Other witnesses examined by the complainant testify to having seen made or used cans with covers concave on the top, and with opening in the center closely fitted to the walls of the can. These covers could be moved up and down in the can, and would stay where they were placed.

Now, this evidence, taken all together and fairly considered, clearly proves that cans with contrivances of both kinds were used in New York-some with concave floats resting on the surface of the fluid, others with what counsel call "piston-covers," concave at the top and closely fitted to the can. The latter might be moved up and down with the haud. When the liquid was poured into the can, the cover could be elevated without being removed from the can. When this was accomplished, the cover could be pushed down to the surface of the fluid, thus preventing the churning of the milk or cream. Some purchasers might prefer one contrivance and some the other, and so both would get into use, as they did according to the testimony of some of the witnesses. This view sufficiently answers the argument of counsel that

Some of the witnesses state they had difficulty in getting the covers in and out, they fit so tight, and that the handles would frequently pull off.

Counsel would infer from this fact that there were in fact no floats, in a proper sense of that word, but only "tight-fitting piston-covers.' This argument is untenable for several reasons: First, because the difficulty experienced by these witnesses was probably with the tightfitting covers, which, as we have seen, were in use as well as the floating covers; second, because nothing is more probable than that the cans frequently, in handling, became bruised or battered, so that it would be difficult to remove the float, which would be made to fit the can as closely as possible consistent with its office of moving in the can on the surface of the fluid; third, because if the can and the float did not exactly correspond in form, one being, perhaps, perfectly circular and the other not-which might often happen from imperfect workmanship-there would be difficulty in getting the float or cover in and out of the car. Counsel in this argument particularly advert, as quite conclusive, to the testimony of a witness for defendants, who, as quoted by the counsel, says "he remembers what a time he used to have in getting the covers out." This is in the testimony of Tallman. What he does say is as follows:

It was a part of my work, when I was a boy, to wash these floats. I remember what a time I would have getting the floats out of the can and getting them in again, as they would sometimes get burst out of shape.

The omitted words—“they would sometimes get burst out of shape”— change the entire effect of the witness's testimony.

The complainant's invention having been anticipated, his patent connot be sustained, and his bill must be dismissed, with costs.

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

NEWBURY ET AL. v. MOSSMANN.

Decided September 25, 1884.

29 O. G., 277.

Where the patent covered a time-lock in which some part of the mechanism between the power and the bolt is made yielding by means of a spring, so as to leave the bolt fast in case of a shock to the lock from the outside, a preliminary injunction refused where the yielding portion of the alleged infringing device consisted of a screw, which is to be stripped of its threads by the shock, and there was no proof that the shock would so operate.

Mr. Samuel A. Duncan for the orators.
Edward Wetmore for the defendant.

WHEELER, J. :

The clock-work of time-locks regulates the movements of machinery to make way for the lock-bolt in unlocking, so that way will be made at the proper time and not sooner. If the delicate or other parts of the time-movements are broken or displaced, so as not to hold the machinery, it will run down at once and free the bolt. The orator's patent, No. 262,094, dated August 1, 1882, and granted to Newbury, is for an improvement in such locks by which some part of the mechanism between the power and the bolt shall be made yielding by a spring, so as to disconnect there more readily than the time-movement will and leave the bolt fast in case of a shock to the lock from the outside. There are two claims, one of which is for the combination of the connecting mechanism, "some part of which is made yielding for the purpose of interrupting the operative continuity of the mechanism under the force of a shock," with other parts of the lock. The other is for the same combination, with the addition to the parts of a device for holding the parts out of engagement when disconnected.

The alleged infringement consists in making the connection between the plates of the clock-work more firm, moving the yoke-lever by which pins on the dials make way for the lock-bolt away from the front of the dials to make room for throwing them forward out of place and disconnecting them, and weakening the screws by which they are attached to their arbors to make them more easy to be removed from their places by a shock from without. Strengthening the parts aout the clock-work might make the other line of mechanism comparatively more likely to yield to a shock by making this line less so, but that would not of itself seem to be an infringement of the patent, which is for making one, of a set of parts yielding, and not for making another of another set unyielding. Removing the yoke-lever out of the way of a forward movement of the dials does not appear to be new with the defendant's locks made since this patent. Locks were made with the yoke-lever back of the dials long before the patent and before the invention.

9373 PAT-26

The most important question is whether the dials are a part of the mechanism made yielding for the purpose of disconnecting under the force of a shock within the meaning of the patent. They are in their former places fastened by the same form of fastening, but made weaker and perlaps made so for the purpose of being made to appear liable to disconnect in case of a shock. But there is no evidence that they will so yield. They are fastened by a screw apparently made to hold and which cannot yield to the force of a shock without being stripped of its threads. The threads are small, but tae dials are light, and it does not seem as if any shock that would not shatter the whole structure of the lock would give the dials momentum enough to strip the screws out of their threads. Without proof that a shock would so operate there is not sufficient proof to warrant granting a preliminary injunction. The motion is therefore denied.

[United States Circuit Court-Eastern District of Missouri.¦

MCLAUGHLIN . PEOPLE'S RAILWAY COMPANY.

Decided September 18, 1884.

29 0. G., 277.

1. Where a patentee has for thirteen years acquiesced in infringement of his patent, and in his bill shows no excuse for his delay, nor ignorance of the conduct of the defendant nor inability on the complainant's part to assert his rights, held that whatever action at law he may have for damages his own laches prevent a court of equity from interfering by injunction.

2. The general principles of equity jurisprudence control in patent cases (Rev. Stat.. secs. 629 and 4921), and the question of laches can be raised by demurrer, and is a good defense to a bill in equity. (Walker on Patents, see, 597.)

BREWER, J.:

The bill charges that letters patent for a street-car gate were issued to the complainant and one J. F. Madison on August 3, 1869; that neither of said patentees ever licensed or granted to the defendant, the the People's Railway Company, or any one else the right or privilege to make or use said grate, and that said defendant railway company is now, and has been for thirteen years last past, using and constructing such patented street-car gates upon its street-cars. The prayer is for injunction and accounting.

The single question which I deem necessary to consider is whether there has been such laches on the part of complainant as will prevent a court of equity from taking cognizance of this suit. The bill shows no excuse for his delay, neither ignorance of the conduct of the defendant, nor inability on the complainant's part to assert his rights. It is left upon the naked assertion that the patent existing for now over fifteen

years the defendant has for thirteen years been infringing thereon. Under these circumstances, whatever action at law he may have for damages, I think his own laches such as prevents a court of equity from interfering by injunction. That the general principles of equity jurisprudence control in patent cases caunot be doubted. Revised Statutes, section 629, paragraph 9, also section 4921, which last section contains these words:

The several courts vested with jurisdiction of cases arising under the patent laws shall have power to grant injunctions according to the course and principles of courts of equity, to prevent the violation of any right secured by a patent, upon such terms as the court may deem reasonable.

Now, generally speaking, the laches of complainant is sufficient ground for non-interference on the part of equity. Nearly all the lifetime of this patent the complainant has remained silent, by his silence consenting, or at least acquiescing, in the acts of the defendant. To interfere now by injunction would seem manifestly inequitable.

That this question of laches cau be raised by demurrer, and that it is a good defense to a bill in equity, is abuudantly sustained by the authorities.

In Walker on Patents, section 597, it is said:

The defense of laches cau be made in a demurrer, or in an answer, or in an argument on the hearing without any pleading to support it. But a plea is not appropriate in such a defense, because if the bill shows delay and is silent about excuses therefor the method of a plea would be to state that there is no such excuse, and because by taking issue on such a plea and framing an excuse the complainant could cut off all other excuses and win the case. To guard against a demurrer based on laches in a case where long delay intervened between the infringement and filing of the bill, the bill ought to state the existing excuses for that delay, and to guard against such defense being started on the hearing the evidence ought to show whatever excuse the complainant can interpose.

See also the following authorities: Maxwell v. Kennedy (8 Howard, 222); Lewis v. Chapman (3 Beavan, 133); Saunders v. Smith (3 Myline & Craig, 711); Collard v. Allison (4 Id., 487); Wyeth v. Stone (1 Story, 273); Root v. Railway Company (105 U. S., 215); Curtis's Law of Patents, section 440, in which the author says:

Where a patentee seeks an injunction against an alleged infringer, and the evidence shows that this infringer or others have been in the habit of disregarding the exclusive right conferred upon the patentee, and this with knowledge either actual or implied on the part of the patentee, the court will dismiss the bill on the ground that the complainant has been guilty of laches, or that there is a want of that exclusive possession which lies at the foundation of every claim for an injunction.

These authorities, enforcing the general rule of equity jurisprudence, compel the sustaining of the demurrer. The order, therefore, will be that the demurrer be sustained and the bill dismissed.

[United States Circuit Court-Eastern District of Pennsylvania.
BOSTOCK V. GOODRICH.

Decided June 2, 1884.

29 O. G., 278.

1. IMPROVEMENT UPON FORMER INVENTION-INFRINGEMENTS.

Letters Patent for an improvement made to a patented invention by additional features having no material effect upon the character, operation, or result produced do not confer upon the subsequent patentee a right to use the original device.

2. SPLITTING UP AND MULTIPLYING CLAIMS.

The practice of unnecessarily splitting up and multiplying claims disapproved. 3. EVIDENCE-INCONSISTENT CONDUCT OF Respondent.

That the respondent offered a large sum of money for a patent, and subsequently took out patents for similar devices, are facts to be considered as being inconsistent with his subsequent contention of want of novelty in the patent.

4. BOSTOCK-Sewing-MACHINE TUCK-CREASERS-LETTERS PATENT Nos. 64,404, 80,269, 81,160, 117,501.

Letters Patent No. 64,404, issued May 7, 1867, and No. 80,269, issued July 28, 1868, to Edward Bostock, for improvements in sewing-machine tuck-creaser, are not shown to want patentable novelty, and are infringed by the devices constructed under Letters Patent No. 81,160, issued August 18, 1868, and No. 117,501, issued May 16, 1876, to Henry C. Goodrich.

HEARING on bill, answer, and proofs.

[Bill to restrain an alleged infringement of claims Nos. 2, 3, 5, and 6 of Patent No. 64.404, issued May 7, 1867, to Edward Bostock, and claim No. 1 of Patent No. 80,269, issued July 28, 1868, to said Bostock, for improvements in sewing-machine tuck-creasers, assigned, by mesne assignments, to Sarah L. Bostock. Respondeut contended that there was no patentable novelty over twenty-one prior patents, and alleged that the devices made and sold by the respondent under Letters Patent No. 81,160, issued August 18, 1868, to Henry C. Goodrich, and No. 117,501, issued May 16, 1876, to said Goodrich, for improvements in tuck-creasers for sewing-machines, were distinguishable from the Bostock invention in the construction and mode of operation.]

Mr. H. T. Fenton and Mr. W. W. Ledyard for the complainant.
Messrs. West & Bond, of Chicago, for the respondent.
BUTLER, J.:

The patent, No. 80,270, of July 28, 1868, having been withdrawn from the case, we have for consideration only those of No. 64,404, of May 7, 1867, and No. 80,269, of July 28, 1868. Of No. 64,404 the defendant is charged with infringing claims 2, 3, 5, and 6, and of No. 80,269, claim 1. The defense set up is want of novelty and noninfringement. The patentee has pursued the usual and reprehensible practice of unnecessarily, if not improperly, splitting up and multiplying claims. Its effect here (which may be unimportant) we are not called upon to consider. The Patent No. 64,404 covers a right-angled base plate, a right