having a screw-threaded winding part for engaging with said hub and a recessed part for engaging with the prismatic end of the center shaft.

It also consists in constructing the annular rack or internally-toothed wheel with an annular recess for receiving the pillar plate and thereby economizing space. It also consists in constructing the pillar-plate and pillars in one piece and attaching said pillars to the front plate by twisting them.

It also consists in substituting au automatic winding-dog operating like an escapement-verge for the click and spring ordinarily used.

It also consists in constructing the case with an opening at the bottom and adapting the key and the adjnsting-nut of the pendulum-ball to one another so that the adjustment of the said ball may be effected conveniently from outside of the case. It also consists in providing said ball with a spring which will force it down into place, and with a guide which will prevent it from turning.

The twelve claims of the original patent were confined to these details thus enumerated in the specification.

In March, 1880, the Parker & Whipple Company entered into a contract with the Yale Clock Company to manufacture the Hotchkiss Clock at a stipulated price per clock, the licensees furnishing the dies and tools for such manufacture. About fifty thousand clocks were made by the defendants and delivered to the licensees between June 17 and December 27, 1880. During this period the defendant, Frederick A. Lane, superintendent of the Yale Clock Company, made the infringing clock. It did not contain a single patented feature of the Hotchkiss clock, but in respect to every other leading feature the parts of the two clocks are interchangeable. The Laue clock was immediately patented, was put upon the market, and is being manufactured by the Yale Clock Company. An examination of the Hotchkiss patent showed that the vital parts of the invention were not alluded to in the specification or in the claims. Perhaps the fact that the clock had but three wheels their position might have been understood by an expert from drawing No. 6. That drawing was not made for the purpose of showing the wheels, and it is manifest from the specification that the patentee did not suppose they had anything to do with his invention, which he did suppose lay in entirely other parts of the clock. The model showed a completed clock, and contained whatever was and was not invented by Hotchkiss. In the specification of the second reissue the patentee omitted the entire description which has been quoted and inserted the following:

My invention relates to an improvement in clock-movements, the object being to make a clock-movement which shall be simple and durable in its construction, of small initial cost in manufacture, and the several parts of which shall be relatively arranged in such manner that the movement may be inclosed in a small and compact case. To this end the invention consists in dividing the train into two parts, in arranging the divisions of the train in a frame having three plates, in providing an additional wheel and piuion between the escape-wheel and center-wheel, in making the three wheels between the escape-wheel and center-wheel with the same number of teeth and of the same size, in arranging the pivots of the three arbors carrying the three like wheels and pinions between the escape-wheel and center-wheel in the circumference of circles which are concentric with the center-arbor, and in other minor improvements, as the invention is hereinafter more fully described and explained by reference to the drawings.

In accordance with the statement the plaintiffs' experts claimed upon the trial that the invention consisted generally in the division of the train into two parts by means of a frame having three plates, the point of division being between the center-wheel and the center-pinion, and, secondly, in the arrangement between the center-wheel and the escapewheel of three wheels which are driven by the center-wheel in the circumference of a circle which is concentric to the center arbor, the three wheels being arranged on a semicircle concentric to the center pinion. This general outline of the invention is stated with accuracy and completeness in eight claims of the reissue, four of which relate to the divis ion of the train into two parts in a frame having three plates, while the other four relate to the arrangement of the three wheels. The tenth and eleventh claims relate to details which were specified in the original patent, but which are not used by the defendant. The defendants infringe the first eight claims.

The position of the plaintiffs is that the invention of the reissue was the invention of Hotchkiss, and was shown in the model accompanying the original application for a patent, and that therefore the description in the reissue is not to be regarded as new matter, but as a correction of a misstatement in the description contained in the original specification.

The defendants, making no point in regard to laches in applying for a correction of the original patent, deny the plaintiffs' premise and conclusion. They deny the premise because they say that the original description limited the invention to that class of time-keepers in which a fixed annular rack or internally-toothed wheel is employed to aid a spring-barrel in rotating the train of wheels, and that this construction only was shown in the model, and that the importance of the Lane invention consisted in the abandonment of the "planet-wheel" and the substitution therefor of the ordinary mainspring. If the premise were true, they deny the conclusion, because it is a fact, the truth of which is apparent, that in the original specification and drawings the patentee gave no hint that he regarded the construction described in any one of the first eight claims as forming any material or immaterial part of his invention. Waiving the question whether the patentee, if he could reissue at all, was not confined to the peculiar class of clocks which he had described in his original specification, he having given no suggestion or indication that any other sub-combination than those which he had named would be of value or would perform an office of its own, and conceding that if the subject of the first eight claims could be introduced into a reissue they could also include a clock not having the drivinggear of the model, I proceed to consider the question whether the invention described in these claims, being an invention of which no trace is to be found in the original specification, and being manifestly other and different from that which was the subject of the original patent, is an invention which can be included in the reissue.

The plaintifik „lant thomco

which has been used both by the Supreme Court and by its individual members, that a reissue (if seasonably applied for) can include what was shown, substantially suggested, or indicated in the original specification, drawings, or model, and say that the real invention of Hotchkiss existed, and therefore was shown in the model, and therefore a reissue can take it in. I do not think that prior to the definition of new matter in Powder Co. v. Powder Works (98 U. S., 126) such a reissue as this is would have found favor in the eyes of a court, for the eight claims which are in controversy are a total abandonment of the principles which are stated in the original patent to be those of the invention, and are an introduction into the reissue of a subject-matter which has no relation to the original patent, except that each patent relates to clocks. But since the decision to which I have referred, taken in connection with other later decisions which throw light on the subject, the question is one which seems to me to be settled.

In Powder Co. v. Powder Works the Court says:

The legislature was willing to concede to the patentee the right to amend his specification so as fully to describe and claim the very invention attempted to be secured by his original patent, and which was not fully secured thereby in consequence of inadvertence, accident, or mistake, but was not willing to give him the right to patch up his patent by the addition of other inventions, which, though they might be his, had not beep applied for by him, or, if applied for, had been abandoned or waived.

In applying the Powder Works case to the facts detailed in Yale Lock Co. v. Scovill Manufacturing Co. (18 Blatchf. C. C. R., 248), this court used this language, which is cited by the plaintiffs, with commendation, as applicable to the present case:

If the patentee has made a palpable mistake, and has limited his real invention by a misstatement of its principles, so that he is about to lose the fruit of his labor, he should be permitted to restate, and if need be, enlarge his specification, so as to inelude the same invention which was plainly the subject of, but was not fully secured by, the original patent, although, literally, the enlarged invention is one which he did not apply for in his original specification, because that specification, by a misstatement of his actual invention, applied for a narrower patent than he was entitled to have.

The facts in the Yale Lock case were very different from those in this case. It might as well be said that the Copernican system was a mere restatement of the principles which had been misstated in the Ptolemaic system as that this reissue was a restatement and enlargement of the principles of the invention which was the subject of the original patent. I am not unmindful of the strong equities in favor of the plaintiff's growing out of the error of the inventor in regard to the nature of his invention, and of the fact that Mr. Lane availed himself of the error in a manner and by an expedition which indicated that he was more intent upon commercial success than upon nice observance of the Golden Rule; but I am clearly of opinion that the statute in regard to reissues forbids such a radical transformation of a patent as was attempted in this reissue.

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

PELHAM v. EDELMEYER.

Decided January 3, 1883.

25 O. G., 292.

DEATH OF PATENTEE-DEVISEE AND LEGATEE-ADMINISTRATRIX.

In a suit for the infringement of a patent the bill alleged and the proofs showed that the letters patent became the property of P. as administratrix of the patentee as part of his estate, and that complainant was the sole devisee and legatee under the will of P. Held, that no property in the patent passed to complainant, and the bill must be dismissed.

Messrs. Kitchen & Brown for the complainant.

Mr. J. P. Fitch for the defendant.

WALLACE, J., in delivering the opinion of the court, said:

So far as appears by the allegations in the bill and by the proofs, the title to the letters patent in suit is not vested in the complainant. Both upon the facts alleged in the bill and disclosed by the proofs, the letters patent became the property of Phebe Pelham as administratrix of the patentee as part of his estate. The complainant is the sole devisee and legatee under the will of Phebe Pelham, but the will does not purport to bequeath any property held by her in her representative capacity, and of course could not vest the title to such property in the legatee if it assumed to do so.

Manifestly, the objection taken for the first time at the hearing of the cause might have been taken by a demurrer to the bill. If it involved only a question of pleading, and the bill were not defective in a matter of substance, not having been taken by demurrer, the objection would not be available now. The objection is not that there is a defect of parties, but that the complainant has no interest in the subject of the controversy. As to all merely formal defects in the bill, the objection must be taken by demurrer. So also where there is a defect of parties appearing upon the face of the bill, the defendant must resort to a demurrer, or the court is at liberty to make a decree saving the rights of the absent parties. If the proofs disclosed title in the complainant, it would be open to consideration whether the general allegation in the bill that the complainant is the owner of the patent would not be held sufficient to authorize a decree, notwithstanding that allegation is a conclusion of law based upon qualifying facts that negative it. The rule is familiar that the court will refuse to decree unless the substantial groundwork of the case in which relief is sought is distinctly alleged in the bill; but after proofs have been taken, the bill will not be studied critically to find defects, and the most liberal construction will be placed upou the allegations consistent with established rules of pleading. The question here, however, is one of evidence rather than one of pleading. The complainant has failed to show himself possessed of any legal or

equitable interest in the letters patent on which the suit is founded. If the bill were perfect, the court could not decree for complainant upon the proofs. If the complainant was suing upon the agreement for a license, the defendant might not be permitted to deny complainant's title to the patent. But the bill assumes to treat defendants as ordinary infringers. They are, therefore, at liberty to avail themselves of any defense open to defendants, who are charged with infringement. The bill must therefore be dismissed. As this result may be attributable to a slip in practice, the dismissal will be without prejudice to complainant's right to file another bill.

Bill dismissed.

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

SMITH v. STANDARD LAUNDRY MACHINERY COMPANY.

Decided January 1, 1883.

25 O. G., 393.

INFRINGEMENT-PERSONAL LIABILITY FIXED BY ANSWER- DEFENDANT OWNER OF ALL THE STOCK OF CORPORATION SERVED.

In a suit for the infringement of a patent against a corporation, L., president, was named as a defendant, but was not served. An appearance was entered for the defendants without naming them. L. sigued and swore to the answer as one of the defendauts. L. owned all the stock of the corporation. Held, that L. was liable personally for the infringement of the patent.

On exceptions to the master's report.

Mr. H. G. Atwater for the complainant.

Mr. Justus Palmer for the defendant.

WHEELER, J., in delivering the opinion of the court, said:

This cause has now been heard upon the exceptions to the master's report. These exceptions relate principally to the liability of the defendant Lewis at all personally. The grounds of the exception to his liability at all are that he was not so made a party individually; that any decree for relief could be made against him, and that the allegations of the bill were not sufficient to be the foundation for charging him personally. The bill was brought upon several patents. In the statements of parties the defendants are described as the "Standard Laun. dry Machinery Company," a corporation, William G. Lewis, president of said company, and Channing W. Littlefield, secretary of said company. A subpœna was prayed directly to the Standard Laundry Machinery Company, William G. Lewis and Chauning W. Littlefield, defendants. A subpreua was so issued, but was not served upon Lewis. A solicitor of the court appeared for the defendants without naming them. An answer was filed stated to be the answer of the defendants, without naming them,