[United States Circuit Court-Eastern District of Pennsylvania.] Decided May 5, 1884. 28 O. G., 98. The court cannot consider whether a claim might have been made broader in view of the invention described in the specifications and drawings. If it fails to cover all the patentee intended to secure, his remedy was through reissue. The court cannot enlarge the patent by construction. The patent, as it stands, held not to be infringed. Mr. Henry Baldwin, jr., for the complainant. BUTLER, J., MCKENNAN, C. J., concurring: The patent in suit is for an improvement in hernial trusses. The inventor's object was to devise and provide a more ready and perfect means for adjusting the pad to the rupture. Trusses capable of adjustment on either side of the person were in use before the date of the patent. The complainant sought simply to render this adjustment easier and more perfect. The patent contains a single claim, in the following language: In a heruial truss provided with a swinging joint, for connecting the hernial pad A to the body-band B, for the purpose of rendering the truss readily adjustable for either the right or the left side of the person, as desirable, the combination, with the pad A, of the rotary stem a', and its ratchet-toothed cylinder a'', and spring-lever 12, constructed and arranged substantially as set forth, for the purpose of enabling the wearer of the truss to readily adjust and secure the position of the pad A, so as to bear against either the right or left side of the rupture, or directly against the front of the same, as the wearer may desire, substantially as described. The language, in view of the prior state of the art, confines the patent to the "rotary stem a', and its ratchet-toothed cylinder a", and the spring-lever 12," in combination with the ordinary hernial pad, connected with the body-band by a swinging joint, as previously used. Whether it might have been made broader, in view of the invention described in the specifications and drawings, we need not consider. The language of the claim is plain. The court cannot enlarge it by construction. If it fails to cover all the patentee intended to secure, his remedy was through recourse to the statute providing for reissues. Does the respondent employ the combination described? While he uses the rotary stem, he does not use the ratchet-toothed cylinder nor the spring-lever, the object of which two last named elements is to secure the pad against backward motion on the stem, while it is left free to forward adjustment. The respondents' set-screw, which rigidly locks the rotary stem, does not operate in the same manner as the ratchettoothed cylinder and spring-lever, nor prcduce the same nor a similar result. In this respect the respondents' truss fails in what is claimed to be an important effect of the complainant's combination. The screw cannot, therefore, be regarded as an equivalent for the ratchet-toothed cylinder and spring-lever. The fact that in certain of the respondents' trusses the screw is used to force the projecting spike of a spring down into the rotary stem, or a cylinder upon it, instead of being screwed down directly into or upon the rotary stem or cylinder, as in others, to accomplish the locking process, is esteemed unimportant. The result in each case is the same, and the manner of accomplishing it is similar. It is unnecessary to pursue the subject further. The bill must be dismissed, with costs. [United States Circuit Court-Western District of Pennsylvania.] · HUSSEY MANUFACTURING COMPANY v. WILLIAM DEERING & Co. ET AL. Decided June 23, 1884. 1. Under the statute of Pennsylvania a foreign corporation which transacts business in that State through its authorized agents is amenable to suit there, and service of process upon its agents is good service upon it. 2. When an invention is both new and useful, the want of public acquiescence cannot avoid infringing parties. 3. Letters Patent Nos. 233,035 and 293,249, granted October 5, 1880, and May 6, 1884, to Ephraim Smith construed, sustained, and held to be infringed. MOTION for a preliminary injunction. Mr. George Harding and Mr. Francis T. Chambers for the complainant. Mr. L. L. Bond for the respondents. ACHESON, J.: Although the defendant William Deering & Co. is a corporation of the State of Illinois, it yet appears that it has established a business agency at Allegheny City, in the State of Pennsylvania, for the sale of its manufactures. The written contract between the corporation and White and Wallace, the resident defendants, expressly creates the latter the 66 agents" of the former. By the terms of their employment White and Wallace are not mere factors, but agents to represent and act for the corporation. It is quite plain that under the statutes of l'ennsylvania as authoritatively expounded the corporation transacts business within this State, and is amenable to suit here, and that service of process upon its said agents is a good service upon it. Act of April 8, 1851, sec. 6, pamph. L., 354; act of March 21, 1849, sec. 3, pamph. L., 216; Hagerman v. Empire State Co., 97 Pa. Stats., 534; Ex parte Schollenberger, 96 The bill charges the defendants with the infringement of two letters patent for improvements in mowing-machines issued to Ephraim Smith, respectively numbered 233,035 and 293,249, and dated October 5, 1880, and May 6, 1884, of which patents the plaintiffs are the assignees. The invention embraced in the second and third claims of the patent of 1880 consists of a lever mounted on the hinge-bar arranged in combination with the finger-bar, the lifting-chain having a yielding support, and mechanism for adjusting the chain and securing it in any desired position, whereby the weight of the finger-bar is partly sustained and its outer end counterbalanced when the machine is in operation, and the combination of the lifting-chain, a spring-sheave, lever, and finger bar operating together, whereby the action of the spring-sheave is constant upon the finger bar through the said lever. The invention covered by the Smith patent of 1884 (which is capable of conjoint use with the invention of 1880) is designed to promote the successful use of finger-bars and cutter-bars of extraordinary length by making the finger-bar with a slight downward curvature in the middle sufficient to make the fingerbar straight when it is sustained at its inner end ready for operation, thus obviating a difficulty which arose from the springing and curving upward of the finger-bar in the middle by its unsupported weight and that of the cutter-bar mounted thereon, so that the cutter-bar would bend downward at the outer end and not work freely on its guards or ways. Now it is certainly true, as appears from the numerous patents which the defendants produce, that many devices have been contrived to overcome the serious imperfection existing in mowing machines by reason of the cutter bar and attached mechanism resting on the ground at the one side of the machine, thus causing side draft and increasing the draft upon the team by the friction of the cutter-bar upon the ground. But the evidence adduced, a most important part of which is found in the defendants' own circular extolling the excellencies of "The Deering Giant Mower," the machine complained of as infringing, satisfies me that no practicable mechanism to overcome these evils (especially where the cutter bar proposed to be used is six or seven feet long) was devised until Smith's invention of 1880. A patient study of the prior patents has brought me to the conclusion that neither of his inventions was anticipated by any of them; and while he was by no means a pioneer in this field of invention, he is fairly entitled to claim the merit of successfully overcoming a long felt difficulty by operative devices securing the desired results. It only remains, then, to determine whether the defendants' machine embodies Smith's inventions. Undoubtedly some differences of mechanism between "The Deering Giant Mower" and the plaintiff's machine are observable. The giant mower does not have a spring-sheave, but, in lieu thereof and as a mechanical equivalent, it has a long straight spring secured to the frame of the machine Again, in the Smith machine, there is but a single chain, which is connected at one end to the lifting-lever, aud at the other to the lever mounted on the hinge-bar, whereas in the giant mower the defendants employ two independent chains. One of them is the lifting. chain, which is attached directly to the hinge-bar, and has no yield support nor mechanism for adjusting and securing it in any desired position. The other of these chains, however, is connected at one end with the lever mounted on the hinge-bar, and at the other end to the straight spring, and it possesses both a yielding support and provision for adjusting and securing it in the desired position. The differences in the devices above alluded to, in my judgment, are formal merely, and my conclusion is that substantially and for one practical purpose the giant mower embodies Smith's invention as shown and claimed in the second and third claims of his patent of 1880. That the finger bar in the defendant's machine has the downward middle curvature described in Smith's patent of 1884 and embraced in the first three claims thereof is not seriously controverted. As we have already seen, this invention is both new and useful. Therefore the want of public acquiescence cannot avoid infringing parties, and, indeed, in such a case as this, it is a matter of no moment whatever. A preliminary injunction as moved for must issue, and it is so ordered. A structure embracing all the elements of the patented invention, and also an additional feature not found in the latter, constitutes an infringement of the patent. Mr. A. v. Briesen for the orator. Mr. Frederic H. Betts for the defendants. WHEELER, J.: This suit is brought upon Letters Patent No. 195,233, dated September 18, 1877, and granted to the orator for an improvement in combined lock and handle for traveling-bags. The improvement consists in having the case for the lock long enough to fasten the handle to at each end by rings through the upright walls of the case. The handle is thus attached to the lock, and by that to the bag, and the extended perpendicular walls of the case stiffen and strengthen the whole. If the invention had been of an attachment of the lock directly to the handles only, or of the extension of the top plate of the lock-case along the frame to receive the handle-rings, it would have been anticipated; but the substance of it is understood to be the single attachment of the lock and handle to the frame, and taking advantage of the walls of the case to strengthen the frame at the handles. None of the devices relied upon by the defense meet these qualities. The patent therefore seems to be valid. The structure shown for an infringement appears to have all the elements of the patented invention, with the addition of a bottom plate to the lock extending beyond and fitting over the handlerings. This adds to, but does not take the place of, the orator's ar rangement. The attachment of the handles to the lock-case and the support of the whole by the walls of the case are retained. This taking of the invention for the purpose of adding to it is as much an infringement as if taken and used without the addition. The orator therefore seems to be entitled to a decree. Let a decree be entered for the orator for an injunction and an account, with costs. [United States Circuit Court-District of Massachusetts.] THE SHAW RELIEF VALVE COMPANY v. THE CITY OF NEW BEDFord. Decided March 12, 1884. 1. From a comparison of the section of the statutés relating to patents it is made clear that a patent-right, like any other personal property, is understood by Congress to vest in the executors and administrators of the patentee, if he has died without having assigned it. 2. "Legal representatives" in the patent act means executors or administrators. 3. A question of title raised by demurrer cannot be disposed of by amendment. LOWELL, J.: This bill is brought upon two patents, and the demurrer of the City of New Bedford raises several objections, all but one of which, it is agreed, can be, and may be, removed by amendment. A question which cannot be thus disposed of, and which has been argued with earnestness, and is pending in at least one other circuit, is whether the complainant's title to an undivided part of one of the patents is sufficient. It seems that this title comes through an administrator of the patentee; and the defendant contends that the grant of a patent, by Revised Statutes, section 4884, is to the patentee, "his heirs and assigns," and that by force of these words a patent descends directly to the heirs, without the intervention of the administrator. This is a new and somewhat surprising proposition. It has never been doubted before that a patent is personal property, which follows the ordinary course, and goes to the executor or administrator in trust for the next of kin. The cases take this for granted, and when any question has been mooted it has had reference to the due qualification of the executor or administrator, or something of that sort, as in Rubber Company v. Goodyear (9 Wall., 788). The text-writers treat of patent-rights as personal property which goes to the executor. (Norman on Patents, 145; Schouler, Executors, sec. 200.) The defendant argues that the statute of 1870 changed the 9373 PAT-19 |