EASTERN PAPER-BAG CO. tI. STA.NDARD PAPER-BAG 00.
787 Co. and
CO. and others 1J. others.
D. Ma88achU8eft8. January 26, 1887.j
In reissued letters patent No. 9,202, of May 18, 1880, to Margaret E. Knight, for improvements in machines for making satchel-bottom paper bags, the sence of the improvement is the employment, in the makinf of the diamond fold. of a finger to push back a portion of the open end 0 the tube in connection with a blade or tucking-knife, which moves under the finger. In defendants' machine the diamond fold is only partially formed by means of pincers or nippers mounted on a moving roller, which takes hold of the upper ply of the tube, and draws it a proper distance over the roller, while the under ply of the tube is held down by a spear-pointed separator. Held no infringement, the nippers mounted on the movmg roller not being the equivalent of the tinger, nor the moving roller the equivalent of the tucking-blade. 2. SAllE-ADJUSTABLE MACHINEs-DISCLAIMER. The Chandler invention (letters \latent No. 267,774, of November 21,1882, to Clarence A. Chandler) is for an Improvement on the Knight machine, by means of which different sizes of bagsca.n be made a.djustable on the same machine. This is done by makinq; one portion of the machine adjustable to the other. Held, in view of the dIsclaimers in the specifications, that the invention does not cover all mechanisms for making satchel-bottom paper bags, in which the tube-forming, feeding, and cutting mechanism, and the diamondfQld la-ying mechanism, are in a fixed frame, and the bottom-folding and past· ing mechanisms are in an adjustable frame, which is adjustable backward ana forward with relation to the fixed frame.
PATENTS FOR lNvENTIONll-SATCHEL-BoTTOM PArER BAGS-1NFRINGEMEN'l'EQUIVALENT MECHANISMS.
In Equity. bill for infringement. B. F. Thurston and Livermore &: Fi8h, for complainants. Cha:wlIu/g Smith, for defendants.
CoLT,J. The defendants are charged with infringement of the fifth claim of reissued letters patent No. 9,202, dated May 18, 1880, granted to Margaret E. Knight, and of letters patent No. 267,774, granted November21, 1882,to Clarence A. Chandler. Both patents are for improvements in machines for making satchel-bottom paper bags. The fifth claim ofthe Knighheissue reads as follows: "Tbe finger, N, or device, whetber fixed or movable, to operate upon the inner side of the tube, and bold or push back a portion of tbe open end of the tube wbile the diamond fold is being forined." In the patent the patentee says that she believes herself to be the first to invent a device to hold back or push back a point or portion of one edge o(the paper tube while the blade or tucking-knife forms the first fold. The essence ofthe Knight improvement is the employment, in the making of the diamond fold, of a finger to .push back a portion of open end of the tube in connection with a blade or tucking-knife which moves under the finger. It is manifest that the finger alone could not make the diamond fold, but it is the finger co-operating with the blade which produces the result. In defendants' machine the diamond fold. is formed, or partially fOlmed, by means of pincers or nippers, mounted on a moving'. roller,
which takes hold of the upper ply of the tube, and draws it a proper distance over the roller, while the under ply of the tubeis held down by a spear-pointed separator. In Knight's machine the blade must under the finger to make the fold, while the finger remains stationary. In defendants' machine the pincers and roller on which they are mounted move together. In the Knight machine the finger never takes hold of or grasps the paper at any point, and it could not without tearing it. In defendants' machine the pincers must take hold of and grasp the paper firmly at a certain point, and, if they relax their grasp before the mouth is formed, the machine will not work. These are some of the differences between the two machines which are apparent upon inspection and comparison. It is further urged, with much force, that the open mouth formed by the nippers, roller, and spear-pointed separator is not a diamond fold, as the paper is not creased by these means, but that it is necessary to complete the diamond fold for the blank to be compressed between the succeeding pair of rollers. A comparison of the instrumentalities employed, and mode of operation of the makes it perfectly clear that there is no infringement, whether claim 5 be construed to cover only'the nnger, or implication the finger cooperating, with the blade. In no legitimat'e sense, even upon a broad construction of the Knight patent, can it be said that the nippers mounted the equivalent of the finger, or that the upon the moving roller moving roller is the equivalent of the. tucking-blade. It is unnecessary to consider the other defenses raised in the Knight patent. The Chandler invention is for an improvement on the Knight machine, by means of which different sizes of bags can be made adjustable on the. same machine. This is done by making one portion of the machine adjustable to the (\ther. The claim is as follows:
"In a machine for making satchel-bottom paper bags, the combination of tube-formir!g, tube-feeding, tube-cutting, and diamond-fold laying mechanisms, haVing bearings in a fixed frame, with another frame adjastable backward and forward, relatively, on said fixed frame, and fixed thereto during the operation of the machine, and the bottom-folding and pastingmechanisrn borne by said adjustable fraJP.e, and adapted to cross-fold the diamond fold in two places, parallel each to the other, whereby the machine may be adjusted to make bags of different sizes from tubes or blanks of diffel'lmt width, substantially as described."
It cannot be seriously contended that the specific form of mechanisms enumerated in this claim, or the means of adjustment described in the specification, are to be found in defendants' machine. The position is taken, however, that the Chandler invention is not limited to the form of mechanisms, or to the particular means of connecting the two sets of mechanisms, but that it covers all mechanisms for making satchel-bottom paper bags in which the tube-forming, feeding, and cutting mechanism, and the diamond-fold laying mechanism, are in a fixed frame, and the bottom-folding and pasting mechanism are in an adjustable frame, which is adjustable backward and forward with relation to the fixed frame. I cannot give such a broad construction to this claim.
EASTERN PAPER-BAG 00. ,. STANDARD PAPER-BAG CO.
Chandler did not invent a new principle of mechanics. The idea of adjusting one part of a machine to another, to adapt it to different conditions of work, was old. In this case, as in others, the claim must be construed and limited by what is found in the specification and drawings. These will show the real scope of Chandler's invention. Chandler took a Knight machine, and made it adjustable. He saw that, in order to adapt a Knight machine to bags of different sizes, it was necessary to make the rollers and blades adjustable with respect to the diamond-fold laying mechanism, because it is manifest that the leading end of the diamond fold will vary in length with the width of the bag, and it follows that, in order to enable the cross-fold mechanism to properly receive the ends of the diamond fold, it must be capable of adjustment. The specification says that the leading end of the diamond fold "will project more or less, according to the width of the bag, and it is to enable the rollers, i, k, to properly receive the leading end of the diamond folds, differing in length, that the said rollers, with the blades and .head, D, or the parts for cross-folding the diamond-folded portion of the bagblank, are made adjustable towards and from the cutting and diamondfold laying mechanism." But the adjustment herein described is not .<l1aimedbroadlyby Chandler, as is shown by the following disclaimer found in the specification: "I do not broadly claim adjusting the rollers in a paper-bag machine towards ;and from the tube-severing mE>chanism, merely to place the rollers at the proper distance therefrom to enable them to catch the end of the paper, and hold it, as the paper is being cut off for the bag." The patent also contains two other disclaimers, relating to some ofthe ;specific mechanisms employed. To sustain the claim of the Chandler patent as against these defendants, and in view of the disclaimers, it must beheld to cover an machines containing the combination set out in the claim, independently of the means of adjustment or of the forms ·of mechanism which go to make up. the different elements described. Believing such a construction of the claim to be untenable, I must find that the defendants have not infringed. The position is also taken by the defendants that part of their tube·cutting and diamond-fold laying mechanisms is found in the adjustable, .and not in the fixed, frame, and that, therefore, they have not the combination. composing the claim. This defense might deserve a more careful consideration, if I did not think the other ground already considered -conclusive of the case. Bill dismissed, with costs.
STARLINGtl.ST. PAUL PLOW-WORKS,
Minnesota. February 8,1887.)
PATENTS FOR !NVENTIONS-LICENSE--TERMINATION OF LICENSE.
A licensee of letters patent,. under a contract by which he is to manufacture and sell the article covered by said patent, cannot without the consent of the licensor, terminate the rights conferred by the license, and, there being no limitation on its face, the license continues until the expiration of the letters patent.
SAME-INFRINGEMENT-IKPROVEMENT IN SULKy-PLOws-ACTION AGAINST LICENSEE.
The first claim of letters patent No. 154,293, dated August 18, 1874, for an improvement in sulky-plows. covering the combination of a crank-bar. plow· beam. and axle, for the purposes set forth, so as to enable the horses to pull the plow out of the ground oy the adjustment of the lever in the notches of the curved bar. "Mld to be infringed by defendants in the manufacture of plows in which the mechanism used is only such mechanical changes as increase the power of the lever from a single to a compound action, reversing its movement from a lever moving forward to one pulled towards the driver, an.d in which a perforated segment and spring-dog are used. in connection with which thelever operates to raise and lower the plow-beam. these being only mechanical changes and equivalents; and a change in the device for depress· ing the.plow-beam in front will· not defeat the right of the patentee to an action for breach of contract against a licensee of his patent.
3.' SAME-NoVELTY. In an action against a licensee for breach of a contract of license for the manufacture and sale of sulky-plows, covered by letters patent No. 154,293, dated August.l8. 1874, when the contract of license contained no recital or ad· :nission by the licensee that the licensor had invented the improvement in sulky-plows. and plaintiff having joined issue on the defense of want of nov· elty.set up in the answer, no estowel being pleaded. and the defendants havintroduced in evidence letters patent No. 116,956, No. 120.560. No. 123,505, No. 132,772, No. 134.121, and No. 143,147. held that plaintiff's improvement was not anticipated by either of these patents, neither of them having the combination of the plaintiff. for the purposes described in his patent.
At Law. Frackelton. & Oareins, for J. B. & W. H. Sanborn, for defendant. NELSON, J. This is a suit for a breach of contract. The plaintiff is a citizen of Nebraska, and the defendant of the state of Minnesota. The defendant iSR naked licensee ofapatent, (No. 154,293, dated August 18, 187<.1:r,) under a contract executed December 17,1877) by which it is permitted tonianufacture and 'sell the Starling sulky-plow in the following territory, viz.·: "Wisconsin, Minnesota, and Dakota, and all that part of Iowa north of the Northwestern Railway, and all that territory weet and north of the above-described territory." A royalty of $2.50 per plow was exacted to be paid on accounts rendered July 1st and January 1st of each year. After the defendant had manufactured and sold between 35 ami 40 plows under the license, and on or about December 5, 1878, written notice was given the plaintiff that the construction of this sulky-plow was unsatisfactory and useless, and many had been returned as unserviceable and that the defendant would thereafter manu-
STARLING V. ST. PAUL PLOW-WORKS.
facture a sulky-plow of its own design, and renounced its license. The defendant, after the notice, rendered lin account up to January 1st, and since then has manufactured about 960 plows, called "Starling Plow," designed by Berthiaume, and about 350 plows called the "Harris Plow." The plaintiff insists upon a breach of the contract of license. Issues are joined under the pleadings, and, a jury being waived, the case is tried by the court. Starling Invention, Authorized to be Ma.ntifactured and Sold by Difendant. In this, the plaintiff's invention, there is a crooked axle and a crank-bar bent twice at right angles. passing through a box bolted to the plowbeam towards the rear. The end of this bar nearest to the driver's seat or right wheel of the sulky rides upon the inner end of the journal of this wheel. The lower end of a spring lever, which projects upward along a curved bar on the right· side of the driver'S seat, is connected rigidly with this end of the crank-bar. The curved bar, with notches on the outside to receive this' upright lever, is attached to the axle and part of a brace running from the axle to the tonguej and thus the crankbar bolted to the pjow-beam can be held in any position to which the lever is adjusted. The plow is thus locked either in the ground,at any desired depth, or up at any desired heightj and, in practicaloperation, when raising the plow up, the point comes ont of the ground first. To the front of the plow-beam is attached a jointed or hingedfoot.lever, composed of a vertical bar, the upper end of which is joined to a lever upon which the foot of the driver may be placed, and the lower end is pivoted to the brace above mentioned, running from the axle to the tongue, and also to the plow-beam. A stop is fixed at the rear part of the tongue, so that when the foot-lever is raised the rear end strikes against it. . The driver can also lock the forward end of down by this lever. The manner in which the crank-bar rides on the inner end of the journal, and the lever is attached, is distinctly pointed out in his drawing, figs. 3 and 4. "The first claim is for the combination of the crank-bar lever, plow-beam, and axle, for the purposes set forth, so as to enable the horses to pull the plow out of the ground." This is done by the adjustment of the lever in the notches of the curved bar. "The second claim is for a combination of the foot-lever and stop with brace-tongue and plow-beam, as shown and described" in the specifications of the patent. 1. I find that the defendant could not, without the consent of the plaintiff, terminate the rights conferred by the license, and, there being no limitation on its face, the license continued until the expiration of the present letters patent. 2. The Starling plow is of utility, and an operative machine, although it might work better in some soils than in others. 3. I find that the first claim of the plaintiff is mamfestly infringed in the Berthiaume and Harris plows, so designated; and the mechanism used is only such mechanical change as increases the power of ,the lever from a single to a compound action, reversing its movement from a lever moving forward to one pulled towards the driver. In the Berthiaume
plow a perforated segment and a spring-dog are used, in connection with which the lever operates to raise and lower the plow and beam, which are mechanical changes and equivalents only. In the Harris plow substantially the same device is used. While in the Berthiaume plow the device used for depressing the plow-beam ·in front is unlike Starling's, the change in that particular would not defeat the right of plaintiff to an action for breach of contract. 4. 1 have hesitated about going into the question of novelty, but 1 there being in the contract of license no recital or admission that plaintiff had invented this improvement in sulky-plows, and the plaintiff having joined issue on the defense of want of novelty set up in the answer, and not pleaded an estoppel, I have reluctantly allowed the defendant to introduce evidence on that issue,and find that the plaintiff's improvement is not anticipated by any .of the patents introduced in evidence. . Hay &: .Freeman's Patent, No. 116,956, dated July 11,1871. In this patent for an improvement in cultivators there are two crank-axles, on which the ground-wheels run. One is attached to the upper side of the main axle, which supports the frame and its plows, while at the opposite end the other is attached to the under side. There are levers attached ·to each end of the axle, with other devices described, so that an independent vertical adjustment of the wheels in relation to the axle is obtained, and thus the main axle is supported at any required height from the ground, and with one end higher than the other, and, by a locking device, the lever will hold the wheels at any height desired. This device is to regulate the depth of the furrow to he cut. A bar of an inverted "U" form loosely secures the plOW-frame to the axle, with its ends pivoted to the main axle.· When this bar is turned upward, the frame and plows are raised upward, and moved forward until the arms of the bar are carried forward a vertical point, so as to support the frame, and keep the plows out of the ground. This is done by a lever attached by a link to the frame. There is no mode of locking, by 'the lever, the plow in the ground at any required depth,or raising the point of the plow by the lever, and locking, so that the horses can pull it out of the ground. The object of this invention, in part, was to mount the main wheels so as to be capable of independent vertical adjustment, and arrange the main plow-frame so that it may be raised or lowered. Worrell &: Rynerson's Patent, No. 120,560, dated October 31, 1871. 'rhis patent plow has an axle raised in the and, similar to the Hay and Freeman, has a transverse bar, which is supported in the rear ·to the by a hinge. the swinging plate secured rigidly to the bar, the arms of which, extending forward, are pivoted to the vertical 'parts of the axle. One arm extends forward, and forms a foot-rest. The beam is supported so that pressure on the foot-rest elevates the beam and ,plbws.The draught is upon the tongue, to which a curved rack and an elboW'lever are pivoted. The short arm of this lever in the rear turns ·upbua transverse pin, which passes through a verticalloop to which the forward end·of the is hung by an eye-bolt. The teeth of the rack lacing the lever enables the depth of the furrow to be regulated by
STARLING fl. ST. PA.UL PLOW-WORKS.
raising the points of the plow. The plow is kept in place by the rack, which is made to engage with the transverse pin at the proper point of elevation. When the points of the plow are raised by this device, it is not possible to lower by a reverse action of the lever. Should an attempt be made, resistance would come from· the tooth of the rack engaged. The object of the foot-lever is to enable the driver to raise the plow entirely out of the furrow, and out of contact with the ground; but, as soon as his foot is removed, the plow falls back. There is no device for locking the plow at any required depth, and the foot-lever, which is an extension of the yoke or transverse bar,will not raise the point of the plow. Owen'8 Patent No.1, No. 123,505, dated February 6, 1872. In this sulky attachment for plows is a drop-iron, passing through the tongue and a CIT" piece at the bottom, over the forward part of the beam, with a deyice on the drop-iron for regulating the depth at which the plough shaU'run by a pin passing through holes in the above the tongue, and a sliding sleeve stop, secured below in any desired position bya set-screw. The driver, having secured the stop to the drop-iron at the desired position, and fixed the pin in the drop-iron above the tongue, is enabled, by treading on the WI''' piece, to strike the front end orthe beam, and depress it so that it enters the ground to an extent limited by the pin. He then withdraws his feet, and the stop strikes underthe tongue. The driver does not operate this device while the plow is in motion. No jointed foot-lever is used, as in the plaintiff's patent. Owen, by his device, controls the depth of furrow, and keeps the plow in place. There is a foot.rest upon the arm of the yoke or hanger, which extends forward as in the last machine, and, by placing his foot upon it, the driver can employ his weight in elevating the plow. The axle is composed of two crank-arms, and there is also a hand-lever pivoted to the right crank-arm, and on this pivot is a cog-wheel loosely mounted, gearing with another cog-wheel attached to the arm of the yoke or hanger, and a ratchet-wheel, which is attached to and moves with the cog-wheel pivoted to the crank-arm. The hand-lever has a spring-pawl pivoted to it, and a device by which the pawl will engage with the ratchet-wheel. This device enables the driver, seated above, to raise the plow out of or off the ground by pulling the lever towards him. There is a latch pivoted to the axle, extending rearward, and, when the plow is elevated high enough, the latch engages with a shoulder in the hanger or yoke, and supports it. The driver, with the foot-rest, can aid in raiE'ing the plow when he operates the lever. An arm projecting from the lever, at a point near where it is pivoted downward in front, operates as a stop, by striking the axle so that, when the plow is raised to a desired height, the driver can hold it by the foot-rest, and let the hand-lever down in front until the stop strikes the axle, and then, by engaging the pawl with the ratchet, and releasing the pressure from the foot-rest, the weight of the plow keeps the pawl locked. 'I.'he plow can be held at a certain elevated. position, but not locked in the ground. Neither will the lever raise the point of the plow out of the ground; and
the front device, running through the tongue, will prevent the tilting of the point of the plow when raising it out of the ground. OWrm's PatentNo. 2, No. 132,772, patented November 5,1872. In this patent the plow, when elevated, may be locked to insure proper depth of furrow; but when a small falling and locking lever, which is pivoted to a pawl asa balance, is thrown back, and the plow is lifted so.that the pawl is withdrawn from the ratchet, it will drop to the ground. The lever used will lock the plough so as to prevent it from going deeper, but the point of the plow cannot be raised by the lever. ,WorreU Patent, No. 134,121, dated December 17, 1872. There is n() locking lever described in this patent as in Starling's, and no device like his for raising the point of the plow, orlocking the plow in the ground. HarrilJon Patent, No. 143,147, dated September 23, 1873. This invention has a device attached to the hub of the right wheel, by means of which the plow is raised out of the ground by the power of the team, but no hand or foot lever arrangement for raising the plow out of the ground. Neither of these patents have the combination of the plaintiff, for the purposes described in his patent, and do not anticipate the invention. The conclusion is that the plaintiff is entitled ,to a royalty on 1,310 plows, at $2.50 each, making the amount of $3,275, for which sum judgment is ordered.
WmCHERS SUGAR REFINING
(Dinrict (Jourt. 8. D. New York. January 25, 1887.)
OAR:RIBBS-OF GOODS BY VESSEL-BILL OF LADING-PBESUHPTIONS-EXCEPTIONS-"WEIGHT UNKNOWN"-SHORT DELIVERY.
The stamping of the bill of lading by the master, with the words "weight unknown," repels the prima facie presumption as to the weight shipped, which otherwise arises from the statement of the weight in the margin of the bill of lading; and, in case. of alleged short delivery in weight, other proof of the weight shipped must be made. , Where sea damage may arise from different causes, either with or without negligence in the ship, the nature and extent of the damage maY' be material in determining to which cause it should be assigned. Held, in this case, not sufficient damage proved to establish presumptive negligence in the ship.
S. SAME-SEA DAMAGE-EVIDENCE-EXTENT OF Loss-NEGLIGENCE.
SAME-DAMAGE TO CARGo-DUNNAGE-SWEATING.
The bill of lading for 4,800 bags of sugar, loaded at Havana, to be delivered at New York, stated in the margin the aggregate net weight; In the body of the bill of lading it was stated, Weight and contents unknown;" and across the falle of the bill of lading. there was a1so stamped, "I do not know the weight or contents, and am not liable for sea damage." Upon a libel filed against the ship, short delivery in weight, and injury through want ofdunnage, it appearmg that the ship had met with very heavy weather, being. for a time nearly upon her beam-ends, when the pumps would not suck; and some lOBS thereby necessarily arising through drainage in the bilges, without the ship's fault; and only 1 bag being empty. and onl,Y 80 bags being apparently"slack;" and the stains upon some 1,600 bags bemg shown by proof,