around the other prong. The bights of the Burnell prongs each incloses the other prong and one of the strands. John R. Bennett, for complainant. Walker, for defendants. J. M. Holmes and TREAT, J. As to patent No. 192,225, issued to A. S. Burnell, dated June 19, 1877,and which is the patent sued on·, the court holds the same to be valid; also that defendant infringes the same. Usual decree for perpetual injunction, and the case' is referred to Hon. T. C. Reynolds, master in chancery, to ascertain and report profits and damages.
PAILLARD and others v. BRUNO.
((}i1"tJuit Oourt. B. lJ. Ne1J) York. December 26, 1886.)
PATENTS FOB lNvENTIONS-ExPIRATION-FoREIGN PATENT-REV. ST.
U. S. § 4887. Under section. 4887, Rev. St. U. S., a patent for an .invention which had be'en previously patented in England for the term of 14 years does not expire until 14 Y'l'ars from date of the English patent, notwithstanding the grant of the English patent has' terminated by the failure of the patentee to pay the stamp duty required to be paid as'a condition of the continuance of the grant beyond the term of three years.
Goepel Raegener, for plaintiffs. John R. Bennett, (RichardM. Bruno, of ,counsel,) for defendant.
WALLACE, J. The bill of com.plaint alleges infringement by the defendant of letters patent of the United States of the date of March 23, 1875, granted to Charles Paillard for an improvement in m usia-boxes. The plea of the defendant alleges, iq substance, that, prior to the grant of the patent in suit, the invention which is the subject of the patent had heen patented by Paillard, in England, by letters patent of the date of October 26, 1874, for the term of 14 years, which grant determined before the commission of the acts of infringement complained of, to-wit, October 26, 1877, by the failure of the patentee to pay the stamp duty required to be paid by the terms of the English patent as a coudition of the continuance of the grant :peyond the term of three years from its date. The plea presents the quel'ltion whether the patent in suit expired upon the failure of the patentee to pay the stamp duty which he was required to payin order to prolong the existence of the English patent, or whether it d.oes not expire until the expiration of the original term of the English patent. This question depends upon the meaning of that part of section 4887 of the United States Revised Statutes which provides that "every patent for an invention, which has been previously patented in a foreign country, shall be so limited as to expire at the same time with
PAILLARD 11. BRUNO.
the foreign patent, PI,if there be more than one, at the same time with the one having the shortest':term, and in no case shall it be in force more than seventeen years." The defendant contends that congress intended. to declare that the patent shall not remain in force beyond the time when' the foreign patent ceases to be in force,'and that the right to:t116 mon· opoly in the United States shall cease with the right. to.it in the country . of the foreign patent. The precise question has been considered and decided adversely tothe defendant in this court by Judge WHEELER, in the case of Holmes,ElectriC Protective Co. v. Metropolitan Burglar Alarm Co., 21 Fed. Rep. 458; That decision was upon a motion Jor a preliminary injunction, and should not neoossarily preclude further consideration upon a more deliberate hear,. iug:; .but it issuppoited,by the decisions in Henryv. Providence, Tool Co., 3 Ban. & A. 501"andRei88ner v. Sharp, 16 Blatchf.383. Both of these, ",ere cal:lesin which the original term oUhe foreign patent had beeneX;· , tended subsequently to the grftnt of t46 United States pp,tent, and it was, cantended' that the, prolongation of the term of the· foreign bY,Ilp':; extension, prolonged correspondingly 'the, term of·the Vriited pat,: ent. It was held in both ,cases that the section in construed to mean that the United States patent is to expire at the time of the original term of a foreign patent for the san;te inveI;ltion. In lfep,ry v. Providence Tool Co., Justice CLIFFORD said: "Congress employs the words' the foreign' patent, evidently referring to the term of the foreign patent to define the term of the domestic patent;" and his conclusion' was reached upon the consideration that congress could not have intended to;grantft patent for indl?finite term, or, for an uncertainandiun4e. fined duration, which would be, the case ifjts duration could not be ascertained by referring to the foreign patent, or were to depend upon any events occurring subsequently to the issue of the foreign patent. He also considered that the use of the word" term," in reference to a foreign patent, when there is more than:' one, indicates that the time of expiration is to be ascertained by the term of the pfttent, and because tlle use of the word" term," in reference to a foreign patent,when more than one such patent e:xists,indicates what was meant as the time of duration. In ReisiJ1l,er v,. Sharp, theJorce of these considerations was recognized by Judge BLATCH:F(mD in reatlhing the same conclusion. Accordillg to the construction thus placed upon the section, it should be read as though it that the United States patent is to expire at the same time with the term ofthe foreign patent previously obtained for the same invention, or, if there be more than one, at the same time with one having the shortest term. Upon this construction the duration of the of the United States patent is fixed when the patent issues, according, to the maximid i<ertum est quod certum reddi poteat. Upon any other. construction, neither the commissioner ofpatents, nortbe patentee, nor the public,. 'Would, know the duration of the grant. The term of a patent is the period of duration expressed in the grant. It may be terminated by operation of lalY, or by the act of the parties, at an earlier time; and consequently it might happen that of two patents the one having the v.29F.no.16-55
shortest term may have. the longest life. Unless the trtle meaning of the section is as indicated, 'the patent might expire, if there were two foreign patents, at the same time with the one:having the longest term; and, in a case like the present, by the non-payment of a stamp duty, notwithstanding the language of the isectionthat in such case it is to expire with tbeone having the shortest tann. The prior legislation of congress does not throw any light· upon the question. of'legislative an.d :theargument that it was the intention of congress to provide that the exclusive right to the invention here should cease with the exclusive right of the patentee in any foreign country rests solely up0n the language of the section. Such was not the purpose afthe act of,Jrily4, 1836,oHhe act ot March 3, 1839, both of which enabled a patentee to enjoy a monopoly here when his invention had becOttle public' property abroad.. 'SUPPolled considerations of policy are a. very unreliable guide in tne, interpretation of statutory law, when ,they are not derived from the law itself, or acts in po/FimfJ,teria; and the argument in the present case 'Would tend to a. construction of the section w'hibhwotlldtix the duration·of a United States patent by the extension' ()f)a Joreignpatent, or the' renewal of one capable of prolongation, like an Austrian patent. The plea is overruled.
00'. and others. 1
11. SOUTH ST.LoUIS FOUNDRY
«(JirMlit (JO'UA't,1D.D. MiB,O'Uri. February 7, 1887.)
PATENTS 1I'0ltJNVENTIONS-BROADENED REXSSUES-DELAY.
A btoadened reissue sl:!quld not be granted after a delay of four years In making application therefor. '
. ,:Letterspatent No. 209,428, to Frederick Shickle for an Improveheld not infringed by a yoke having its m.ent in pipe-mouldine; arms connected at theIr lower ends by means of a rod, and 'provided at their extreme with clips to connect them to the ends of the patterns. .
Letters patent No. granted to Frederick Shickle for an improvement in pIpe-moulding apparatus. are void for want of patentability.
In Equity. 'This' is a suit for the itlfringement of three letters patent granted to Frederick Sbickle, viz. :(1) Reissuedlett(ll's patent No; 8,562, granted ?anllary28, for Pipes; (2) lette;s patent No. 209,428,granted'October 29, 1878, for .an "Improvement lD l'ipe-mouldihg (3) letters patent No. 295,205, granted Marcn 18, 1884, for an inPipe-niouldingApparatus."
lEdited by Benj. F.ReX;'Esq.,· of the St. Louis bar.
The claims as follows:
"(1) . 'rhecombinaticln ;onbeilask. the If.' and the pattern, D, having the. parts. d. d. upit¢ at or near their tops by: a yoke, d ' , consisting of two ringlband a connecting .bar, substantially as llescribed. "(2) The combination!ofthe·flask. B. having the'compartments,B. B t ' and the pattern, D, baving tbe parts, d, d, and the yoke, d', substantiaHy,as desori bed. " . , .' .. . , ",
The yoke which the complainants contended infringed letters ,paient No. 209,428 is a bar, bent somewhat in the shape of an inverj;eq"U," strengthened by a cross--bar,and having the ends of its arms pr()vided with clips, to connect each of them with the ends of a pattern to be
bed. ' . RObert iI.Parhinsoo, E. J. O'Brien, and T. A.Post, for complainant. Geo. H. Knight and H. D. Wood, for defendants.
TREAT, J. Reissue patent No. 8,562, dated January 28, 1879, of patent No. 148,094, dated March 3, 1874, being more than four years thereafter, under the recent decisions of United preme court, is null and,void. As to patent No. 209,428, dated ber 29, 1878, there is no. ,infringement. As to. patent No. 295,295; dated March 18,1884, said patent is null and void fgr want of patents.-
Bill dismiase<l, with costs.
S. S. Co.
Owner, and another.,
(D4fJrict OOU'I't, S. D. N6'I/J YO'I'k.
January 26, 1887.)
For damages by collision, there is no marItIme lIen upon the cargo, except to the extent of freight due, though the cargo belong to the owner of the vessel in fault. S. SAME-LIMITATION OF LIABILITy-REV. ST. U. S. §\ 428B-MuTUAL FAULTHULL AND CARGO-SAME OWNER-OFFSET, HOW lLnE. Under the general,maritime law' and section 4283 of the Revised Statutes, which limit the liability of ship-owners to the value of the vessel and freight, in a collision by mutual fault, where there is a loss to both vessels and the C&I'go, though belonging to the owner of one of the vessels, cannot be appropriated to help equalize the loss between the two vessels; and,Jor the same reason,the owner's claim for damages for the 108sof his cargo cannct be offset fota similar purpose. No abandonment of the cargo. or of the' claim for damages thereto. is required by law as a condition of limiting the ship-owner'sliability. The damage which the maritime law requires to be massed. for the purpose of. equal division, is the damage "to the ships, "; not inclUding daIllJ!,ge to cargo that the ship or'her owner is not legally bouildto pay.