660

FEDERAL REPORTER,

vol. [) 7·.

has also the theory and parts of it improved upon, and still appears
to be substantially the same. Therefore, it appears to infringe. Leta decree be entered for the plaintiff. .

It may have fn'rprovements upon the patented machine·. !t;;'Q,

it

HOLLIDAY & SONS, Limited, v. SOHULTZEBERGE et aL

(Circuit oourt, S. D. NeW-York. September 29, 1893.)
'PATENTS FOR INVENTIONS-

In' a suit for infringing a patent, a commission to witnesses abroad will, in a proper case, be granted for the purpose Qf obtaining expert testimony; and sllchcommisslon should be gral1ted in the case of a patent involving the chemistry of coloring compounds, when it is asserted by the moving party, and denied py the opposing party, that the art is

TO EXAMINE EXPERTS.

80

little practiced here that the best expert testimony can only be obby a commission.

III :EqUity. Bill by Paul Holliday & Sons, Limited, against Paul Schultzeberge and others to enjoin the infringement of letters pat· enti Motion fora commission to Cowen, Dickerson, Nicoll &. :Brown, for complainant. Goepel & Raegener, for defendant.

LACOMBE, Oircuit Judge. This court is practically asked in this case to prescribe' a new rule of procedure, to the effect that in patent Cases commissions to examine witnesses abroad should not be granted for the purpose of eliciting merely expert testimony. It is urged that such an examination can rarely, if at all, be conducted upon written interrogatories, and that the issuing of open commissions for such purpose entails a very heavy expense upon litigants. There is much force in the argument. The cost of such litigation is already great, and, where equally competent experts can be found in this country, it would be desirable, in most cases, to confine the expert testimony to such as might be elicited from them; but it is hard to see how the court can make any general regulation upon the subject. It would seem unwise for it to undertake to decide in advance whether the experts who can best inform it as to the prior state of the art are to be found here or abroad. Upon the argument of this motiollit was asserted, and the assertion disputed, that within the field of the patent, viz. the chemistry of coloring compounds,' the art was so little practiced here that the best expert testimony could only be a commission. The interrogatories are therefore allowed; under the arrangement as to method of taking proof before thec()nunissioner, which was suggested by the court, and apparently a:ssented to by counsel

THE, GOLDEN GATE.

661

AMERICAN BELL TEL. CO. et at v. McKEESPORT TEL. CO. et aL (Circuit Court, W. D. Pennsylvania. August 21, 1893.) No. 20.
PATENTS FOR INVENTIONS-PRELIMINARY INJUNCTION-EFFECT OJ' DECISION OF SUPREME COURT OF UNITED STATES.

A decision of the supreme court of the United States, sustaining a patent, must be regarded as conclusive, upon a motion for preliminary injnnction.

In Equity. Suit for infringement of letters patent. for preliminary injunction. Granted. J. J. Storrow and J. I. Kay, for complainants. W. Bakewell and John McDonald, for defendants.

On motion

ACHESON, Circuit Judge. Alexander Graham Bell's second patent, No. 186,787, dated January 30, 1877, here sued on, was sustained by the supreme court of the United States in The Telephone Cases, 126 U. S.. 1, 8 Sup. Ct. Rep. 778, as to the 3d, 5th, 6th, 7th, and 8th claims. Now that decision must be regarded as conclusive, upon the present motion for a preliminary injunction. Purifier Co. v. Christian, 3 Ban. & A. 42, 51; American Bell Tel. Co. v. So'Uthern Tel. Co., 34 Fed. Rep. 795. Infringement by the defendants of said claims is, I think, clearly shown. Indeed, in the affidavits submitted on the part of the defendants, it is not alleged that the telephones used by them differ materially, as respects the features here complained of, from the telephones which were adjudged by the supreme court to infringe the patent. A preliminary injunction, therefore, must be granted against the McKeesport Telephone Company and the other defendants who are citizens of Pennsylvania.

THE GOLDEN GATE. ATLANTIC COAST STEAMBOAT CO. v. THE GOLDEN GATE. (District Court, D. New Jersey. :July 13, 1893.)
1.

SALVAGE-WHAT AMOUNTS TO SAI,VAGE SERVICE.

The steamer Golden Gate, while proceeding to her wharf at Atlantic City, having become disabled by the breaking of her rudderhead, at about 2 o'clock P. M., cast anchor, and signaled for help. The sea at the time was rough, and the wind blowing from the northeast at the rate ot 20 or 25 miles an hour. 'l'he steamer Atlantic City, then lying at her wharf, about a mile distant, in response to the signals, proceeded to the assistance of the disabled vessel, and, after several attempts to tow her, cast loose, and left hel' in her original position, Hekl, that the assisting vessel, having failed to render any successful BeI'Vice, was not entitled to salvage. Subsequently, at the request of the owner of the disabled vesse), the Atlantic (",'ity again proceeded to the assistance of the Golden Gate, which

11.

SAME-TOWAGE SERVICE-STALE CLAIM.