writing no opinion the supreme court of the District may have intended to express the conclusion that for some sufficient reason, not shown here, those particular defendants should be enjoined, while at the same time, by not :filing an opinion, they a"\"oided giving the patentee a supporting adjudication which would enable him to get injunctions as a matter of course against infringers generally. The injunction pendente lite is therefore vacated, but, inasmuch as defendants' carelessness has made the argument more for their adversary than it otherwise would be, solely upon condition that defendants :file each month until :final hearing a sworn statement of all shelves with hand-holes sold by it, giving date of sale, name of purchaser, and, if not manufactured by defendants. name of person from whom purchased.
BERNHEIM v. BOEHME. (Circuit Court of App als, Third Circuit. No.6.
PATENTS-ANTICIPATION-,CATCHES FOR SA1'CHELS.
April 8, 1896.)
The Lieb patent, No. 242,944, for catches for traveling bags and satchels, 67 Fed. 547, affirmed.
held void because of anticipation by the Lagowitz spring catch.
SAME-LnnTATION OF CLAIM-PRIOR ART.
The Flecke patent, No. 303,716, for catches for traveling bags and satchels, if sustainable at all, must, in view of the prior state of the art, as shown by the Lagowitz spring catch, be limited to a catch having three cam projections placed equidistant on the shaft, and is not infringed by a catch having but two such projections.
Appeal from the Circuit Court of the United States for the District of New Jersey. This was a bill in equity by Gustav Bernheim against Albert Boehme for alleged infringement of letters patent No. 242,944, granted to John W. Lieb June 14, 1881, and No. 303,716, granted to Robert Flecke August 19, 1884. The circuit court held both patents void for want of invention, in view of the prior state of the art. 67 Fed. 547. Complainant appeals. Louis C. Raegener, for appellant. Jonathan Marshall, for appellee. Before ACHESON, Circuit Judge, and BUTLER and WALES, District Judges. BUTLER, District Judge. The decree in this case must be affirmed; and with slight modification the opinion of the circuit court may be adopted as an expression of our views. Taylor's device does· not we think anticipate either of those sued upon. It contains substantially the same elements; but the parts are not so constructed and combined as to render it applicable to the use for which they are designed. No doubt the construction v.73F.no.5-53
73 FEDERAL REPORTER.
and combination might readily be changed so as to render it applicable to this use; but it does not follow that the necessary changes areS() obvious that an ordinary mechanic would see, and make them. device we think anticipates Lieb's. In construction, combination and operative effect, the two are in all material respects indistinguishable. As respects the other device sued upon (Flecke's) the resemblance to Lagowitz's is not so close. There are differences, which though slight affect and vary their operation. There may be room to doubt whether the differences are sufficient to sustain the Flecke patent. Possibly with the presumption of validity in its favor, it should be susta.ined. It is unnecessary however to decide this question; for if the patent may be sustained the respondent's device must be held not to infringe. It is certainly as easy to distinguish his from Flecke's, as it is to distinguish Flecke's from Lagowitz's. The claim involved reads as follows:
"The improved spring catcb or fastener for a bag frame, the same consisting of a box, a, having therein a spring, c, and a pivotal sbaft witb ears at eacb end tbereof, adapted to bold the section of tbe bag frame togetber, and having three cam projections disposed at equal distances apart around tbe said shaft, to engage tbe spring wbereby the ears may be turned to a catching relation to tbe said frame or to either a right or left outwardI3'-projecting position from the frame, SUbstantially as set forth."
The novelty thus described consists in the three cam projections, placed equidistant on the shaft. The respondent has but two such projections; and but one distinct cam surface. In the complainant's specifications it said:
"I do not wisb to be understood as limiting myself to a bar, e, having projedions upon it, inasmucbas a plain round bar might be employed, the friction of the spring alone serving to bold the ears in position."
If, however, this language is read into the claim the device described is rendered indistinguishable from Lagowitz's and the patent is consequently invalidated. The subject need not be pursued. It is clear that to sustain Flecke's patent it is necessary to confine it to the special structure claimed, and that when thus confined the respondent does not infringe.
BONSACK MACH. CO. v. ELLIOTT. SA-r.m et ai. v. NATIONAL CIGARETTE & TOBACCO CO. et ai. (Circuit Court of Appeals, Second Circuit. April 6, 1896.)
PATENTS-LIMITATION OF UI,AIMS-ClGARETTE MACHINES.
The Emery "belt patent," No. 216,164, for a cigarette machine, is limited, as to claims 10 and 12, to un endless belt, curved transversely into tubular form, to constitute a mold for compressing the tobacco into a filler, and they (10 not cover a fiat belt, which serves merely to support and carry the filler after it has been formed by a separate device. 16 C. C. A. 250,69 Fed. 335, affirmed on rehearing.
Appeal from the Circuit Court of the United States for the Southern District of New York.