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The particular feature of the invention on which the patent of 1888 rests consists in a short rib inserted in a loop of the fabric which incloses the upper side rails or ribs of the boat. This short rib laps at either end the upper longitudinal side rails which are cut off short at each end of the section. The purpose of the short rib is to hold the side rails in the same relative longitudinal position, and prevent the boat from collapsing at the joints. The short rib was provided with a handle standing at a right angle to it. Fig. 2, here shown, is an enlargement of this part of the boat and clearly exhibits this feature.
Fig.a 1 is a perpendicular slot in the loop of the canvas. The rib has been slipped into it, but the handle is shown at c. The patentee says:
"When the handle of the rib, c, is turned down as in said figure, the rib can be readily withdrawn; but when the rib, c, is pushed farther in and the handle is turned upward its contact with the fabric retains it in place. This position is not here shown.”
How the handle is held in place when turned up is not apparent. Probably by some peculiarity in the form of the rib, whereby some stress is put upon the canvas in turning up the handle. The first claim, which is the one involved, is as follows:
"(1) The combination of the canvas or flexible boat body, a series of longitudinal ribs in sections, a section being in each end of the body and a section at each side within the body and between the end sections, and the ribs having the angled end, one of said ribs being inserted in the fold at the upper edge of the body above the central sections of ribs, substantially as set forth.”
It will be noticed that he makes the short rib with an angled end an element in his combination. The defendant uses a short rib or splice inserted in the canvas and passing the joint. But it has no angled end, but a circular end, used for the purpose of thrusting in and pulling out the rib, and is not turned in use. We cannot think there would be anything patentable in simply splicing the ends of the ribs of the sections so as to hold the parts in proper relation, and invention, if there be any, must be found in the peculiar formation of the rib having an angled end. At all events the patentee has made a rib of that construction a material element in his claim and it is represented as the novelty of the invention. As the defendants do not use such a rib, there is no infringement.
The patent of 1893 was for improvements in the construction of portable boats. The particular improvement was in the means for fastening the sections of the boat together. The two improvements which enter into the second claim were, first, in providing a tube in which the ends of the longitudinal ribs of the sections were inserted, whereby the ribs became in effect continuous from section to section
along the side of the boat. This tubular connection is shown by Fig. V of the drawings.
Fig:T, 19 is the tube, and 18 one of the ribs. As is seen, the ends of the ribs meet near the middle of the tubular connection. No doubt this was a very material improvement upon the method employed and described in his patent of 1888. Whether it was a patentable novelty to use this old device in the construction of these boats we need not decide. The other of the improvements mentioned was the securing the ribs in permanent position on the canvas by stitching the sections of the ribs within tucks or folds of the canvas or other fabric which constitutes the inner lining of the boat. The second claim is as follows:
“(2) In a boat as described, the inner flexible lining and the longitudinal ribs arranged in sections and united at their ends by removable tubular connections and attached by stitching to the said lining, all substantially as described.”
This combination includes the tubular connection of the ribs and the stitching of the ribs to the canvas. The method of connecting the ribs by the defendant has already been described, and consists of splicing the ends of the ribs of the sections by using a short rib to lap for a space upon the end of the ribs to be connected, and all the parts which are employed in making the connection are inclosed in the loop of the fabric. There is still less similarity in this feature of the defendant's means for effecting the connection and that of the patent of 1893 than there is between the former and those of the patent of 1888. If the patent of 1893 is materially distinguishable from former constructions of the parts concerned, it is so mainly in the improvement made by slipping the ends of the ribs in one section into one end of a tube and the ends of the ribs in the next section into the other end of the tube. At all events the patentee makes that peculiarity an element in his claim, and the combination is not that used by the defendant. Walker on Patents (4th Ed.) § 349, and cases there cited. The complainant encounters the same difficulty in supporting his claim of infringement of the two patents, namely, that in each he has in his combination made an element material which is not found in the supposed infringement.
We come to the same conclusion as that reached by the judge who heard the case in the court below, and must therefore affirm the decree, with costs.
UNITED STATES FASTENER CO. V. DUTCHER.
(Circuit Court, N. D. New York. July 9, 1906.) PATENTS-ANTICIPATION-SEPARABLE BUTTONS.
The Pringle patent, No. 573,532, for a separable button, claims 3 and 4, which cover a button-head having a stud-catch therein, are void for anticipation by prior patents for glove fasteners. Suit in equity to restrain alleged infringement of claims 3 and 4 of United States letters patent No. 573,532, dated December 22, 1896, and issued to Eugene Pringle for separable button, and also for an accounting
Horton D. Wright (Donald Campbell, of counsel), for complainant.
Richardson, Herrick & Neave (A. D. Salinger, of counsel), for defendant.
RAY, District Judge. The claims in suit, permitting the complainant now to rely upon both, read as follows:
“(3) A button-head comprising a cap or shell containing a stud-catch having the catch-lips thereof turned down within itself, and said parts secured to the material, substantially as described.
“(4) A button-head comprising a cap or shell containing a stud-catch having the catch-lips thereof turned downward within its body and its lower end clenched to hold the parts to the material, substantially as described.”
Claim 3 has as elements: (1) a cap or shell; (2) a stud-catch having the catch-lips thereof turned down within itself; and (3) means for attaching to the fabric or garment, as described. There is no claim of any peculiarity or novelty in either the button-head, cap, or shell, or the means of attachment. The novelty and utility, if any, is asserted to reside in the “stud-catch having the catch-lips thereof turned down within itself.”
Claim 4 differs from claim 3 in that the catch-lips of the stud-catch are “turned downward within its body," instead of “turned down within itself”; a difference in words merely, unless there is some subtle and hidden meaning which this court is not astute enought to discover, and in that the lower end of the stud-catch is clenched to hold, or aid in holding, the parts to the material. This clenching may be regarded as allowable, under claim 3, broadly construed.
The defendant denies the validity of claims 3 and 4 of the complainant's patent because anticipated. He says in view of the prior art no patentable invention is disclosed. The defendant cites, has put in evidence, and relies, among others, upon the Richardson patent, No. 300,508, dated June 17, 1884, for improvements in fastenings for gloves and other articles, and also upon the Daniel A. Carpenter patent, No. 383,702, dated May 29, 1888, for glove fastener. After a careful reading of all these patents with their specifications with the evidence in the case, especially in view of figure 11 of the said Richardson patent, and that part of the specification describing it, I cannot escape the conclusion that, in view of the prior art, claims 3 and 4 of the patent in suit (those in issue) fail to disclose patentable invention, and are therefore void. In the Richardson patent, after describing the eyelet
constituting the stud-catch and two forms thereof, both operative, the patentee says:
“In Fig. 11 the yielding sides are turned into the eyelet or tube space, and form a socket for the reception of the other member of the fastening within the tube or eyelet and below their under surface. The principle of the construction is, however, the same; the only difference being that the socket is made lower by bending the sides inwardly and downwardly, as shown.”
This is nothing more or less than a stud-catch having the catch-lips thereof turned down within itself. It is substantially the same thing shown in the patent in suit as the stud-catch, and presents the same exact idea of means and general form of construction. True, the Richardson patent does not have this in combination with or placed within a button-head, but to do that would add nothing to the invention. Taking claims 3 and 4 of the patent in suit, we have a combination of three old elements to produce an old result in the same way, viz., a cap or shell in which is placed the catch, which cap or shell is old, a stud-catch having the catch-lips thereof turned down within itself, and this is old in the Richardson patent, and means to attach same to the fabric or garment, also old. In the Carpenter patent we have precisely the same idea as to form and construction and utility of a stud-catch. With these patents and drawings before him any mechanic skilled in the art would readily produce the complainant's device in question.
The question of infringement will not, therefore, be considered. Neither will I remark upon other phases of the controversy, which in my judgment make the claim of complainant doubtful.
There will be a decree dismissing the bill of complaint, with costs.
FRANK et al. v. BERNARD.
(Circuit Court, S. D. New York. June 2, 1907.)
PATENTS-VIOLATION OF INJUNCTION AGAINST INFRINGEMENT.
A fine imposed for contempt of court in violating an injunction against infringement of a patent. On Motion to Punish for Contempt. See 131 Fed. 269. Andrew Fowlds, Jr., for the motion. Henry D. Williams, opposed.
LACOMBE, Circuit Judge. It makes no difference that defendant's manufacturers have made match stands having the leather ring, inserted in the base, held between perpendicular walls. It is not disputed that defendant sold the article Ex. No. 2 since the service of the injunction. Mere inspection of the article will show that the top of the inner wall is inclined sufficiently towards the opposite wall to pinch the leather ring. It may be that this is a sporadic case, where some accident of manufacture has produced a result sought to be avoided. Therefore the penalty for disobedience of the injunction will be made
slight ($10); but should the discovery of other articles of like construction sold subsequent to injunction indicate persistent infringement a heavier penalty will be exacted.
The exhibit has been marked on the base "E H L.”
In re KOLSTER.
(District Court, D. Nevada. June 18, 1906.)
1. BANKRUPTCY_GROUNDS FOR REFUSING DISCHARGE-CONCEALMENT OF ASSETS.
Where a bankrupt had voluntarily surrendered a lease giving him an option to purchase the leased property more than four months prior to the bankruptcy proceedings, he is not chargeable with concealing property from his trustee because of his failure to schedule such property, in the
absence of proof that the surrender was not in good faith. 2. SAME-OBJECTIONS TO DISCHARGE-SUFFICIENCY OF PROOF.
The burden of proof rests upon a creditor objecting to the discharge of a bankrupt, and, while the acts charged may be established by inference from the facts proved, it is not sufficient that such facts justify a suspicion of fraud, but they must be inconsistent with honesty and good faith.
In Bankruptcy. On application for discharge and objections thereto.
HAWLEY, District Judge (orally). The objections filed by the creditors of the applicant are based upon the ground that he had knowingly and fraudulently concealed while a bankrupt from his trustee property of the value of at least $5,000, which property, it is alleged, consists of an equity of redemption to certain real estate in Reno, Washoe county, Nev. On October 14, 1899, one Westlake and his wife conveyed to Jacob Gooding the property in question for the sum of $2,500. This purchase was made at the request of Kolster, and for his benefit; Kolster raising $500 of the purchase money. Kolster did not have sufficient money, and Gooding advanced the balance, and took the deed in his own name, and then, on October 16, 1899, leased the property to Kolster for five years at a stipulated monthly rental, and in this lease covenanted and agreed that Kolster should have the right to purchase the property for $2,000 during the life of the lease. This lease and privilege to purchase expired October 16, 1904. According to the testimony of Kolster, about a week or two before the lease expired he informed Gooding that he could not raise the money to pay for the property, and by agreement between them the lease and privilege to purchase was given up. Kolster filed his petition in bankruptcy February 14, 1905. From the testimony produced at the trial, the transactions between Kolster and Gooding with reference to the property were closed more than four months prior to the time when the petition in bankruptcy was filed. The only other evidence introduced was that, after Kolster gave up his interest in the property, Gooding