& LINCOLN 8.BAMING-MAOmNE CO. v. AMERICAN PRINTING CO.
(Oircuit Court, .D. Ma8sachusett8. }'ebruary 18, 1884.)
The third claim of original letters patent No. 108,827 was for the combination of an annular plate with the stitching and feeding mechanism of a sewingmachine, for the purpose of guiding the fabric. The first and third claims of the reissue, No. 9,176, were for a wheel to feed as well as guide the fabric. Hdd, that the reissue, being more than a mere reproduction of the original 'patent, was invalid as against intervening rights.
In Equity. T. W. Clarke, for complamant. J. L. S. Roberts, for defendant. Before LOWELL and NELSON, JJ. NELSON, J. The plaintiff sues for the infringement of reissue patent No. 9,176, granted to Rayer & Lincoln, assignors by mesne assignments to the plaintiff, April 27, 1880. The original patent, No. 108,827, was dated November 1, 1870. In the original patent the invention is described as "a new and improved sewing-machine attachment." In the specification, the invention is said to consist in certain improvements by which sewing-machines may be adapted to sew the ends of pieces of goods of the same width, one pair after another continuously, and to stitch all kinds of goods where long, continuous seams are required. The invention is described with reference to any sewing-machine of suitable construction and size. D is an annular plate supported in a vertical position by rollers hung in a frame, and so set that. its upper edge is behind the presser·foot a.nd needle-bar of the sewing-machine. In front of the plate there is affixed to the frame a shield, covering all but the upper part of the plate. A toothed ring is secured to the back of the plate, and meshes into the teeth of a mounted on an arbor, which derives motion from the driving-shaft of the sewing-machine. Upon the edge of the plate are hung a series of hooks or points, which can be shifted to conform to '. the width of the fabric. The pieces to be sewed together are hupg upon the hooks, and rest upon a shoulder projecting Irom the plate, and upon the upper edge of the shield. A winged wheel working in front serves to throw the sewed fabric off the hooks. ,When in operation, the plate is designed to move correspondingly with the feed of the sewing-machine. As the plate revolves with the action of the sewing-machine, the pieces are .carried along to and past the sewing-devices"and when sewed are thrown off as they arrive at the winged wheel, the process being capable of continuolls repetition indefinitely. The third claim of the original patent is thuB stated:
"( 3) The combination with stitching and feeding mechanism, substantially such as described, of a continuously revolvinll annular fabric-guide. D, as and for ttl' purpose set forth."
BAYER & LINOOLN SEAMING-MAOHINE 00. V. AMER. PRINTING 00.
In the reissue patent the invention is oalled "an improvement in sewing-machines." In the specification it is described with reference to a Wiltlox & Gibbs sewing-machine having the usual rotable hookshaft and needle-bar, with needle attached. In describing its advantages the inventors state:
"In sewing-machines containing the usual intermittingly rotated wheelfeed, variations in speed affect, momentum, the length of stitch, and the power required to run such a feed, and wear of machinery, and the cost of mechanism, are all greater than in this, our plan, wherein the feed is continuous, which always insures an equal length of stitch, and a substantially uniform expenditure of power. With an annular feeding-plate, as described, provided with points or hooks to penetrate and hold the fabric as it is moved along uuder the needle, we have combined the well-known Wilcox & Gibbs class of machine, the hook or looper of which, 3S is well-knowD, rotatl'ls COlltinuously in one direction, and may be run at the highest speed.»
The first and third claims, to which alone the controversy relates' are as follows:
"(1) The within-described apparatus for sewing together the endso! pieces of fabric for factory use, it consisting essentially of the stitch-forming mechanism shown and described, the rotable annular feeding-wheel provided with hooks to penetrate, carry, and present thefabric positively to the action of the said stitch-forming mechanism, and means to operate the said feeding-wheel continuously 3S described. .. "(3) The combination, with stitcbing mechanism substantially such as described, of the continuously revolving annular baster plate or wheel to feed the fabric, and mechanism to continuously revolve the baster-wheel, SUbstantially as described."
The position of the plaintiff is that the third claim of the original patent is substantially reproduced in the first and third claims of the reissue. It is obvious, from the description given in' the original specification, that the thing patented was a device to be attached to a sewing-machine having a feeding mechanism of its own, and was designed to carry along the pieces of cloth to be stitched together by a movement to correspond with the movement of the feeding mechanism of the sewing-machine. It is called "a sewing-machine attachment," and its object was to serve as a guide and support to' the pieces of cloth as they were carried along by the sewing-machine. It is apparent that the first and third claimso! the reissue, taken in connection with the specification, cover a combination different from this. The combination, with the stitching and feeding mechanism of a sewing-machine, of the annular plate,D, to guide the fabric as it is carried along by the feeding mechanism of the sewing-machine, which was in substance the original claim, has been expanded into a combination'with the stitching mechanism alone of asewing,.maohine, of a feeding-wheel to feed· as well as to guide: the fabric, working independentlyof,and in substitution for, the feeding mechanism of the sewing-machine. A new function has been added to the plate, D. It is no longer a mere attaohment toacompletesewing-machine, and aguiq.e,and support to the cloth as it is moved along in. the ma-
c It· has become itself; Ii feeding -apparatus for a sewing-machine,--a. thing quite different'from the original invention. Under the rule' established. by the recent decisions of the supreme court, the plaintiff's reissue patent was taken out too late, and must be held to be invalid. Bill dislllisseq., with costs.
, (DiBtrict Uourt, E. D. Virginia,February 24,1884.,
In a in admiralty where the reB is the same, and the tort and the contract for which damages are claimed arl3 the same, and where the original libel sets out matter enough by which to amend,a libel may be amended as to par. ties by'changing the character in which the libelant sues, and dismissing as to the parties who have no right to sue. 2. BAHE..... AcTION FOR DEATH CA.tllmn BY NEGLIGENOE-CONTRIllUTORY NEGLI'" Where, in a libel for damages for the Il:U)ing of a husband and father, the ferry steamerinfiicting the injury was in fault, but the deceltSed had violated rulel!! of tMmanl;1gers, forbiddiilgpassengl3T8 to step over guard-chains and passing 'oft to' the wharfbefore the boat was drawn up and made fast at the landing, in :doing which deceased received fatal injuries, but in doing so only did what men and bovs habitually and constantly did OIl tho'ferry, without reo straint or remonstrance .from the. mlUlagement, held, that this, was not such contributory negligence on the part of deceased as 10 exonerate the claimantll from responsibility in damages, the managers of the ferry having, by neglect.ing to enforce their rules, out to P6Ilsengers that there no practical danger in violating them, and thereby put the off his guard as to the 'danger attending the was habitually permitted.
In Admiralty, in a Libel for Damages. After the decision rendered in this case on the question of diction, on the fifth of January, 1884, (18 FED. REP. 918,) the libelant moved for leave to dismiss the original libel as to herself, as administratrixofWilliam H. Black, and to file an amended libelinher innividual character as widow of Black, and in her character as guardian of the two minor children of the deceased. This motion was granted t on: the ground that the res was the same, the tort'and contract on which'tbeclaim forda.mages was leased was the same, and that the prigmallibel contained all the·facts as to parties that were necessary :was'lLoolorcd man, 64 years old, who had irregular employment at $2.50>ada.yin ,the carpenter-shop of the a.t on the Nodolk side of Eli2..abeth river, somedistanca westward, of Norfolk, where he had a farm of about 120 aeres of land. ' Beturning from the navy-yard, after fail. .' . ,lWilliMQ,H. Black, whose widow, Frances Black, brings this libelt