ROOT V. THIRD AVE. R.CO.
for the complainants, states that,as a practical brewer, he would not use the apparatus of the patent until the kraeusen stage is somewhat advanced; and that it is desirable to allow the beer to work out of the cask for a few days, and thereby eliminate the bulk of the impuri"ties, before applying the apparatus. He states that,although some brewers apply it at the beginning of the kraeusen stage, brewers generally do not, but find the best results are obtained by allowing the active fermentation to proceed a few days before doing so. There is considerable other testimony in the record to the same effect as respects the use of this apparatus and of the several other equivalent devices. The proof seems clear that the defendant has used the Eureka device in just the same way in which the Guth vent-bung was used in its brewery in 1875, and just as the Meller and Hofman vent-bung was used in its brewery during the time it was authorized to use that device. The bill is dismissed, with costs.
(Oircuit Oourt, B. D. New York.
July 8, 1889.)
PATENTS FOR INVENTIONS-CABLE-GRIP-INFRINGEMENT.
etc., with endless traveling devices." (cable-car grip.) Claim 2 is as follows: "In combination with the lower jaw, I, the transverse bar, 0, with its vertical rope supporting pulleys, P, substantially as described, "-the transverse bar being simply a pulley carrier. Held infringed by defendant's device, which is the same combination except that there is no transverse bar, the lower jaw taking its place as a pulley carrier, the pulleys being connected with the lower jaw instead of the upper, as in the patent, and except a merely formal difference in the movement of the lower jaw.
Letters patent No. 160.757, granted to William Eppelsheimer, March 16. 1875, are for "an improvement in clamp apparatus for connecting street-cars,
Complainant's patent, construed as a combination in which the jaw and transverse bar are substantially such as are described, and in which the pulleys and jaw co-act by the same mode of operation to perform theirfunction, is not anticipated by the Hallidie patent No. 129,130, granted July 16. 1872, which embraces the jaws and transverse bar. and in which the jaws are moved towards each other by means of a wedge and hand-wheel.
In Equity. Bill for infringement of patent. George Harding and George J. Harding, for complainant. Frost &; Coe and Harry E. Knight, for defendant.
\VALLACE, J. The patent in controversy in this suit is No. 160,757, granted to William Eppelsheimer, March 16, 1875, for "improvement in clamp apparatus for connecting i"treet-cars, etc., with endless traveling devices." The complainant aileges that the defendant has infringed the second claim of this patent. The claim is as follows:
"(2) In combination with the lower jaw, I. the transverse bar, 0, with its vertical rope-suPlJorting pulleys, P, SUbstantially as descrilJed."
FEDERAL ,'REPORTER l
This daini is for a a grippiilg deviddorconnecting astreet'-car or other vehicle ,with an endless moving rope or, <:able for propelling the vehicle aloilg'rthe track, which consists 011 'hvo'elements: (1) a movable jaw; and (2) aftransv'erse bar carrying pulleys., The specification describes and the:drawings show a gripping device provided with two jaws, one fixed and,'bne movable, the lower one of which is caused by'suitable mechallisnl'operated from the car to advance towurds the other and grip a cable l1mving upon pulleys between them, and to recede and release the cable. The transverse bar" 0, described and illustrated, 'has vertical rope supporting pulleys, one at each end, so located and arranged that the movable jaw can be raised and lowered between them, and carry the cable resting on the pulleys into contact with the fixed jaw when it is raised, andrelease it when the jaw is lowered, so· that the cable will' 'rest upon the pulleys. 'The bar is a longitudinal frame, to which the pulleys are journaled and hell] in a fixed relation to the movable jaw. This bar may be connected with the movable jaw, so as to be partially rotated by the movernent of the jaw as it advanccs to or recedes from the upper jaw; but this feature may be dispensed with, and it may be secured irnmovably to the fixed jaw. The lower, bar with the pulleys, constructed and movable jaw and the arranged as thus described, are the elements of the claim. The function of the devices in this combination is to enable the pulleys to support and carry the cable when tire jaw is lowered, and hold the cable 'in sucb,'a:relationto the t,tajaws that the lower jaw, when raised again, will restorilits contact ",:ith the upper or jaw. The combination is confined· to parts whichco-aet when the movable jaw is lowered. The pateritee was not the fil'st to em ploy a jaw and pulleys as parts of a gripping device for propelling the vehicleJ;ly an endless cable, constructed and arranged so that the pulleys support and carry the cable when the jaw is opened, and hold the cable in such relation to the jaw that it is removed from the pulleys to the jaw by the closing of the jaw. A combination of these parts, having these functions, is described and showniin the patent to Anclrew S. Hal!idie,No. 129,130, granted July 16" . The gripping-jaws of this patent are moved towards or from each other by means of a wedge actuated by a hand-wheel. The pulleys are oblique, (two at each end of the jaws,) operate in pairs, and are carried by a transverse bar. When it is desired to stop the vehicle the wedge is lowered sufIieicntly to free thejuws from the rope without (hopping- it froth :the pulleys. The rope will then be carried' by the pulleys at its ordinary speed, readyto be gripped when the wedge is lifted by turning the hand-wheel, and the jaws are forced together. The Hallillie patent is the nearest anticiljat,ion of the invention claimed which is shown in the prior state of the art as exhibited in the'record. Except as showing devices which perform in combination the function of the combination Of the claim, it is of no value. The other patents in tha record, which have been addtwed by the defendant for the purpose of negativing novelty, do not meri1Jattention. It is apparent from the Rallidie patent alone that the cla.im in controversy does not extend to
llOOT 'II. THIRD A
-evj3ry comhinl;ttion of pulleys and releasing jaw which will perform the functions mentioned. the claim is limited by the conupon it by the pm.or stlitte of the art, as well as by struction its reference to the specification to a combination in which the jaw and transverse bar are substantially such as are describE'd, and in which the pulleys and jaw co-act by the same mode of operation to discharge the function assigned to them. The real question in the case the gripl?ipg devices of the defendant, which discharge the same functions, are substantially those of the patent. The, device of the defendant has no transverse bar as a distinct and independent element of the combination, but the lower jaw itself supports the pulleys. The lower jawisthe mowablejaw, and when raised or lowered carries the pulleys with itself towards or from the fixed,jaw. The pulleys are one at, each end of the jaw, and have their upper faces on a plane above the jaw; When the two jaws are in contact. the fixed jaw rests upon the linter jaw between the two pulleys, and the seat of the fixed jaw is below the plane of tbeupper faces of the pulleys. When the mO'lrablejaw is lowered ,the cable is released from the grip of the fixed jaw, and rests wholly upon the pulleys; and when this jaw is raised again the cable resting on the pulleys is held by the grip anhe two jaws.. Plainly the lowerjaw does the work of the transverse bar, and also of the lower jaw, of the complainant's 'patent. The doubt is whether it should be considered as embodying .both a jaw and a transverse bar, or should be deemed a single device which dispenses with one element of the combination claimed. If the claim had been one for the lower jaw and the pulleys, SUbstantially !Hl' described, it would ,have appropriately specified the combination described in the patent, and would have coyeredin term's the combination of the defEmdant. The transverse bar of the patent is nothing but a pulley carrier. The movable jaw of the defendant's apparatus is a pulley carrier, besides being a jaw. It supports the pulleys in the requisite location as respects the fixed jaw, which is the only office of the transverse bar of the pat,ent. If the transverse bar of the patent had been called a "pulley carrier" in the claim, the movable jaw of the defendant's apparatus would ,answer the descriptive term. The lower jaw of the defendant's combination does the work of transferring the cable from the gripping jaws to the pulleys, and enables the pulleys to support and carry the cable when the jaw is lowered. and hold it in such a relation to the two jaws that the lower jaw, when raised again, will restore the contact of the cable with the upper or fixed jaw, precisely as does the lower jaw of the combination of the patent. The only difference between the two gripping devices is that the pulleys in the defendant's device are connected with the movable jaw, while in the device of the patent they are connected with the fixed jaw, and in the patented devices the movement of the lower jaw to release the cable is 11 vertical movement both as respects the fixed jaw and the pulleys, while in the defendant's apparatus the movement of the lower jaw is a vertical movement asxespects the fixed jaw, but .not as respects the pulleys. These are merely formal differences. They
FEnERAL ·R.EPORTEk, 'V01:39.
do not 'any inventive thought, arid' are immaterial as respects the function and mode of operation of the parts of the combination., Tlu, usual decree for an injunction and a:ccouriting is ordered for the complainant.
(Oircuit Oourt, lv. D. Pennsylvania. Junet3, 1889.)
PATENTS FOR INVENTIONS-INJUNCTION-CONTEMPT.
Where, upon motion after: final decree in favor of the plaintiff in a patent cause for,a'nattachment against the defendant for contempt, it appears that the device, the use of which is alleged to be a violation of the injunction, is made under a patent granted since the decree, and it is not obvious that the differences between it and the plaintiff's de.vice are colorable or immaterial, and the question of infringement thus raised is new, and demands an inquiry into the state'of the art prior to·theplaintiff's patent; and also involves the construction of the claim of that patent,-the motion will be denied, and the plaintiff left to assert his rights by an original suit. . for contempt, in
Sur motion for an attachment against the violating the injunction granted at final hearing. G. G. Frelinghuysen, for the motion. Edwin T. Rice, contra. .
ACHESON,:T. The claim of the patent sued on (the Frisbee patent) is in these words: "The combination, operating substantially as descriqed, of an annular corelifter and a tube or ring with a tapering recess in its inner surface." The described operation "In operation, as the bit excavates the rock and the core enters D, [i. e., the core-lifter,] the latter first becomes stationary OIl the core, and is then forced over it by the shoulder ,of the recess, C, the tube, B, revol ving round D till the required depth is reached. When the drill-rod is withdrawn, D is forced towards the small end of-the recess, clamping the core more firmly as the tube, B, recedes, until it detaches the core from the solid rock." The court has heretofore adjudged that the defendants infringed this patent by the use of the CaseCof&-Lifter, in which the court found a combination substaatially thesB!llle as Frisbee's, operating substantially in the manner described in his patent. Upon reference to the opinion of the court (29 Fed. Rep. 288)'it'willappear that this decision was put, not simply upon the ground .that the two devices, when in position to act as core-lifters, opimitediil the same way,but in part upon the additional facts that during the operation of boring each device clasped Of hugged the core, and was' forced over it by the shoulder of the recess; that in each the tubular rod revolved freely around the core-lifter the desired depth was reached; at1d that each was wedged tightly in the tapering recesS by the upward pull of the drill-rod. But the core-lifter
SCOTT V. FOUR H1JNDItED' AND FORTY-FIVE TONS OF COAL.
now employed by thedefendants, and the use of which, the plaintiff insists, is a violation of the injunction, is a device described in and covered by letters patent subsequently granted to. Albert Ball, being No. 366,913, dated July 19, 1887, upon ap,plication filed November 13, 1886. In mode of operation this latter device differs from the Frisbee core-lifter, and also from the Case device, in two particulars: First. During the work of boring, the Ball device does not embrace or come in contacLwith the core, but by an outward spring pressure clings to the tube or oore-barrel, and partakes of its rotary motion. Secondly. The Ball core-lifter is not forced towards the small end of the recess by the withdrawal of the drill-rod. but is driven into the conical chamber, and thus made to grasp the core by hydraulic devices brought into action by the operator in charge of the boring machine. Now, I am not prepared to declare that these diflerences are colorable or immaterial. They are not obviously so. The decision of the question of infringement, here for the first time raised, demands an inquiry into the state of the art prior to Frisbee's invention, and involves, too, the construction of the claim of his patent as limited by the phraseology "operating substantially as described." In cases of this kind a motion for an attachment is not granted unless the violation of the injunction is plain and free from doubt, (Refrigerating Co. v. Eastman; 11 Fed. Rep. 902; Smith v. Halkyard, 19 Fed. Rep. 602,) and upon the whole I am of opinion that the question whether Ball's patented device infringes the Frisbee patent ought not to be determined upon such a motion as this, but only by an original suit. Pump Co. v. Manufacturing Co., 31 Fed. Rep. 292. And now, 13, 1889, the motion for an attachment for contempt is nied, without prejudice to any suit the plaintiff may bring to test the question of Infringement involved in this motion.
HUNDRED AND FORTy-FIVE TONS OF COAL.
(District Oourt, D. Oonnecticut. June 29, 1889.)
A·schooner laden with coal struck and sank in very dangerous water at the entrance of Long Island sound, only the main rail being out of water. The locality was an e:8:ceptionally bad one in which to save eitber vessel or cargo. Libelant, the owner of a wrecking equipment, offered to save the top-hamper for 50 per cent. of its value, if successful, and subsequently offered to save it for 40 per cent., if he could have 75 per cent. of the cargo also as salvage service. The agent of the vessel's owners accepted this preposition. The libelant communicated this offer to tbe consignees and insurers, without receiving any reply. Libelant took a lighter, a tug, and 12 men, and in 2 days had the top-hamper ashore safely. He secured the services of a large steam wrecking vessel, baving a foreman and two men, and with his own lighter and tug proceeded to pump the coal out of the hull. After getting a small part out, by the aid of the current the vessel was raised and, with difficulty, gotten 8shorll on the same day. Shortly afterwards the coal wasTemoved. The top-hamper alone was worth $800 to $1,000, and the schooner and bamper