KUNDY fl. LIDGERWOOD MAlOUF'G CO.

541

MUNDY 11.

J...IDGERWOOD

MANUF'G CO.

(Oircuit (Jourt. 8.. D. New York.

March 27,1888.)

1.

PATENTS FOR INVENTIONS-COMBINATIONS-USE OF DIFFERENT ELEMENTS.'

Under the ruling in 20 Fed. Rep. 114, Icker's patent No. 9,299, for an improvement in friction drums for pile-drivers was confined to the peculiar' elements of the combination therein described, one of which waS a cross-grained friction surface; and the use bya defendant. against whom an injunction had been issued restraining the use of the patented device, of a drum bRving a sidewise friction surface, is not a violation of the injunction.
VIOLATION BY CARELESSNESS FAILURE TO NOTIFY

2.

SAME-INJUNCTION AGENT.

The carelessness of a defendant. against whom an injunction has been obtained res raining him from using a patented device. in omitting to notify his agent of such injunction and its effects, will render him liable for a technical contempt for sales of the patented articles by such agent after the injunction had been obtained.

In Equity. On motion for sequestration, and attachment for violation of an injunction. Prederick H. Betts and Ernest O. Webb, for complainant. Edward N. Dickerson and Livingston Gifford, for defendant.
LACO:lfIBE,J. This is an application for sequestration against the defendant, and attachment against its offieers for violation of an injunction. The decree enjoining defendant was made by Judge WHEELER upon the pleadings, proceedings, and proofs, May 5, 1884, and was duly served upon defendant. The grounds of decision are set forth in the opinion reported in 20 Fed. Rep. 114. The patent is for an improvement in friction drums (windlasses) for pile-drivers and hoisting machines. ltis claimed that the defendant has violated the injunction in three ways-First, by selling through one of its agents or consignees two machines with drums precisely like those which were held by Judge WHEELER to infringe the patent; second, through the furnishing by such agent or consignee.of springs for the use of purchasers pfits old machines, which had been sold without the springs, and which concededly did not infringe unless the springs were inserted; third, by making and selling friction drums of a new model, the variations from the old model being, as complainant contends, colorable only. The last of these propositions will be first considered. Both sides concede that, for the purposes of this motion, the construction put upon the patent by Judge WHEELER is to be taken as final. That construction, however, must be itself construed, and the parties not being in accord on this point, the former opinion must be analyzed in order to determine precisely what the injunction forbade to the defendant. The record and the arguments upon which Judge WHEELER'S decision was predicated (and which are presented .on this motion) show that it lies border land of the doctrine which finds inventive facwithin the ulty in mere mechanical recombinations of devices old, well know:n, .anG already ,otherwise combined. The opinion must, therefore, be strictly

542

," , ., . ' FEDERAL REPORTER..

,.I.

construedj every element of the combination which, by express language or fair intendment is enumerated by the ,court as en.tbring into the new combination,lpust be taken as essential. The ingredients of the combination whose' patentability the court sustained willbe'found recited in the fropl its opinion:, this by providing a conical projection on the side , of to the drum; of marly the same 'diameter. made of of wood·. with the bfoadends outward 'forming a tapering fricti.91fl'lurface on, the ends of the wood. and a circular: flange projecting from the circumference of the drum. loose on the same shaft, to fit tightly over tbe1lriction surface on the wheel when pressedtowanls it. and a spring coiled about the shaft between the wheel and the drum, to separate the surfaces. ',The specification mentions a shell or !lange on the side of the gearwheel$upporting the wood, and describes mechanism for pressing the drum towards the wheel. and l,)rlnging the surfaces togethpr. The claim iafor a combination of the drum, loose, and the gear-wheel having the friction cone and side flange to support it and spring to repel it, fast upon the shaft, for this ,. ,, The phrase here used, viz., "forming a * ** friction surface on the ends of the wood," clearly imports that the friction surface intersects the grain of the wood. Grammatically it can hardly mean anything else. All doubt, however, as to its meaning is resolved by a consideration of other parts of the opinion.. Thus the court says: "Frictiol1surfacellj one of. metal and the other of the ends of. wood, * * * were old and well known." "Letters patent were gmnted to Knowlson for improvements * * * presenting friction surfaces composed of the ends of the wood of each piece." This language plainly indicates what the learned judge understood by the expression, "on the ends of the wood." The complainant insists that the Knowlson'patent does not in fact say anything about a cross-grain friction. That patent, however, did in fact describe the sections of wood of which its friction surface was composed in language not inconsistent with a transverse engagement, and an examination of Fig. 3 therein shows that in no other way could there be any pretense of the improvement in durability asserted in the third pamgraph. The questionhere,however, is not what the Knowlson patent sa)'s, but what Judge:WREEI,ER understood it to say. An examination of the testimony 'and arguments which were before him can leave no doubt that he understood that the Knowlson patent covered a friction surface across the grain of the wood, as shown in the very model, which was before him, ,and,has been presented here and that, in his enumeration of the ingredients ofcomplainant's combination, he intended by the use of the phrase "on the ends of the wood" to.,designate a cross-grain friction surface. In the neW model drums of the defendant the grain of the wood is not presented endwise to the wear, but sidewise, and thus one ingredient of the iconlbination, which, as a combination only, ·was held to be patentabl6, 'is omitted. The defendants also insist that they . now use a V friction instead of a cone friction, and thUB dispense with , . another ingredientof complainant's combination; 'Upon this' point there . is a conflict of testimony. The friction surface is undoubtedly V-shaped i

,.HE A 'fLAB.

54&

but complainant insists that one side of it is a dummy. which does not engage with the flange, and that thus the engaging sur16ce is in fact a cone. Upon all the evidence I am of the opinion that the complainant has not established his contention by a fair preponderance of proof. In view of the disadvantage, however, under which the moving party labors in motions of this kind, should send it to a mast,er to take further testimony on this. point, were I not satisfied that a cross-grain engagement must, upon every application made at the foot of Judge WHEELER's taken as au essential element of the patented combination. Nor is this conclusion modified hy a careful examination of Judge NIXON'S opinion in Mundy v. KendaU. 23 Fed. Rep. 591. The learned judge in thatc!!-8e only indicates what upon the affidavits before him he understands to he the extent of Judge WHEELER'S decision. If the record which is presented here had been laid before Judge NIXON, he would no doubt adopted the same construction as that indicated IfUpra. As to the alleged infringement arising from the furnishing by Mr. Wormer ofl;)t. LouiEl oftwo springs to be used in old model machines sold without them, I do not think his relations to the defendant are such as to warrant . it for his act, in the absence of any evidence from which acquiescence in such act can be inferred. As to his sale of the" two old infripging machines, however, the defendant has not shown the same care .in notifying him of the injunction, and its effect, that it used in the case of its goods on sale in Boston, Philadelphia, etc. This carelessness has caused a violation of the injunction, constituting a technical contempt. A fine of three times the royalty which complainant charges, in analogy to the provisions of the law as to damages, would an l:ippropriate penalty therefor, but the exact amount may be dewrmined upon settlement of the

THE ATLAs. l

THE

LIZZIE Wn..80N.

'l1.

CHADWICK et ale

A'fLAS S. S. Co.

(District Court, E. D. New York. March. 7, 1888.)
CoUIMON-STEAM AND SAIL-FAILURE TO KEEP PROPER LoOKOUT.

The steam-ship A. was bound down the Atlantic coast on a comparatively clear night, when, some 50 mile/! south of Barnegat, she collided with the schooner L.W.. For the damage the steamer was libeled, and set up in defense an allegeli change of course on the part of the schooner, averring that the :lirst light of the schooner seo.n by her was the green light over her starboard bow, wherellPon her wheel was starboarded; that the Ijght afterwards changed \0 red. oli which the steamer's wheel was ported,_ but too late to avoid the collision.· The schooner swore that her course wits not changed. From the
.G. lll\nedict, Esq., of the New York bar.

1 Reported