the freedom', t)f 'individuals in the' of their business. 'Complainant is not entitled to the l,'elief prayed for, and the decree will be that the bill of be dismissed.
, ' > " " '
FLOMERFEV;r, v. etalr, (Circuit Court, S. 1>. New York. JUly 8,1898.)
patent, for the, desigp., ot ,the same ,article, and, hence the me-; paten,t l,l! Immaterial on the question of anticipation ot the patent. ' '" ',' , , 9. Testimony ot a witness as to the' date when an alleged anticipating article came Into hlsp(Jssesslon, wfi!rely from recollection, unsupported by, any other proof, and not ,fixed in his mind by al).y other occurrence whIch can be Itself in, Is insufficient to prove prior use.
SAME. USE-TESTIMONY FROM :kECOLLECTION. '
An Inventor may take out' a patent tor mechanical construction and
froof that .slx pairs of curtbutton links, like those covered by a patent, Were made' by another prior to the date of the alleged Invention, is suffi· clent to invalldate the patent, though they never went Into general use. The design patent, No. 24,091, tor a cuft button, Is void be-; cause of prior use.
FOR CUFF BUTT(JNS.
This was a suit in equity by James FlomerfeIt against Morris J. Newwitter and another for alleged infringement of a patent for a de· sign for cuff bu'ttons. Edwin H. Brown, for complainant. R. B. McMaster, for defendants. Circuit Judge. Design patent, No. 24,091, for a de· sign for a cuff button, was issued to complainant, March 12, 1895. The specification describes the design as "consisting essentially in the shank portion, 2, of the cuff button, having- double inclined or forwardly projecting or converging front or outer edge, 1, as combined with or viewed in connection with its angularly disposed heads, 3, 4, at opposite sides of the shank, said heads being inclined towards each other from the rear towards the front of the button, whereby the general planes of the heads tend or lean towards the planes of the two adjacent forwardly converging, angularly disposed parts of the front edge, 1, of the button shank, all as shown more clearly in the figure."
FLOMERFELT V. NEWWITl'ER.
The precise shape and style of ornamentation of the heads are not material. It is the shape of the shank or link, and the disposition of the heads relatively thereto, that constitute the design. Defend· ants' cuff button is plainly an infringement, and the only questious to be discussed are anticipation and prior use. Anticipation is not shown by the prior patents in evidence. The design appears in patent No. 518,595, April 24, 1894, issued to the same patentee (complainant), for the mechanical contrivance of a rigid shank, so shaped and connected with the heads as to "clamp the cuff against the sides [of the shank], and maintain the ends of the cuff separated and in a rigid position." This patent, however, is imma· terial, as complainant had the right to take out a patent for me· chanical construction and a separate patent for the design of his buttons. The cuff button shown in English patent No. 12,394, of 1888, to Sommer, certainly would not appear to be the same in design as com· plainant's to an observer not an expert, giving such attention to de· tails as the ordinary purchaser usually gives, which is the test with design patents. The button of the Ireson English patent, No. 1,171, of 1889, is still further removed, since it has no single rigid shank, but two short shanks connected by a ring link, and ca pi! ble of assuming different positions relative to the heads. In the Williams United States patent, No. 277,095, of May 8, 1889, the shank is only slightly convex, not presenting the appearance of the W of the patent in suit. In the Smitten United States patent, No. 400,132, of March 26, 1889, the heads are not angularly disposed. The button of the Peck United States patent, No. 470,411, of 8, 1892, is much like the Wil· liams button. TIle Watson United States patent, No. 538,395, is not prior. Application was filed January 31, 1895, and complainant's ap· plication October 30, 1894. A button was produced by the witness Pappie which is similar in all respects to complainant's; but, although he says he thinks he came into possession of it in 1892, his recollection as to the date, unsupport. ed by any other proof, and not fixed in his mind by any other occurrence, whieh can be itself located in time, is insufficient to prove prior use. )'1ost of the testimony is directed to an exhibit known as the "1879 Link" or the "Ox Bow." The shank of this exhibit is a little flatter than complainant's, and the sharp projection at 1 in the figure is rounded off. Neverthelf'ss, it resembles the button of the patent so closely as to be an anticipation, if prior' in time. It is unnecessary to discuss the details of the testimony. Suffice it to say that it satis· fies the court that, at a date some years before the application for this patent, at least six pairs like this "1879 Link" were made in the factory of the witness Devereaux. Entries in books and changes in business arrangements of sufficient importance to fix dates in the minds of the principal witnesses ennble them to fix, relatively to such entries and the date of the manufacture of these links. It is true that they never went into generaillse, not pleasing the taste of the trade, :but they are not for that reason to be rejected as an abandoned experiment. . The design was completed, and was used at
least for:· a.sOOrt 'time by two or' (;h,lee'of' the ,witnesses. That seems to be sufficient to'oonstituteapllwr use. . Defendants may take a de· cree dismissing the bill. , ." '
OARY MF.G. CO.
Box STRAPS. The dary patents, No. 441,354, tor a "method and machinery tor makIng metal box: straps," and No. 441,353,' tor a box: strap cut with beveled edges from Ii sheet of metal, and 'such edges "curled inward upon them· selvell," and pr,essed down upon the edges of the band, construed, and hel!J, not' to' .' either the or. product of rolling the straps beordinarY flat rollers, eveliltthis produces curling Inward of the beveled edges, as described In the patent.
PROCESS AND PRODUCT,}lETAL
(Oiret1rt ICourt, E. D. ,,'. .
,DE HAVEN. March 29, 1898.)
The Cary patent, No. 403,247., ,for an In reels for box straps,hela valid as to claim 2, asdisc10slng patentable Invention In the combination, arid also held Infringed. '
Final hearing, upon pleadings and proofs, of bill in equity alleging infringement of three patents issued to S. C. Cary, and assigned to complainant. A. G. N; Vermilya, for complainant. Comstock'& Brown (Albert Comstock, of counsel), for defendant LACOMllE, Circuit Judge. The patents are three in number; No. 403,247, issued May 14, 1889; No. 441,353, issued November 25, 1890; and No., 441,354, issued November, 25, 1890. No. 441,354 is for improvements in, "the method of and machinery for making metal box straps." Box straps are made 'by cutting strips of metal of proper width from a metal sheet, and uniting said strips endwise to constitute a metal ,strap of indefinite length. The action of the cutting or slitting knife in separating the bands Or strips from the sheet edge produces a sharp and somewhat inclined edge or "burr" on each side along the ballds or strips. The specification states:
"The knlte, .as It' passes thE! s'heet metal, deflects or bends It more or less along, tlie line of the cut 'to', somewha t below or beyond the plane under f&OO of the sheet, and, as it' makes the cut, forces or carries the metal to on each side of th.e cut, lI.$;plalnly shown a.t a. These sharp