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limited claims in question, indicate the patent was restricted to a comparatively narrow field of improvement. The specification states :
"This invention relates to tires having inflatable cores ; and it consists in the character and construction of the inclosing sheath and the mode of securing the same to the rim.”
The character and construction of the proposed sheath are specifically shown. No novelty was suggested in the rim. Its construction for the broader type of the device is :
“The rim is a bollow rim made in a familiar manner from tubing, having the outer side transversely concave to form a seat for the tire."
A special form is suggested: “For the purpose of adapting it to receive my improved tire, the rim is preferably formed with the peripheral channels, a', a', in the outer or concave wall; but these are not essential to my invention, considered its broadest phase. Their use, when present, will appear from the further description."
The lateral portions of the sheath the patentee made of folded canvas or other web, joined at the folded edges to thread or rubber of sufficient thickness to stand wear and “sufficient elastic flexibility to adapt it to yield with the core, and having also tensile elasticity, so that the sheath which comprises it as the middle section is transversely extensible to a slight degree.” The purpose of this extensibility was to adapt the sheath for use with either an inflatable or a a nonextensible core. At the outer end of the folded canvas hooks or buttons were placed, and in the rim at corresponding distances were put engaging eyelet holes or button; "said eyelet-holes or buttonholes being formed in the channels, a', when the rim is made with such channels.” When the core is inflated, “its tension being exerted in all directions tends to draw the hooks securely into the respective holes in the rim and effectually prevents dislodgment.” Of this button connection, which the patentee evidently regarded as the substantial feature, “in the character and construction of the inclosing sheath and the mode of securing the same to the rim,” he says:
"The use of the buttons or hooks, in lieu of any continuous fastening, affords the advantage of detachability for short distances without detaching the entire edge or even any large section of the edge, and, as compared with familiar devices, such as continuous lacing, it affords a similar advantage that the fastening need not even be relaxed or slackened anywhere except at a point where it is desired to completely detach in order to get full access to the core."
To make the fastening still more secure, the patentee suggested an additional element, which, it will be noted, forms an element in the claims here in controversy. It is thus described :
“It is not a necessity that the lateral pieces, O"—that is, the canvas or web. sides—terminate at their lines of reinforcement or attachment to the rim, and, on the contrary, one or both of them might be extended farther under the Inflatable core, so as to rest between said core and the rim and form a lining for the seat of the core in the rim; and such extension adapts the sheath to be held more firmly in its place by the inflation of the core, and such inflation, holding the inwardly-extended edges of the sheath firmly seated between the core and the rim, keeps the beads formed by the cord, c-an alternative construction of a strengthening cord placed in the folded edges of the web-in the grooves or channels, a', of the rim, and makes them assist materially in holding the sheath from spreading when the core is inflated."
The limited side type is described in claim 2, which reads as follows:
“The rim and an inflatable core, combined with an envelop or sheath for the core, parted under the core and fastened to the rim at two peripheral lines, one on each side of the plane or parting, and detachable from the rim at one of the said lines of fastening, said sheath having its lateral portions flexible, but not laterally extensible, and its middle portion, including the thread, elastically extensible, substantially as set forth."
And the extended side in claim 5, which is for:
“The rim and an inflatable core combined with an envelop comprising a tread of cushioning substance and lateral portions composed of textile fabric which are joined to the rim at two peripheral lines, and extend inwardly from said lines underneath the core between the same and the rim in the plane of the pressure radial with respect to the wheel, which is experienced by the tread and exerted by the inflation of the core, whereby the tension of the air in the core due to inflation and to the pressure of the load operates on said inwardly-extending fabric portions of the sheath to hold them seated in the rim, substantially as set forth.”
And in claim 10, which is for:
"In combination with the rim having peripheral grooves in the tire-seat, the inflatable core and envelop for the same rifted at the inner side to admit the core and permit its removal, and comprising a tread of cushioning substance, and lateral portions which are provided respectively with beads adapted to engage the grooves of the rim, and extending inward from said beads to the rift, whereby the inflation of the core presses such inwardiy-extending marginal portions of the sheath against the rim between the planes of the beads, substantially as set forth.”
In the respondent's device, however, the sheath ends with its two peripheral side connections with the rim. No theory or ingenious contention can change that fact; and fact, not theory, is the test of infringement. Accordingly we hold respondent does not infringe.
The third patent is No. 466,565, issued January 5, 1892, for a wheel tire, claim 7 of which is alleged to be infringed. The defense is noninfringement. We think the defense is sustained. The patent requires no detailed discussion. It is a device for fastening a tire sheath to a rim by means of hooks, five different modifications of which are shown in the drawings. The element of the seventh claim, “the endless seamless tire-sheath of rubber or like cushioning substance circumferentially rifted at the inner side and joined to both edges of the rim, * substantially as set forth," is the hook connection of the specification. The respondent, using no hooks to make its connection, does not infringe.
The fourth patent is No. 523,314, issued July 17, 1894, for a wheel tire, of which claims 1, 2, and 3 are alleged to be infringed. The defense is noninfringement. As pertinent to the present case the patent was for a tire provided with an auxiliary wedging device. This consists of a circular ribbed ring, preferably of soft rubber, cemented to the inner periphery of the tube. “The use of the ring, D, as a base for the core, is a convenient means for rendering the compression or ‘fullness of the core uniform throughout its circumference; said core and ring being secured together and cemented before they are put into the sheath, and the 'fullness' being in that manner easily distributed equally.” The function of these parts is described as follows:
"If the tire cavity is directly inflated, the air pressure produced therein will tend to seat the ring, D, in the rift of the tire, and force its rib, D', thereinto, *
* and when the tire is collapsed, so that it may be readily squeezed together, such manipulation will withdraw the ring and its rib, D', from the rift, and permit the tire to be disengaged readily from the ring."
This ring, it will be noted, is an element of each of the claims in question. Now the respondent has neither ring nor rib on its core, but is alleged to infringe by the use of small butterfly bolts placed at four quadrant points on the rim. Such bolt consists of a piece of stiff metal about two inches long, with upbent sides. It is clamped to the rim by a rigidly fixed bolt and nut, with a set screw, and serves to keep the sheath in place on the rim, should the core become deflated. The bolt is not affected by either tire inflation or deflation. It is thus clear that its function and structure are wholly diverse from the ringed rib of complainant's patent, and perform a wholly different function.
Holding, as we do, that no infringement of any of the patents is shown, this bill will be dismissed on presentation of a decree.
INTERNATIONAL TEXT-BOOK CO. V. INHABITANTS OF CITY OF
(Circuit Court, D. Maine. September 3, 1907.)
COMMERCE–INTERSTATE COMMERCE_VALIDITY OF MUNICIPAL REGULATION.
A city ordinance merely providing that “no person shall distribute in any public street or from any buildings handbills, cards, circulars or papers of any description except newspapers,” reasonably construed and enforced by the officers as a police regulation only, to protect people on the streets from annoyance, is not unlawful as an interference with interstate commerce as against a concern doing business in another state and desiring to distribute on the public streets circulars advertising such business.
[Ed. Note.-State laws interfering with interstate commerce, see note to
PUTNAM, Circuit Judge. This is a motion for an interlocutory injunction. The complainant was incorporated in Pennsylvania, and is engaged in conducting a system of instruction by correspondence, which involves among other things the distribution of text-books and various educational outfits from Scranton, in that state, to points in that state and other states. The complainant claims that this is interstate commerce, a definition which may well be doubted. We may well question whether the mere occupation of giving instruction can
be commerce, and whether, therefore, as the main purpose must be classified as noncommercial, the incidents thereof must not also be classified in the same way.
The bill complains of an ordinance of the city of Auburn in the following terms:
“No person shall distribute in any public street, or from any buildings, handbills, cards, circulars, or papers of any description except newspapers."
This ordinance clearly is not intended to interfere with any fair method of soliciting the purchase of merchandise involved in interstate commerce which decisions of the Supreme Court protect, but rather with annoying methods of incumbering the streets, and of interfering with persons traveling therein. The words "from any buildings' are clearly to be held as relating to the distribution of circulars from a building into the public streets, and the whole ordinance must be construed to be of the character which we have described.
The affidavits show that, on an application of the agent of the complainant to the city marshal of Auburn, the latter put on the ordinance a fair construction, to the effect that the complainant must not stop people on the street for the purpose of forcing on them its circulars, and the agent was told by him that such was the only interference the complainant would suffer. It is true that the marshal forbade the agent from handing circulars to people in any way; but, taking the whole conversation together, it is evident that everything said related to a general distribution of such things. There is nothing to show that the ordinance intended to interfere with the distribution of circulars to people asking for them either on the streets or at any office of the complainant, or their distribution in an orderly manner essential to the right of solicitation which the Supreme Court has declared to be a proper incident of interstate commerce.
Moreover, there is nothing to show that any discrimination whatever against the complainant corporation, or against 'nonresidents, was attempted or intended. Under these circumstances, the case as presented to us shows only an attempt on the part of the city of Auburn to exercise its police powers for the purpose of regulating its streets and protecting from annoyance persons traveling thereon.
The motion for an interlocutory injunction is denied.
In re KETTERER MFG. CO.
(District Court, M. D. Pennsylvania. August 23, 1907.)
. No. 964, in Bankruptcy.
BANKRUPTCY-ELECTION OF TRUSTEE-VALIDITY.
Exceptions to the election of a trustee in bankruptcy, which was approved by the referee, overruled, where the election was by a large majority of the creditors in number and amount of claims, and the only substantial objection was that it was brought about by a conspiracy between the attorney representing a majority of the creditors and a former officer of the bankrupt corporation to secure control of the property, but the trustee chosen was apparently a competent and disinterested person.
In Bankruptcy. On certificate from J. R. Vandersloot, referee.
ARCHBALD, District Judge. There have been three elections of a trustee in this case. One the referee set aside, another was set aside by the court, and the third, having been approved by the referee, comes up now upon exceptions. Sixty-five claims which had been allowed by the referee were voted at the last meeting of creditors, of which 49 aggregating some $18,000, were cast for R. L. Ehrhart, and 16, aggregating $7,786, for Paul Winebrenner, Mr. Ehrhart being declared elected. Of those voting for Mr. Ehrhart, 33, however, were excepted to, leaving 16 that were not, which together amount to but $1,550; so that, if the exceptions are sustained, the election must be declared invalid, neither party commanding the requisite majority. But the objections to some of the principal claims are so obviously without substance that by no possibility can they prevail. And these added to those as to which there is no question, without stopping to consider others, gives such a decided preponderance in favor of the trustee now selected—25 in number, and over $16,000 in amount—that, unless it is made plain that the selection will be prejudicial to the best interests of those concerned, there should be no further delay in confirm
It is charged that Mr. Ehrhart is chosen by means of claims represented by Mr. Delone which have come to him through a circular letter sent out by Mr. Hopkins in which they were solicited; he and Mr. Hopkins having conspired together, as it is said, to secure the control of the company's property, the estate, if judiciously administered, being sufficient to pay all creditors and leave something over for stockholders. No doubt Mr. Delone and Mr. Hopkins are acting together; and it must be confessed that Mr. Hopkins' management of the affairs of the company which brought about its present difficulties is seriously discredited. It is also true that, after Mr. Hopkins was deposed, he was instrumental in having a bill filed against the company by which it was put into the hands of a friendly receiver in the state courts, which forced the present proceedings in bankruptcy. And in the issues made in this court between the majority and minority stockholders the court, being compelled to elect, has so far felt called upon to favor the majority. But in the selection of a trustee the law makes paramount the wishes of creditors, within certain limits, and Mr. Hopkins certainly enjoys the confidence of a decided majority of these, proved and unproved, whatever may be the case among his fellow stockholders. The trustee now chosen also is an apparently competent and indifferent party, who has been approved by the referee who is better advised with regard to the local conditions than the court can
1 Such as Sullivan & Sons, $2,259.18, Edward Stinson Manufacturing Company, $1,074.97, Hoopes Bros. & Darlington, $1,561.34, H. N. Gitt, $2,002, James II. Cranwell, $2,802.52, J. Gibson McIlvaine Company, $1,325.35, E. R. Merrill Spring Company, $2,386.60, Union Forging Company, $646.02, aud C. J. Delone, $750.