ANDERSON ·11. ErLER

ee aL

(CinmU Coon oj .AppelJ.ZI, TMrd06rcufC.Haye, 1891.)

A person who had produced maotels of a D.ew design sold two of them to · mall ufacturer, who avowed an intention to use them as copies. Beld that, although the sale .wasat the usual price, it must be cooBidered as equivalent tQ a consellt that the manufacturer might use the deBigo, and the inventQr, having BubsequeoUy obtained a patent, could not aue the manufacturer or his customers foriDfringemen'L BAlIII!. It was immaterial that the inventor Bold only upon the auertioa that he would purchase elsewherej it appearing the mantels were OD 8ale by othen. 46 Fed. Bell. 717,aftil"lIled.

L

J'OB INVBNTIONS-LICEN8B.

Appeal from the Circuit Court of the United States for the Westem niemct of Pennsylvania. In Equity. Suit byw'illiam Anderson againl5tEiler, Breitwieser & Co., for infringement of a patent. The bill waa dismissed, and complainant appeals. Affirmed. W. L. Pierce, fo.rappellant. James Aylward Develin, for appellees. Before ACHESON, Circuit Judge, and BUTLER and GREEN, District Judges. BUTLER, District Judge. The. suit is .for infringement of letters patent No. 19,872, granted to William Anderson, June 23, 1890, "for designs for The mantels sold by the respondents are after the complainant's design, and are covered by his patent. They were purchased fr()m Mershon, Brown .& Co., who made them. Several defenses are set up, them a .licetlse in Mershon, Brown & Co. j and as we think this is sustained by the proofs, we need not consider any other. It appears: that' Mershon, Brown & 01)., who are manufacturers of mantels; wishing to use this design, (not then patented) purchased from Mr. Anderson (through an agent) two of his mantels, as samples, for this purpose. The agent ex.plicitly informed him of their object in the proposed purchase, as the proofs show, and as he admits. He thus sold knowledge that the only object in purchasing was to copy and use his design, and did it without objecting to the use contemplated. The inference is therefore, we think, irresistible that he consented to this use. Whether he actually consented or not, however, the circulpstances estop his denial. His silence at the time closes his mouth. If he did not mean to consent he should have said so. Such deni.al now, and a. recovery of damages for infringement, would constitute a fraud. It is true that the sum paid for the mantels was not large; uomore than the usual price for their common use. Whether it W8S disproportioned to thevl:l1ue of the special use mentioned depends upon the question whether a monopoly in the design was then contemplated by either party. Clearly Mershon, Brown & Co. didnotcontemplate it. The18upposed the desIgn was open to the public, and Yin..

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J'ED1!;llAJ,.· :l1EJ;'ORTEB, vol. 50.

ally declared so at the time. Whether Mr. Anderson then intended apthougb somewhat plying for a patent is nQt.c1ear. He qid tardily, apply. But whether the sum was disproportioned to the value of the special use is not important, in view of the fact that this use was distinctly in the minds of both parties, and that the money was paid and received on the basis of it. We do not see any force hi the suggestion that Mr. Anderson was constrained to sell by reasOQ 9f Mershon, Brown &Co,'s assertion that they could and would purchase elsewhere, for the purpose contemplated, if he No deceit or force was employed. The assertion was truej others'Viere selling the mantels·. He was left free to sell or refuse. It may be implied from the evidence that he hesitated, and considered the consequences before deciding. .He must have known that if he refused, and the samples Were obtained: elsewhere and his rights violated, the law would afford him protectionj and the fact that he did so hesitate and consider before sellinglends:add-itional strength to the inference that he consented to the uS'e contemplated, in consideration of the price received. The decree of the circuit court is therefore affirmed.

:SNOWDEN.

(Otrcu't Oourt 01 ApP«,itB, TMrd. OWcu1.t. April 119, 189l1.)
.

DIlIlIGtt EATBNTS-NoVEJ.TT-OiIAIR BAPP.

No. 18,405, 14. 1882. to' Henry H. Paine for a de.lgrtfor common round bow-back chairs, consisting in thft upper part of the bow rounds providlld with a IIhee. Qf·· .uitable material, as WOOd, bent to conform to ,1Ihe curvature of the bow-baok and rounds, leaving the rounds between the Illieet'and seat efposed, is void for want of novelty. Aftlrming 46 Fed. Rep. 189.

.

Appeal from the CircuitCdUrtof the United States for the Eastern District of Pennsylvania. . In Equity. Suit by Henry H. Paine agjainst William H. Snowden for infringement of a patent. The bill was dismissed below, (46 Fed. Rep. 189,) and complainlintappeals. Affirmed. Horace Pettit, for appellant. H. T. Fenton, for appellee. Before ACHEsON, Circuit Judge, and WALES and GREEN, District Judges. ACHESON, Circuit Judge. This was a suit in equity for the infringement of letters patent dated November 14, 1882, granted to Henry H. Paine, the complainant below and appellant, for a design for chairs. The pate[}.t has four claims. The first and leading claim is as follows: "(1) THe Unproved design for common round bOW-back chairs, consisting

In the upper part of the bow and rounds prOVided with a sheet of suitable material; as wood, bent toconforill to the curvature of said bow-back and