEXANDRE et al. v. THE ARGUS.
(District Court, E. D. Pennsylvania. January 24, 1896.) 1. COLLISION-STEAMER WITH Tow-LIABILITY OF TUG.
A steamer colliding with a dredge in tow of a tug was held in fault, and compelled to pay the entire damages, the tug not being found within the jurisdiction so as to make her a party. Afterwards the steamer's owners libeled the tug to enforce an alleged right of contribution iu respect to the damages so paid. The steamer received no injury by the collision. Held, that no lien against the tug arose in favor of the steamer, in her own right, and that, if she had any remedy, it was by way of substitution to the lien which the tow may have had against the tug be
cause of a fault committed by the latter. 2. SAME-TUG AND Tow.
A tug performing towage services, under a charter which places her movements absolutely under the control of the tow's officer and pilot, is not responsible to the tow for any movements which result in a collision with a third vessel.
This was a libel by Francis Alexandre, owner of the steamship City of Alexandria, against the steam tug Argus, to enforce an alleged lien arising from a collision of the steamer with a dredge in tow of the tug.
Robert D. Benedict, J. Warren Coulston, and Alfred Driver, for the City of Alexandria.
John F. Lewis and Henry R. Edmunds, for the Argus.
BUTLER, District Judge. The following statement of facts is adopted:
On September 21, 1886, a libel was filed in the district court of the United States for the Southern district of New York by the Deep Sea Hydraulic Dredging Company, owner of the dredge Queen, against the steamship City of Alexandria and the steam tug Argus, to recover damages for the sinking on September 9, 1886, of the Queen, while in tow of the Argus, by a collision with the City of Alexandria. The libel alleged specific faults contributing to the collision on the part of both vessels.
Process was issued to the marshal, and the marshal made return on the process that he had been unable to find the Argus in his dis. trict. The owners of the City of Alexandria appeared and gave bonds for her, and they answered the libel.
The cause was tried on the issues raised by the libel, and the answer of the City of Alexandria and the amended libel and amended answer. On June 17, 1887, the judge made his decision (31 Fed. 427] and 'on the 11th of October, 1887, the district court made its
interlocutory decree holding both vessels in fault and directing an apportionment of the damages. And on January 2, 1891, the court made its final decree in favor of the libelants, against the Alexandria, for the sum of $26,959.92, which sum was paid on January 12, 1891, with interest, in satisfaction of the decree. On August 15, 1887, after the rendering of the decision, but before the entering of the decree, the present libel was filed by the owners of the Alexandria against the Argus, by which the dredge was being towed at the time of the collision, averring that the Argus was in fault in respect to the collision and ought to contribute to the damages, and praying for a decree accordingly. The Argus was seized under the process in the action, and sold under order of the court for $16,150. Before the answer was filed, the libel was amended, by alleging the final decree in New York and payment and satisfaction thereunder. Afterwards on March 23d, the Argus filed an answer denying liability. The cause being thus at issue a petition was filed on September 2, 1892, by certain insurance companies, having insurance on the dredge when lost, asking to be allowed to intervene. To this petition the libel. ants excepted. The exceptions were dismissed after hearing, reserv. ing to the libelants a right to press them on final hearing. They were not, however, so pressed.
The libelants must of course show a lien as the foundation of their suit. As I understand their position it is that the Argus was jointly responsible for the collision, and that a lien in their favor against her resulted from the collision (although the Alexandria sustained no damage thereby) for such sum as it might be decreed to pay the Queen on account of the Argus' fault; and that they may therefore sue the latter as they have done, and recover accordingly.
The position of the insurance companies is that the Argus was in fault, and that having paid the insurance on the Queen and taken an assignment of her rights, they may sue upon her lien against the Argus, and recover what the Queen might have recovered thereon.
In my judgment, no lien accrued to the Alexandria from the collision. No authority in support of the libelant's position is cited, and I do not know of any which tends to sustain it. The position seems unreasonable. The Alexandria was not injured by the collision. The injury which her owners have sustained, if they sustained any of which they can complain, resulted from the failure to attach the Argus in the Queen's suit, the subsequent decree of the court and the payment of money under it which the Argus should have paid. They were not hurt until required to pay; and it would not be known that they would be so required until the decree was entered. Their ground of complaint against the Argus is not, therefore, that she injured them by contributing to the collision, but by failure to pay damages to the Queen which she should have paid. I am satisfied that if the libel can be sustained it must rest on the Queen's lien (if she had any) against the Argus. If a lien resulted to the Queen from the collision, against the Argus it is possible that the