vol. ,59. wowd, be a failure. It will not be claimed, that, the inventor of an upon a previously patented combination can use one of the in a dWfi.rfed and incomplete way, but by its use receive the old resultant benefit, and escape the charge of infringement by reason of the low percentage of such use. The defendants' theory is that its use is so far unlike that of Edison that it can properly be said to be radically different. That theory is notsopported in the Waring speCification, and it does not seem to me to be supported by the facts. The statement in the specificationthat the atmospheric air may be at first exhausted as nearly as possible, and the desired gas then admitted, is significant. The amount of gas admitted Profs. Appleton and Carmichael's affidavits show to have been small. TM' defendants claim that the Edison patent, which was dated January 27, 1880, has expired, by reason of the expiration of the No. 4,576, for the same invention, antedated to November: 10,1879, but not sealed, and the specification of which was not enrolled until after the United States patent in suit had been issued. 'This question was recently examined by Judge Jenkins in Telephone Co. v. Cushman, 57 Fed. 842. He refers to the various decisions upon the question, and concludes that the invention is not patented abroad before the actual sealing and issuance of the patent, and that the term "patented," as used in section 4887 of the Revised Statutes, "does not mean the preliminary proceedings, but the actual issuance of the patent under the seal of the government, speaking the exel"tise of sovereign will, investing the patentee with the grant of a monopoly." In this conclusion I entirely concur. The motion is granted. The terms of the order are to be settled upon notice.
KRICK v. JANSEN. (Oircuit Court, S. D. New York.
PATENTS-INVENTION-FLORAL DESIGNS.

January 4, 1894.)

The Krick patent, No. 408,416, for a floral design, consisting at a toundationbaving boles in it, combined with picks tor balding the flowers in position, allows patentable invention.

1n Equity.. Suit by William C. Krick against Edward Jansen for infringement of a patent. A demurrer to the bill was heretofore overruled. 52 Fed. 823. Decree for plaintiff. Isaac S. McGiehan, for plaintiff. ,Louis C.Jtaegener, for defendant. WHEELER, District Judge. If the plaintiff's patent, No. 408,416, dated August 6,1889, for a fioralletter or design, Wll!S forthe letter merely, cOIlf\illtiIlg of the foundation,covered with flowers, as described, it w:o;uld be anticipated, and void. But it is tor such let· t.ers in com,bination wit4 the holes and picks for holding them in position OIl 1l0ral This, c9mbination seems to be new, and, q1.lite useful. It did not involve great invention; but great-

WESTERN UNION .'l'EL.CO.

v.

INMAN &: I. ,STEAMSHIP CO.

365

ness is not required for patentability. It seems to be sufficient for that. The defendant's letters have not holes through the foundation for attaching the picks to them, but have the picks at the edges of, and over, the foundation, attaching them to it in a manner equivalent to that. This does not appear to be a successful evasion of the patent. He seems to have taken the substance of the plaintiff's invention. Let a decree be entered for the plaintiff.

WESTERN UNION TEL. CO. v. INMAN & I. STEAMSHIP CO. INMAN & I. STEAMSHIP CO. v. WESTERN UNION TEL. CO. (Circuit Court of Appeals, Second Circuit. Nos. 32, 33.
NAVIGABLE WATERS-OBSTRUCTION BY SUBMARINE CABLE.

January 12, 1894.)

A vessel which, though touching bottom, forces bel' way by her own screw through the soft mud, is "navigating;" and if, while so doing, her screw is fouled by, and breaks, a submarine cable, the burden is <:In the cable company to sbow that the cable was so constructed and maintained as "not to obstruct naVigation," as required by Rev. St. § 5263; and this burden is not sustained when there is nothing to show the actual condition of the cable at the time, and it appears that it was originally laid near the end of an existing pier used by large ocean steamers, and over a mud bank, which they must necessarily plow through at certain states of the tide. 43 Fed. 85, affirmed.

Appeal from the Circuit Court of the United States for the South· -ern District of New York. In Admiralty. These were cross libels to recover damages caused by the breaking of a submarine cable by the screw of the steamship 'City of RichmO'lld, and for fopling of the screw thereby. In the district court the libel of the telegraph company was dismissed, and that of the steamship company sustained. 43 Fed. 85. This decree was affirmed pro forma by the circuit court, and the telegraph company appeals. Affirmed. Statement by LACOMBE, Circuit Judge:
These are appeals by the Western Union Telegraph Company from pro forma decrees of the circuit court affirming decrees of the district court, flouthern district of New York. Cross libels were brought by the parties, each claiming its damages sustained on August 16, 1887, by a fouling of the screw of the S. S. City of Richmond with submarine cables owned by the telegraph company, and extending under the North river from at or near Courtland street, on the New York side, to and under the Netherland ,Steamship Company's pier, on the Jersey City side. The Netherland pier was there, and in use by ocean steamers, before the cables in question were laid under it; and ocean steamers have been in the habit of docking at .Jersey City for 40 years. The cables of the libelant were first laid there in 1867, under authority of the act of congress of July 24, 1866. The district judge found the telegraph company solely in fault, dismissed its libel, and -sustained the cross libel of the steamship company.