the evidence, which is very voluminous, and is discussed with great care and elaboration upon the briefs presented. It is enough to say that no one of the principal circumstances relied on by the complainant is free from perplexity; either its own date is uncertain or there is difficulty in connecting it with the invention. It would be idle to assert that all this does not create the doubt which the authorities hold must be absent from the mind of the court.

This result has been reached without reference to the declarations or admissions of the joint inventor Albert M. Smith either in writing or otherwise.

It follows that the bill must be dismissed, with costs.

[United States Circuit Court-Southern District of New York ]

HART, JR., ET AL. v. THAYER.

Decided June 28, 1884.

28 O. G., 544.

Mr. Frederic H. Betts and Mr. C. Wyllys Betts for the complainants. Mr. Josiah P. Fitch for the defendant.

COXE, J. :

This action involves the same patents examined in Thayer v. Hart. Infringement is admitted, and the question of prior invention alone is involved. The result reached in that action disposes of this also.

There should be a decree for an injunction and an account, with costs.

[United States Circuit Court-Southern District of New York.]

CONSOLIDATED ELECTRIC LIGHT COMPANY v. BRUSH SWAN ELEO. TRIC LIGHT COMPANY.

Decided June 10, 1884.

28 O. G., 544.

Even though several patents cover inventions which are capable of being used conjointly, and which are made and sold as parts of the same electric-lighting system, yet if the inventions may be used separately and operate independently with respect to each other, and any of them may be infringed without infringing the others, the bill must be adjudged to be open to the objection of multifariousness.

Mr. Amos Broadnax for the orator.

Mr. Eugene Lewis and Mr. Samuel A. Duncan for the defendant. WHEELER, J.:

This is an amended bill brought upon five different patents-one for an electric-lighting system, one for an improved regulator for electrio

lights, one for an improvement in electric lamps, one for an improvement in carbons for electric lights, and one for an improvement in the treatment of carbons for electric lights-and is demurred to for multifariousness. The bill alleges that the patented inventions are capable of being used conjointly; that the orator makes, uses, and sells conjointly as parts of the same electric-lighting system each and all of said inventions in some essential and material parts thereof; that the defendant is infringing each and all of these patents by making, selling, and using each and all of said inventions conjointly in a system of electric lighting, the same substantially as that of the orator. The titles of the patents, as well as the patents themselves, of which profert is made, show that these inventions may be used separately and operate in. dependently with respect to each other. Any of them might be infringed without infringing any of the others. The trial of the validity of each and of the infringement of each must be separate from that of the others upon distinct issues as to each. The facts may be proved by the same witnesses; but if so it will be on account of identity of persons in connection with the subject, rather than because of the sameness of the issues involved in the subject. That they are used in the same system does not change the nature of the issues to be tried. They are distinct parts of the system. Each patent is for a distinct machine, or process, .or manufacture, and must stand or fall as such; and the infringement of each must or may be a separate trespass. The bill apparently covers as many causes as there are patents, when it should cover but one. Hayes v. Dayton, 18 Blatchf., 420; 8 Fed. Rep., 702.

The demurrer is sustained, and the bill adjudged insufficient.

[United States Circuit Court-Southern District of New York.]

WOOSTER v. HANDY.

Decided July 22, 1884.

28 O. G., 629.

1. Rule 38 of the equity rules prescribed by the Supreme Court relates to rehearings after a final decree.

2. Interlocutory decrees remain under the control of the court and subject to its revision until the master's report comes in and is finally acted upon by the court; and therefore, upon final hearing, the court is at liberty to interpret the law in the light of decisions announced since the rendition of the interlocutory decree. 3. The rule laid down by the Supreme Court is that where it is sought merely to enlarge a claim there must be clear mistake and inadvertence and a speedy application for its correction, with no unreasonable delay; that in such a case a patentee cannot wait until other inventors have produced new forms of improvement and then apply for such an enlargement of his claim as to uake it embrace those new forms, and that when it is apparent from a comparison of the two patents that the reissue is made to enlarge the scope of the patent the court may decide whether the delay was unreasonable and the reissue therefore void.

4. Where an invention covered by the claim of the original patent was clearly and accurately described in the specification of that patent, and there was no defect or insufficiency so far as the description was concerned, and the patent was not invalid or inoperative to cover anything arising out of such description which was set forth as an invention: Held, there is no evidence that there was in fact any inadvertence, accident, or mistake, and hence a reissue with enlarged claims was not authorized.

Mr. Frederick H. Betts for the plaintiff.

Mr. Benjamin F. Lee and Mr. William H. L. Lee for the defendant.

BLATCHFORD, J.:

This suit is brought on two reissued patents. One is Reissue No. 6,565, granted to George H. Wooster, July 27, 1875 (on an application for a reissue filed June 22, 1875), for an improvement in machines for making ruffles, the original patent (No. 37,550) having been granted to Pipo and Sherwood, January 27, 1863, on the invention of John A. Pipo. The other is Reissue No. 6,566, granted to George H. Wooster, July 27, 1875 (on au application for a reissue filed July 19, 1875), for an improvement in sewing-machines for making band-ruffling, the original patent (No. 46,424) having been granted to E. C. Wooster, February 14, 1865, on the invention of Thomas Robjohn.

The case was brought to a hearing on pleadings and proofs, and a decision was rendered in April, 1881 (Wooster v. Blake, 8 Fed. Rep., 149), in favor of the plaintiffs, on both patents, on which an interlocutory decree was entered April 30, 1881. The decree adjudged that No. 6,565 was valid so far as claims 1, 7, 8, and 10 were concerned; that those claims had been infringed; and that an account of profits and damages should be taken as to such infringement. It stated that as No. 6,565 had expired by its own limitation, no injunction was granted in reference to it. The decree also adjudged that No. 6,566 was valid so far as claims 8 and 9 were concerned; that those claims had been infringed; that an account of profits and damages should be taken as to such infringement; and that a perpetual injunction should issue as to said claims. The decree further said: "No adjudication is herein made as to any other claims than those above mentioned of either of said letters patent in any respect," and it reserved the question of costs and of increase of damages and all further questions until the master's report should come in.

The defendant's rufflers involved and held by the decision to infringe both patents were known as the "Johnston ruffler" and the "Toof ruffler," and were sold to be attached to sewing-machines for ruffling purposes.

In regard to the Pipo patent, No. 6,565, the decision considered several patents and inventions set up on the question of novelty, and

held that they could not avail. On the defense of the invalidity of the reissue, as not for the same invention as the original, the decision said:

There is no evidence that anything is found in the Reissue No. 6,565 which is not to be found in the description or drawing of the original patent or in the model accompanying the application for that patent.

As to the Robjohn patent, No. 6,566, the decision considered the question of novelty, and sustained the patent. Although the defense that the reissue was not for the same invention as the original was set up and urged, and it was considered and overruled, no special observations were made in the decision in regard to it. The remarks in regard to the Pipo reissue were considered as applying to it.

Some progress was made in taking testimony on the accounting before the master, when, on the 9th of January, 1882, the cases of Miller v. Brass Company (104 U. S., 350) and James v. Campbell (Id., 356) were decided by the Supreme Court. The defendant thereupon presented to this court, on March 22, 1882, a petition, with notice of an application to be made March 31, 1882, that the prayer of the petition be granted. The application was adjourned and not heard till June, 1884. The petition states that the said decisions in 104 U. S.—

Fix and establish rules of law in respect to reissues different from those stated in numerous decisions of the circuit court of the United States for the second circuit in numerous earlier cases; that said decisions of the Supreme Court are directly in point as affecting the validity of the said Pipo and Robjohn reissues, and that the said Pipo reissue and the said Robjohn reissue must be declared void in accordance with the doctrines laid down in said cases.

One of the prayers of the petition is for a rehearing of the cause ou the questions of law involved, in view of the said decisions of the Supreme Court, and that the interlocutory decree be opened. The rehearing asked for is not such a rehearing as is the subject of Rule 38 of the equity rules prescribed by the Supreme Court. That rehearing is one after a final decree-after a decree which is of an appealable character. The present decree is not an appealable decree. The rehearing asked for is a reconsideration of the law of the case on the question of the validity of the reissues in view of the decisions by the Supreme Court referred to. The test applied by this Court, as announced by it in deciding the case, was that the reissues were to be sustained as to their claims, inasmuch as there was nothing found in them which was not found in the descriptions or drawings of the original patents or in the models accompanying the applications for those patents.

The principle the application of which is invoked by the defendant is well settled. In Perkins v. Farrinquet (6 How., 206, 209) it is said that interlocutory decrees remain under the control of the court and subject to its revision until the master's report comes in and is finally acted upon by the court and the whole of the matters in controversy are disposed of by a final decree.

In Farrinquet v. Perkins (16 How., 82) there were an interlocutory decree, an accounting under it, a report of a master, exceptions to the report, and an argument thereon. On the argument the circuit court reconsidered the opinion it had expressed on the merits in the interlocutory decree, and believing that opinion to be incorrect, dismissed the bill. The plaintiff appealed to the Supreme Court, and that court held the decree of dimissal to be right. It added

The counsel for the appellants, however, objects to the decree of dismissal because it was made at the argument upon the exceptions to the master's report, and is contrary to the opinion on the merits expressed by the court in its interlocutory decree. But this objection cannot be maintained. The case was at final hearing at the argument upon the exceptions, and all of the previous interlocutory orders in relation to the merits were open for revision and under the control of the court.

This court, then, is to interpret the law of reissues as it would have done if the cases referred to had been decided by the Supreme Court before this court made its decision in this case. The rule laid down by the Supreme Court is that where it is sought merely to enlarge a claim there must be a clear mistake and inadvertence and a speedy applica tion for its correction, with no unreasonable delay; that in such a case a patentee cannot wait until other inventors have produced new forms of improvement and then apply for such an enlargement of his claim as to make it embrace those new forms; and that when it is apparent from a comparison of the two patents that the reissue is made to enlarge the scope of the patent, the court may decide whether the delay was unreasonable and the reissue therefore void. This view has been repeatedly asserted and applied by the Supreme Court in numerous cases decided since those in 104 U. S.

As to the Pipo reissue, No. 6,565, it is plain that the right to reissue was lost by the delay of more than twelve years, because the case is one of a mere expansion of the claims beyond anything stated in the original patent as the invention, and with no proof of mistake or inadvertence, and it is sought to make the new claims embrace in this case structures brought into use between the time of the issue of the original patent and the time of the application for the reissue, and which were not infringements of the claim of the original patent. There was but one claim in the original. There are thirteen in the reissue. It would serve no useful purpose to enlarge on this subject as to No. 6,565, for the counsel for the plaintiff concedes that under the reiterated decisions of the Supreme Court this court must dismiss the bill as to that reissue. But in regard to the Robjohn reissue, No. 6,566, the plaintiff contends that the case is different; that claim 2 of the original patent covered the defendant's structures; that claims 8 and 9 of the reissue are substantially only repetitions of claim 2 of the original, or that at least claim 2 of the original was so worded as to be ambiguous and so inoperative, and claims 8 and 9 of the reissue are valid as removing the ambiguity.