01:, 23:Fed. Rep. 1,95; Judge WHEELER held the second and fifth claims ofthn,reisslle to be void, on the ground that these claims were broader thrinthose of the original patent. I have carefully consfdered theseopinions, and, concnr im the'views therein expressed. The new evidence broughtfQrward by ()omplainaut in this case does llot tend to overthrow the conclusions of Judge WHEELER, because it is apparent, upon a parison of the original patent with the reissue, that these claims are void under':the,.tartthorityofMiller v. Bra88 CO., 104 U. S. 350, and subsequent caaes.:·' ' The only remaining question is whether defendant infringes claim 4 of the reissue, which is in substance the same as claim 2 of the original. The cIaimis as follows: "In an'apparatus for ligatIng gas ,by electricity. in combination with a at thegas.-burner, a lever adapted and to open and cloS,e,the stop-cock or valve.of the burp.er. and carrying the circuit-breaker, substantially as herein descrilJed." In defe.l;ldant's apparatus, which is made after the Crockett patent, bearing da.te July 17, 1883, t;he twoar.matm:esoperate to open and the gas-Yll1v6rbut there isJound no sep.arate lever toopen and close.the valve and carrying the, circuit-breaker such asJa qesOJ:ibed ill the Tirren patent. The defendant's device is so different in construction and mode of operation from that described in the fourth claim that it is clear there is no infringement. The bill must be dismissed, with costs.
CUTTER TOWER Co.
(Oirwit Oourt, D. Massachusetts. December 23, 1886.)
PATENTS FOR INVENTIONS-INFRINGEMENT-No. 16.812-EAsEL DESIGN.
In an llctionfor infringing patent No. 16,312, dated October 6. 1885, for a design for easels, the plaintiff's design consisted in the upright standards crossing at the upper ends, representing the stems and flowers of the cat-tail plant. ,Easelt' made of the nattlral cat.-tails thtlscrossingare old. In defendant's design, the st.'1ndards are not crossed. but held together by a band.Held, no infringement, since the plaintiff was not the first to use cat-tails, and defendant's design,did not infringe his specific device of crossing them.
In Equity. . C. H. Drew and W. B. l)v,r<J,nt, for complainant. C. C. Morgan and O. M. Shaw, for defendant. Before COLT and CARPENTER, JJ.
J. This suit is brought upon letters patent No. 16,312, dated October 6,1885, granted to the.complainant for a design for easels. The leading feature of:the desigriconsists in the upright standards of the easel croi'sed near their upper ends, and representing the arid flowers of the eat-tail plant Or flag. The claim is as follows:
THE BATTlE M· SPRAKER.
"The design for an easel herein shown and described, tbe same consisting of the upright standards of an easel cr()slling each other near their upper ends, and:representing the stems and flowers of the cat-tail plant Or flap'. " Ea8 made of natural cat-tails crossing each other near their upper ls ends are old. In view of this, the Crocker design must be limited to the modeM crossing the stan.dards described in the patent. In defend. ant's design the standards are not crossed,but they are held together near the top by a band, from which point, by bending, they are spread out so all to present a fan-like appearance. If Crocker had been the first to design an easel made of cat-tails crossing each other,it might properly be held that the defendant's design infringed from the general resemblance between the two. In view, however, of what was old, we have grave dOUbts whether the claim of the patent constitutes any invention; but, assuming the patentability of the design, we are clear that it must be limited to the mode of. crossing 'the standards found in the specification and drawing,and,the defendant not using any form ,of crossing the standards, there can be no infringement, and the bill must be dismIssed. .
STEBBINS 11. ,THE HATTIE
(Diatrict Oourt, B. D. New York.
December 27, 1886.)
COLLlSION-EAST RIVER NAVIGATION-Two TUGs-TUG AND PIER-STATE STATUTES:""'FAILURE TO KEEP INMm RIVER-OVERTAXING BOAT-CLost!: APPROAOR TO OTHER STEAM-VESSEL-SHEER-CROWDING.
The tug S., up the East river with a car·float in tow along-side, sheered to withm 100 feet of the New York piers, preparatory to rounding to on the Brookly sh.ore against the tide. The tug N., which was also coming up river nearer the New York shore, had followed the sheer of the S. towards New Tp;rk, and, when close to the latter shore, found herself in a pocket, betwee.I1 th!l. S. and the piers; and, being unable to back, for fear of being thrown 'against the piers, went ahead full speed, and ran into the end of Pier 42, Whereby both the tug herself and the tow were damaged. Held, that the N. was in fauIt for violating the state statute, which required her to go as near mid river as may be; and also the statute which forbids a steam-vessel under way from approaching and passin? another nearer than 20 yards. Held, fwrth&r, that the S. was in fault for unJustifiably sheering, and the N., without even a warning whistle. The damages were therefore divided. ;The settlement by a tug of her tow's claim for damages is evidence of fault on her part, in a subsequent suit by her against another vessel. Without fault or liability, there would be no subrogation on payment of the tow's demand. Being held liable, as in fault, she is entitled to recover half of the tow'lJ dl£mages.
EVIDENCE-SETTLEMENT OF CLAIM-SUBROGATION.
In Admiralty. A. B:' SteWart, for libelapt. .' .Mosher,· foJ.' clahnarite.
by Edward G. Benedict, Esq., of the New York bar.