FED;EltAL REPORTER,

vol. 48.

tides, or ,or, home' articles ingeneral,or to in any way check the business ofthe sale' brought from. other states in trade.. It is not laid upon foreign goods as such. LIt 'simply'lays an equal tax upon all North Carolina merchants,aft'ecting alike their home and foreign trade. The impositionofthet&xis'pne within the power of the state, and violates no provision of tlieoonstitution ofthe United States. I have not'inquired into the question of whether or not this application isprematlirely brought. 'The, petitioner is imprisoned, not for refusingtp,pay a tax, but for the preliminary matter ofrefusal to make a sworn statement of his purchases. I simply note the fact. The de· clsion is placed,on the constitutionality of the law, the matter upon which I un.tlerstand both parties (the state and petitioner)deeire an opin. ion. The petitiort", showing upon its face that applicant is entitled to a writ denied.

WHITNEY !1. BOSTON

&

ALBANY

R. Co. et al.

WflrCutt Oourt;D. Massachusetts. December 14, 1891.)

Letters patent No..259,958, granted June 20, 1882, to Baxter D. Whitney for im:provements in wodd-planin/r machines, were for a pressure-bar supported and ." guided prc>).eptj.ng from it,sends,and workingin'curved grooves or pad, form,, concentric W'ithtbil journals ,ot the cntter cylinder, with an elastic ing a supplemellta.l !flexible foot 'and distributive pressure regulator j the pressurebar on the rey or side the cutter cylinClE;lr for the purpose ofliearlrik lipon the lumlier, and holdulg\t firmly to the bed-plate. Beld, t4at l: : ,this is'infringed; by a machine wlii"b has a tlrbllsure.ba'r'with durved guides engag. . '. lng. with; g:rOOVIl,Il rOllnd ,t/1e ,boxes of the cutter cyl'-inder; 8tieldfng- pressei--foot'conslsting of an elastic plate, having a bearing surl face adllipted,t() Ilegulihethe pressure to' correspond w1th'the'val'ylng thicknesses ( the WOQd,i.: 1lJ:I.e of a llexible .pad with lIouxiliary.support to pre." . 'venl. undue aetlect,!on. 9,S.a.:ME-SUIT FOB INlrRiNGEMENT-l-INTERLQC(;TORY DEimEE. :: 'Where i/l-frl.ngement of a patent is brought,aga.inst the users of a single machinewJ!o purchlllled it from toe manufacturers, and who have nothing H to do with 'its' '06illltruction.tlle interlocutory decree for plaintiff will be for an , a.ccount ,! . ' . ,

1.

PATENTS FOR lliVlll1V\I'IONS-INFRINGEMENT-WOOP- WORKING MACHINERY.

D.Whitney against Boston & Albany othexa for the infringement of a patent. Dp,vid Hq,ll Rice,: for com ,Parkinson .£to. j>arkinson, fQf defendants.

tn :Equity.

of ,wood-working plRchiner.y, took out a patent (No. 259,958) for improvements in machines.' 'I'he invention, so far as it is covered by the second :and third claims of the patent,-the only claims which are in controversy in this 8uit,-consists of a presser-bar supported and guided by curved .levers projecting from its endsiand working in

NEJ.sON, J., ,Onthe 20th of June, 1882, the plaintiff', a manufacturer

BOSTON & ALBANY

n. co.

445

curved grooves concentric with the journals of the cutter-cylinder, with elastic plate or pad,Jorming a supplemental flexible foot and distributive pressure regulator, the section of the bar being curved above and upright below. The presser-bar is arranged on the rear or incoming side of the cutteroylinder for the purpose of bearing upon the lumber and holding it firmly to the bed-plate. The defenses are want of novelty, nan-infringement; fl,uticipation, and public use and sale more than two years prior to the application. of the invention is apparent. It serves t,Oprevent the lumberirombinding, adapts to the inequalities Of the wood, and chips from b!ling throw,n back upon the cutters, and the machine can be run with less power. The superiority of its work is shoW:I:l b"ythe in the case. The planing-machine in use in the railroad company's shop is provided with projections which, in function and efl'f;lct, are practically the same as the plaintiff's levers. It has curved guides engaging with curved grooves, formed concentrically round the journal boxes of the cutter cylinder. It has a yieldillg presser-foot, consisting qf an elastic plate, baving a bearing surface adapted to regulate to correspond with the varying thickness of the wood. It the has a combination of a flexible pad, with to prevent arrangement of the presserundue deflection. The whole bar is a manifest imitation of Whitney's device, and is a plain infriilgement of thesecpnd and third claims of the patent, unless the remaining defenses arc goOd. For the purpose of showing anticipation, the manufacturers of the infringing II1ll,Chine, who are the parties defending this suit, haveteferred to anutnbet'of'patents granted prior to that of the plaintiff. It is enough say that lnrinne orthem can "be found the perfectly working combinations.Ofthe second and third claims. The'same may be said orthe mitbh\nes by J. A. Fay & early as It is incr$aibletpatthis 'v'aln.able improvement should have beenkno,!D so many years; and yet put 161 nO practicable'use until the plaintiff intra-, duced it intQ his machines. , It ''tbv,t t46' device covered by the seconcl al,d third claims of be f9und in machines,D;lanufaetured \Sold by the plaiil;tift:IAor,e'than tw() years before the, filing of his application in the patenti-Qume,. 'The evidence, however,. proves thatatethis time the' plaintiff waseBgaged in experimenting upon improvements in presser:.bars, that the machines 'were sold undergtlarantles for experimentill purposes, and that theY,aU lacked the auxiliary support, which is 'an important its function ,being to relieve the flexible foot, element Itncl prevl::nt its, breakingwpen it comes in contact with inequalities in the wood. As, the railroadc()mpany are theuBers of a single machine purchased of th'eroanufacturers, and h ad nothing to do with itS' construcfo: the plaintiff will be for an account only, tion, the abd no injunction 'is to isslie' agllinst the defendant until the further order of the. corq-t,; and is, 80 ordered. '.

to

o!i ··

446

:1'ED£Rl.U REPOMER.

vol. '48.

"i

... ,J

·,A,.lo!lNsToN & Co.,;tLiJilitedl'v. AMERICANIlEA:Tl INsutATI,NG Co·· , ,Li ':'/i;' Limitedl.Jtt"al. ,: ,Y! '
· j,

{j:,)

j

l

j

;,

I": f

(Circutt

Jf. D, PemI.81iW4'l\'!Q.

8i JM1,)

conductinll" covering composed of layers with ad" while formed llectionll of a .. 'Dea&of,O'ne'haIUnoh'orll1ore, llubstantially'!lS llhcwn'anftdeBcribed.... , In the reis. , ;,:IlU.... WOftlll, or, RWrn, omitted. j but, il; . '. appeared tl\ata coverIng for the o,nl;l-half oe lu'Oparatlve an.d uS'aless; ..', ,in. clJj W.00,la laCk the DOD:jdj).ndU'etmg,p1'.0.»e."rty.Bod woti. Ml . . .. . ,practiC;B '9f tbe tIl,:<entioo, the of, greater tlJjo!i:nesll. ana: mUllt bejaiJd the 'infringmg tQicknells. Held t,iJat, all the oWission dId noti Jteally enlargll the patentee's rigl11lS;tbe change was' muna., tillfillil, did not avoi4JtIJ6 pa.tent. " '; . . B. SAME.· ' . . "',',. .', . '. ," , ,, ' Ihthe claim of the rale'sue, the wordll' "'o'tcioated" were' 'iJlS'ettM after the word "satJ:u..tod.;'" .HeW,tha.t the two words' were used evidently-as alternatJve expres" the " ,

non.

Jam,ea}-{(ayand.'"'..jiakeweU,

Before ACHESON and R:E:E.D, JJ.

for

I , · .

W.

;P?f"ce, .

,. I

ACHES&N','J. The plaitiHfi', the assignee'of patent No. 8, 752,dateq June 10, 1879, inventor, John C. Reed,assues the. defendant forthE('infringernent thereof. The in,signor, venti<?n, which is an ,41 coverings'rqr and pipes;'consists of a c6ve:tiJ:lg, Qf1ayers or pings of paper' saturated 'or coated with \niaterial,and comp.res!!ed, while into,tu,pular sections; and capable of beas placed' arOu,lld the pipes or other ,ing .surlaces:u) 'be' covered. I The the method of making the covering: " , ".' .. covering from plfop,er·.for purpose I

prefer, and 'generally etoploy, wbat .is' termed paper. :tbough other be used. ppona revdlving mandrel ulated tOl" whloh tbe coypring is intended, and generally a seotionotpipe:of tliesame diameter as the pipe to the covering is to be applied, Lwinq.£ or wrap roofing :Q'9tber paper. the same time applylug t,o the layersLo adhea,ion. making tion on thefreeeOd of the paper, s() as to tbe wrIJPping!!:firmly and smoothly. In addition 'to 'tpetraction, which will compact thecpvering,I, lllakeuseof pressure by'means of weighted fdction bar or plilte; or in manner,soRstoi,nsure a dense,flrm structure This operation is continued lIntil a covering of sufficient thickness has'been applied to the pipe, ,when, if tbe qoveringhasbeen fOfllJCMl on this pipe,'{tak-ing the place of a mandr.el,.,). u.po. . w.hi.c.b it.'.lS. to rero.ain.".. . .e.. ove.l'i.n.g:J;Ila.y. . . tiniS.he.d by.. . app.I.Y." .ing a :suitahle !,:pat of paint, which and rapidly done by revol,,:'! 'lng'tbe pipe before its removal; l1ut, it' .the ('.overing has been formed Qn a mandrel 01" pipe witb which it is not intendedtduse it, it may be coated with paint at the time. and then withdrawn from the mandrel, to be afterwards