M4.CK V. LEVY.

857

there was not sufficient patentable invention in substituting the snapwith a shoulder for the dowel engaging with a hole in a loop tang to warrant the granting ora patent; but on the case made here, of such long-continued public acquiescence, it is to be assumed that it was a meritorious imprOVElfilent, which defendants should not be nllowed to infringe, although they may, by substituting one casting for two, have themselves made an improvement in the method of producing the completed plate. Infringement of the Sessions patent is too plain for discussion, if that patent is valid, and, for the reasons above indicated, it must be assumed to be so at this stage of the case. Complainant may take injnn'Ction under claim 2 of the Taylor patent of 1878, and Sessions patent of 1882, with a clause reserving right to sell any and all goods made by complainant himself.

(C'iretdtCouTt, S. D. New York. March 21, 1892.)
PA'l'JIlNTS POR lNvBNTIONS-lNlIBINGEMlliNT-OPEBA.-GLASS HOLDEBS.

It is doubtful whether letters patent No. 268,112. issued November 28,1889, tor an improved opera-glass b,older, consisting of a detacbable handle, provided. with. a fastening device consisting of a piston hook and notcb on the end, bronghttogetber by a spring operated by longitudinal action, are infringed by a fastening device consisting of two jaws, one pronged or bifurcated, andtbe other with a uniform surface made to hold tbe bar of the opera.glass, SUbstantially by lateral pressure, by means of a piston screw.

In Equity. Under a bill filed by William Mack, an injunction was granted May 20, 1890, restraining Levy, Dreyfus & Co. from infringing a patent by making several fOrIDS of opera-glass holders denominated " A," etc., but excepting" C," in which the hook and notch of the patent do not exist, but consist of a detachable screw loop, the open ends of which were screwed together, (see 43 Fed. Rep. 69.) Motion to attach them for contempt in manufacturing a holder consisting .of two jaws, etc. Denied. H. A. West, for plaintiff· . James A. Hudson, for defendants. SHIPMAN, District Judge. This is a motion for attachment fur contempt by reason of the alleged violation of the injunction order of this court against the infringement ofletters patent No. 268,112, dated November 28, 1882, to William Mack, for an opera-glass holder. The opinion of the court in the original case gives a description of the inventionand the construction oithe patent. 43 Fed. Rep. 69. The invention of the plaintilfis popnlarwiththe public, if the number of imitations is a fair criterion of its success. The defendants' opera-glass holder, at the sale of which the present motion is directed, consists of a detachable handle, made in telescopic sections, the end section being provided with

858'

FEDERALREPORTEB,

vol. 49.

'l7bis consists oia pistoI:1 screw, whioh,causes the two :jawllfof;8; ,QtJ8'of them pronged ot. bifurcated; apq ,other of .I1osfbnh',nsce,O'to;approaeh or recede JrQPl each other,lEiterally. placed BetWlien:thejaws-of: this,hQlder the cross-bar atthQ and held.: -'Bhe'endsLoUhe'bifurcated jaw ,are providedwith,projections in; reply to the which the .plAiptiff regaool!laB hooks., The· charge ofinfri'lfigement;.sa:ys that the two jaws Qf the ,",faetening ar.ebnmghifJ.Ogetl1l3r laterally', whereas, in the ,patented ,device, the hook is made.> to.: approach a fixed lower jaw (called a .I'slot"in ,the patent) by: longitudinal action. Tbe hook is pulled dowu by tbe spring, and the edgesof·the..bar:are ,tightly:grasped hooksn!:Hhe slot. If the pateiJted, device is limited, bytbetermsofthe patent,'tQ alongUlld", inal action, there:is: i infringement, ,for the, ,new dev:ice m,ustoperate laterally, and it grasps the sides of the bar by lateral pressure. The mere fact that the means by which the two jaws are caused to hold the bar, is in the one case a spring, and in the other a screw, which operates laterally, is not important. As was said in the preceding opinion, th., means by which the together are not of tne essence of the invention, and it is riot necessary that a spring should be llsed, for oth«>r' like weans are properly ,within 6 por-tiQll of the claims of the patent. The hook and slot are the important parts ofth,e illventiQl,1., ho()k,which as Ii hook barinplaee, or its equivalent. Ido not thinkthat it iethe by the lateral pressure <!f',the jaw!!" these jaws are an equivlllent for ,the hook and SlOt of tbis patent. Arid therefore, if the two jaws new device act as a holder, solely or substantially by lateral pressure, there is no infringement. ':AQd here is rthe: vital question ,in the case, and the importance oftbefaiCt'of lateral pressure. !sthe hol<iing of the bar effected 41ubstnntially by that method,ttnd not by any hooking device, and are supplementary,itl aid' Of the l&terll1,pressu.re,but not worthy of1ireliance as a igrasping device? I have taken sorilepains f{) look into thi$partof'the case, which is easily capable of examination. 'When the cro$8-bar is wider than the jaw, it is held'by mere :lateral pressure, and the projections are useless as bolding devices. When the bar is of the same width as the jaw, the projectioniare helpful in preventing tilting, and, to a certain extent,aid in holding the bar, but the chief reliance is and must be upon lateral pressure. When the bar is nalTower, than tbejaw, the! projections stop a tilting orsidewise motion of the bar; but they do not adtasbooks to grasp it; I am thus constrained tothink:thatiinthis device the grasping and holding are substantially 'eft'ectedbjdateralpres/ilure,:and that the projections do'not perform the function of hooKa1o grasp.and hold the bar of the' opera-glass. There is, ,certainly; so :much reasonable doubt in the casecthat a motion of attachment should not be granted. The ttlotionisdellled.
ii,,'

.'",
'OvEBlU.N

NORroN

II.

nmsEl'f.

859

W:ium.

Co.' fl. EwoTT 'HICltORY CYCLE Co.

18llS.)

,Cot.'r&, D.

J'QB

, " th!, isill1l(l.g oh\1atent where. ('ltter alia, the mv,entJ.c>.llh,1&8 been descrlbEld'fn."an.r.foreigD country the,date of the llivention, a bill for tntrtngeIDent of __tent Sa demurrable whioh does no'

allep

I

,1':/.: : .' _

.·

.'

'.:

In Equity. Suit by the Overman Wheel Company against the Elliott Hickory Oycle Company for infringement of a patent. Heard on demurrertO the bill. Demurrer sustained. ' .' OhatmlkrZin, White & Milh, for cotr.plainant. Williaflnt. Redding, for defendant.

CoLT, Circuit Judge. Upon inspectionofthe patent granted to A. H. \)verman, April 14, 1885, numbered 815,537, for improvements in rubber tires for wheels, I am not prepared to say that it is invalid for want of patentable novelty. Taking this view, it seems to me it would serve no good purpose to enter into a discussion of the patent at this stage of the proceedings. The first three grounds of demurrer are therefore overruled. The fourth special ground for demurrer is that the bill does not aver that the alleged invention shown and described in said letters patent had not been patented nor described in any printed publication in this or any foreign country before, the date of said alleged invention. An allegation ohbis character appears to be necessary, under the provisions of the statute, and the so held. Rev. St. § 4886j Comolidnted Bmke Shoe 00. v. Detroit Steel &; Spri:ng 00., 47 Fed. Rep. 894; C'i>0P v. Institute, ld. 899. Upon this ground lshall sustain the demurrer, with costs, with leave to the qomplainant to amend ita bill within 10 days. Demurrer sustained.

NORTON

et al.

'l1. JENSEN

et al.

(Circuit CO'Un't oj Appeals, Ni.nth. Cwcui.t. March 10, 1892.)
\.

WhUe the opinions of experts in patent cases are entitled to as the juc1srIDent of perlons skilled in the partIcular IDatter under investigation. yet they are not binding upon the court, and win be rejected if they do not appear reasonable and satisfactory·
It is the duty of courts to construe a patent by a reference to the langnajf8 of ita claiIDs,.and an sxaIDination of the speciftcations and drawings acooIDpanying the saIDe.
B.um-OBIGINAL INVBNTOBS-INPRINGBM:BNT. OF PATENTS.

INVENTIONS-ExpBRT EVIDENCB.

...

a.

Oril¢nal inventors have the right to treat as infringers all persons who IDake devices or IDachines operatinlr on f.be saIDeprlnciple and perforIDing the same.funl> tions by analogous IDeans, or eqUivalent combinations. even though tbeinfringing IDachine may be an iIDproveIDent of the original, and patentable as suob.