77 FEDERAL REPORTER.
was engaged in the business herself, or was actively asserting ner rights under her patent, it might well happen that a particular hair dye might be sold for years without attracting her attention. If, however, it could be legitimately assumed that she was aware of the sales, the circumstances repel any presumption that she was aware that the preparation was an infringement of her patent. Its formula was not advertised in any way. It was not sold by a name which conveyed any information as to its ingredients. In general characteristics, it assimilated to many other hair dyes which were not infringements; and, in the answer in the cause, the present defendants assert that it was not the hair dye of the patent. Unless it was her duty to cause a chemical analysis to be made from time to time of various hair dyes being sold in New York City to ascertain if any person was infringing her patent, there is no reason 'or imputing knowledge to her of the infringement, upon the the· . ory that she did not avail herself of the opportunity of acquiring knowledge. We cannot conceive that such a duty was incpmbent upon her. We do not deem it necessary to discuss the scope and application of the doctrine of laches as it obtains in courts of equity. It is not pretended that Shaw supposed the complainant's assignor to be aware that her patent was being infringed, or was influenced in the slightest degree by any implied acquiescence on her part. Much less can it be pretended that the present defendants have in any way been influenced by such a belief. Their answer is inconsistent with such a theory. There is not an element of equitable estoppel In the case as disclosed by the proofs. The decree is reversed as to the part appealed from, with costs, with instructions to the circuit court to decree for an accounting, together with the costs of the suit.
NEWTON v. BUCK.
(Circuit Court 01' Appeals. Second Circuit.
December 8, 1800.)
ASSIGNMENT OF PATENTS-SALE BY RECEIVER IN PROCEEDINGS SUPPLEMENTARY TO EXECUTION.
Defendant, In writing, transferred to a firm certain patents, but, by Inadvertence, one patent included in the agreement was omItted from the writIng. All the rIghts acquired under the agreement were assIgned by the firm to one N. Afterwards a receiver of the property and effects of N. was duly appointed by a st.ate court, In proceedings supplementary to execution, under the New York Code. The receIver, by order of court, sold the debtor's Interest In the omitted patent, and the purchaser transferred the same to defendant. Held, that the equitable title held by N. passed by this sale, and a 8ubsequent assIgnment thereof by hIm passed no Interest whatever. 72 Fed. 777, reversed.
Appeal from the Circuit Court of the United States for the Northern District of New York. This was a suitin equity by Addie Newton against James A. Buck for alleged infringement of letters patent No. 301,087, issued July 1, 1884, to the defendant. Plaintiff's claim to the patent was found-
NEWTON V. BUCK.
ed on certain assignments, as shown more fully in the opiniou delivered in the circuit court. 72 Fed. 777. The decree in that court was for complainant, and the defendant has appealed. George A. Mosher, for appellant. Ward & Cameron (WaIter E. Ward, of counsel), for appellee. Before LACOMBE and SHIPMAN, Oircuit Judges. PER CURIAM. The bill was filed to restrain the infringement of a patent by the defendant, and for an injunction and accounting. The complainant's title is founded upon an agreement made in March, 1889, between the defendant and the firm of A. H. Newton & Co., by which the defendant transferred- to that firm a number of patents of which he was the owner. The bill alleges that by a mutual mistake of the parties to the instrument, and by the mistake of the draftsman, the patent in suit was omitted from the enumeration of those intended to be transferred. The rights acquired under that agreement by the firm of Newton & Co. were assigned by them, in August, 1889, to Alfred H. Newton, and by him, ill March, 1893, to James J. Dooley, and by Dooley, in February, 1894, to the complainant. Previous to the assignment from Alfred H. Newton to Dooley, and in December, 1891, a receiver of all the property and effects of said Newton was duly appointed by the supreme court of the state of New York, in proceedings supplementary to execution, founded upon a judgment obtained in that court against him. The receiver duly qualified, and on the 13th day of April, 1891. pursuant to the order of the court authorizing him to do so, sold and conveyed to one Vermilyea all the right, title, and interest of Alfred H. Newton in the patent in suit. May 5, 1895, Vermilyea sold and assigned all his right, title, and interest in the patent to the defendant. The present bill was filed in January, 1895. The evidence is overwhelming that it was the purpose of both parties to the agreement of 1889, to include, among the patents transferred, the patent in suit, and that it was omitted by inadvertence from the list of those mentioned in the agreement. The obstacle in the way of the complainant consists in her want of title to the patent. The proceedings supplementary to execution, as authorized by the laws of New York, are a substitute for, and in all respects have the same force and effect as, an ordinary creditors' bill. The receiver, in such proceedings, becomes invested with the title to all the property-equitable as well as legal-belonging to the judgment debtor at the time of their institution; and the court has. the powers of a court of equity in such a suit to compel him to appropriate his property, including that out of the state (see Fennerv. Sanborn, 3'7 Barb. 610), and transfer it to the receiver, towards the satisfaction of the judgment. In Ager v. Murray, 105 U. S. 126, it was decided that, notwithstanding a patent cannot be seized and sold on execution, it can be reached by a creditors' bill, and applied to satisfy a judgment against the owner, and a transfer by him be compelled for that purpose by the court. Although in the present case the court did not-as it might have done-compel Newton to make
a written transfer to the receiver of his title to the patent, it is en· tirely clear that any equitable title which he may have had vested in the receiver, and passed by the sale to Vermilyea, and from Vermilyea to the defendant, by the assignment from Vermilyea. Newton never acquired anything but an equitable title to the patent,the right to compel a reformation of the agreement of March 6, 1889. He did not acquire the legal title, because, without an as· signment such as the statute requires to effect the transfer of a patent interest, that title remained in the prior owner, the present defendant. Wilder v. Gayler, 10 How. 498. As that equitable title had, at the date of his assignment to Dooley, passed to the receiver, and the complainant's title is derived through that assignment, she took nothing by the instrument. The decree is reversed, with costs to the appellant, and with instructions to the circuit court to dismiss the bill.
WESTINGHOUSE AIR-BRAKE CO. v. NEW YORK AIR-BRAKE CO. et al. (Circuit Court, S. D. New York. October 13, 1896.)
PATENTS-VALIDITY AND INFRINGEMENT-AIR BRAKES.
The Westinghouse patent, No. 360,070, for a fluid pressure automatic brake mechanism, construed, and held valid and infringed as to claims 1, 2, 4, and 5, and not Infringed as to claim 3. The Westinghouse patent, No. 376,837, for fluid pressure automatic brake mechanism, construed, and held infringed as to claim 1 (65 Fed. 99, reaffirmed), and not infringed as to claims 3 and 4.
This case, which comes up for hearing upon pleadings and proofs, is a suit in equity to enjoin infringement of certain letters patent of the United States. These patents are three in number, viz.: No. 360,070, to George Westinghouse, Jr., March 29, 1887, for "fluid pressure automatic brake mechanism," complainant alleging infringement of claims 1 to 5, inclusive; No. 376,837, to George Westinghouse, Jr., January 24, 1888, for "fluid pressure automatic brake mechanism," complainant alleging infringement of claims 1, 3, and 4; and No. 393,784, to Harvey 8. Park, December 4, 1888, complainant alleging infringement of claims 1, 3, 4, 5, 7, 8, 9, 10, 12, 13, 14, 15, and 16. J. Snowden Bell, George H. Christy, and Frederick H. Betts, for complainant. Frederick P. Fish and Charles Neave, for defendants. LACOMBE,Circuit Judge (after stating the facts). Judicial opinion as to the validity. and construction of these three patents has been so fully expressed in the various decisions already rendered, and which are referred to below, that no extended disquisition is either necessary or proper in this court. Reference may be had to the opinions cited, for a statement of the reasons which have in· duced the conclusions hereinafter briefly indicated.