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distinction in terminology, as already shown, has been uniformly preserved, and in Ballin v. Magone, 41 Fed. 921, Judge Lacombe, referring to the provisions of the act of 1883, says:
"The tariff act itself, however, recognizes a difference between woolen and worsted articles; between goods composed of worsted and goods composed of wool. We find the words 'wool' or 'worsted' used in contrast at least six times in this very schedule; and the examination of successive tariff acts, back to, I think, 1816, shows an unbroken continuance of such contrasting use. It seems plain, therefore, that the words 'woolen cloths,' used in the paragraph on which the defendant relies, are to be taken as including only those woolen cloths which are not worsted, or composed of worsted, within the meaning of those terms (that is, 'worsted,' or 'composed of worsted'), as used in this tariff."
In five of the instances above referred to as illustrations of this distinction the rates of duty were the same. The schedule in question is entitled "Wool and Manufactures of Wool." It is well settled that the title of an act may legitimately be resorted to as an aid in determining legislative intent when that intent is otherwise ambiguous. But the supreme court of the United States has recently held, in Hollender v. Magone, 149 U. S. 586, 13 Sup. Ct. 932, and Seeberger v. Schlesinger, 152 U. S. 581, 583, 14 Sup. Ct. 729, that such titles to the schedules in a tariff act are merely intended as general suggestions of the character of the articles within such schedule. Under the above title are included not only articles made from the fleece of the sheep, but also those made from the hair of the camel, goat, alpaca, and other animals, and certain manufactures of flax and cotton. It is not claimed by the government that the paragraph in question refers to goods made from the hair of animals other than sheep, or to any goods except such as are composed of wool or worsted. In Reiche v. Smythe, 13 Wall. 162, 164, and Maddock v. Magone, 152 U. S. 368, 371, 14 Sup. Ct. 588, it is held, in reference to the construction of tariff acts, that when the same word is used in successive acts, and special meaning was attached to said word in a former act, it will be presumed, in the absence of evidence of a contrary intention, that it was intended that said word should receive the same interpretation in the later act. It is claimed by the government that such evidence of a contrary intention is furnished in this case by the policy of the government as indicated in the letters and official documents already referred to, and in the considerations of inconvenience which would arise from the construction contended for by the importer. That the distinction was directly brought to the attention of congress and acted upon by it; that congress has failed to use the word "worsted" in said paragraph 297; that under the title "Wool and Manufactures of Wool" are included articles not composed of wool,strongly suggest that congress may not have intended to include "worsted" under "manufactures of wool," and seem to rebut the claim of the counsel for the government that congress intended to give to the word "wool" a different signification from that which it had previously borne. The opinion of the supreme court of the United States in Refrigerating Co. v. Sulzberger, 15 Sup. Ct. 508, states the guiding principles of construction and interpretation in
such a case. The court there holds that when the language of an act is explicit there is great danger in departing from the words actually used, in order to give effect to the supposed intention of the legislature, and that in such circumstances the court should not so construe the statute as to embrace cases, because no good reason can be assigned why they were not included within its provisions. The court further emphasizes the rule that it is not for the court to add to or subtract from the express provisions of the law, but only to interpret the law as it exists, leaving to congress to make provision for cases where such enactment may operate unjustly. In view of the failure of congress to make any distinction between the various classes of articles in said schedule, other than by the use of a word in the title, which, by the settled definition of courts and legislature, excluded the articles in question, and in the absence of any positive evidence of intention to include said articles within the provisions of said paragraph, I think it would be a violation of the principles of construction and interpretation to extend the language of said paragraph so as to include "worsted goods." The decision of the board of general appraisers is reversed.
EVERETT v. HAULENBEEK et al.
(Circuit Court, S. D. New York. July 8, 1895.)
1. JURISDICTION OF FEDERAL COURTS-PATENT INFRINGEMENT SUITS-LICENSES. The federal courts have jurisdiction of a suit for infringement of a patent notwithstanding that a license is set up in defense, so that the question of its existence is involved, and must be tried in trying the question of infringement. Jurisdiction in respect to infringement includes jurisdiction of all questions whether the license covered the infringement. 2. PATENTS-INVENTION.
The discovery of a method of preparing peas by cooking and flattening them while moist without breaking or comminuting them, producing flat disks, while preserving the individuality of the peas, held to show invention over the old methods of preparing various grains by cooking and crushing, comminuting, desiccating, or otherwise breaking or dividing them while soft.
8. SAME-PREPARATION OF PEAS.
The Beach patent, No. 215,313, for an improvement in the preparation of peas, by cooking and flattening them while moist, without breaking them, held valid and infringed.
This was a bill by William W. Everett against John W. Haulenbeek and others for infringement of a patent for an improved method of preparing peas.
Walter D. Edmonds, for plaintiff.
Nelson Smith, for Peter Haulenbeek.
Clarkson A. Collins, for John Haulenbeek and William Mitchell.
WHEELER, District Judge. The plaintiff, a citizen of Missouri, brings this suit against the defendants John W. Haulenbeek and William L. Mitchell, as principals, and Peter Haulenbeek, as aider and abettor under a pretended license, citizens of New York, for
infringement of patent No. 215,313, dated May 13, 1879, and granted to Henry H. Beach, for an improvement in preparation of peas by cooking them in hot vapor, and flattening them while moist, without breaking or comminuting them, thus changing their shape from globular to that of flat disks, and preserving their individuality. The claim is for, as a new article of manufacture, cooked and flattened peas, as set forth. The defendant Peter Haulenbeek sets up a license by plea supported by answer. The defendants John W. Haulenbeek and Mitchell set up by answer anticipations, with two years' prior use, and deny the validity of the patent; and admit making and selling steamed and flattened peas substantially the same as those described and claimed in the patent. Both answers are traversed.
Question is made whether this court has jurisdiction touching the license; but the suit is not brought upon the license, nor against it, but for infringement; and when the license is set up as an answer to allegations of infringement the existence of the license is involved, and must be tried in trying the question of infringement. Hammacher v. Wilson, 26 Fed. 241. More clearly, jurisdiction of a question of infringement must include all questions whether the license covers the infringement. This license was personal, for practicing the invention within prescribed territory, and required a monthly account, with payment of royalties. This would not seem to carry any right to aid and abet others in practicing the invention. The testimony of Peter Haulenbeek exhibits a desire to show that John W. Haulenbeek, with Mitchell as partner, practiced it for him, under this license; but the form of defense, the circumstances, and Mitchell's testimony, are opposed to this view, and John W. has not testified. Upon the whole, their infringement seems to have been done in their own behalf, independently of, and not for, Peter. In trespasses all who are guilty are principals, and those who do not so far participate as to be principals are not guilty; and Peter Haulenbeek does not appear, on all the evidence, to have so far had a part in what John W. and Mitchell did as to be liable for it. The bill must therefore be dismissed as to him, but, in consideration of his attitude, without costs.
The question remaining as to the other defendants, as made by their answer, is solely as to the validity of the patent. That the cooking, or partial cooking, of various grains, and crushing, comminuting, desiccating, or otherwise breaking or dividing them, while in a soft state, were old and well-known processes, many of them patented, and all of them in use at the time of this invention, is amply shown by the evidence. None of these methods merely flattened the kernels, but all included some form of breaking them. The patent distinguishes this invention from all of those things by providing for flattening and preserving individuality without any breaking. The two-years prior use rests substantially upon the same things. The want of patentable novelty, as illustrated in Glue Co. v. Upton, 97 U. S. 3, is strongly urged in behalf of these defendants. The substance of a pea is said to be, and is, the same, whether left round or made flat. The change is of form, merely,
and the patent is solely for this change of form after cooking. that case Mr. Justice Field, in delivering the opinion of the court, after stating the substance of the specification, said:
"It thus appears that the invention claimed is not any new combination of ingredients, creating a different product, or any new mechanical means by which a desirable change in the form of a common article of commerce is obtained, but it consists only of the ordinary flake glue reduced to small particles by mechanical division."
This invention is not applicable to, not useful for, single peas, but to masses of peas, of varying diameters, reducing them to uniform thickness for evenness in drying or roasting. The patent covers such a desirable and useful change of form, which is more than a mere reduction in size. If any part of the invention is in the process of cooking the peas first, so that they can be flattened to uniform thickness without breaking, and then flattening them, the process so inheres in the product, like that in Smith v. Vulcanite Co., 93 U. S. 486, as to make the product of the process patentable. Upon these considerations the patent seems to be valid, and the plaintiff to be entitled to a decree against those infringing it. Let a decree be entered for the plaintiff against John W. Haulenbeek and Mitchell for an injunction and an account, with costs; and dismissing the bill as to Peter Haulenbeek, without costs.
UNION SWITCH & SIGNAL CO. et al. v. PHILADELPHIA & R. R. CO.
(Circuit Court, E. D. Pennsylvania. May 28, 1895.)
PLEADING IN PATENT CASES-MULTIFARIOUS BILL.
A bill which alleges infringement of five different patents, without showing that the inventions or improvements covered by them are conjointly used by defendants, or all used in or upon the same machine, device, article, or apparatus, or are capable of such conjoint use, is bad for multifariousness. Consolidated Electric Light Co. v. Brush-Swan Electric Light Co., 20 Fed. 502, followed.
This was a bill by the Union Switch & Signal Company and others against the Philadelphia & Reading Railroad Company and others for infringement of five patents relating to apparatus for electric railway signaling. Defendants demurred to the bill.
J. Snowden Bell and George H. Christie, for complainants.
DALLAS, Circuit Judge. Upon the argument I inclined to think that it might be possible to sustain this bill against the charge of multifariousness, and so avoid multiplicity of suits. After careful examination of the bill, however, and upon full consideration of the authorities, especially of the case of Consolidated Electric Light Co. v. Brush-Swan Electric Light Co., 20 Fed. 502, I am convinced that it would be a mistaken and oppressive exercise of the discrev.68F.no.8-58
tion of the court to require the defendants to meet in a single answer, and by connected proofs, the allegations made with respect to the five patents which the complainants have here set up.
The second and third grounds of demurrer need not be considered. It is not necessary to pass upon them in the present case, and it may be that they will not be applicable to any case which may be presented hereafter.
The cause of demurrer first assigned is as follows:
"First. That it appears from the face of the bill of complaint that the said bill of complaint is altogether multifarious, in that suit is thereby brought against said defendants for five separate and distinct matters and causes,to wit, for an infringement of letters patent No. 233,746, granted to Oscar Gassett, for improvements in circuits and apparatus for electric railway signaling; for an infringement of letters patent No. 246,492, granted to Oscar Gassett, August 30, 1881, for improvements in electric railway signaling apparatus; for an infringement of letters patent No. 270,867, granted to George Westinghouse, Jr., for an improvement in electric circuits for railway signaling; for an infringement of letters patent No. 227,102, to Oscar Gassett and Israel Fisher, for an improvement in rail connectors for electric track circuits; and for an infringement of letters patent No. 273,377, granted to Charles J. Means, for an improvement in electric railway signals. That these several matters and things cannot be properly joined in one suit, and that these defendants, being by this bill of complaint required to litigate five distinct and unconnected controversies in this one suit, are thereby put to great and serious inconvenience and disadvantage, contrary to the spirit and purpose of equity, and cannot properly make answer thereto, as in right and justice they are entitled. That it nowhere in said bill of complaint appears, nor is it alleged, that the improvements recited in said patents are all conjointly used or infringed by these defendants, or are all conjointly used or infringed by the defendants in or upon one and the same machine, device, article, or apparatus, or are all capable of conjoint use in or upon one and the same machine, device, article, or apparatus, but, on the contrary, it appears on the face of the said bill of complaint, and of the aforesaid patents forming part thereof (profert of each and all of which having been made therein), that the said improvements described and claimed in said several letters patent are of such a diverse nature and character that they are incapable of conjoint use, and cannot be used conjointly, or conjointly in one and the same machine, device, article, or apparatus."
For the cause thus assigned, the demurrer is sustained, and the bill adjudged insufficient.
UNION SWITCH & SIGNAL CO. et al. v. PHILADELPHIA & R. R. CO.
(Circuit Court, E. D. Pennsylvania. June 18, 1895.)
PLEADING IN PATENT CASES-MULTIFARIOUSNESS-AMENDMENTS TO BILL Where a bill for infringement of five separate patents was declared bad for multifariousness, held, that an amendment averring the conjoint use by defendants of the subject-matter of each of the patents in one and the same connected machine, mechanism, or apparatus should be allowed.
This was a bill by the Union Switch & Signal Company and others against the Philadelphia & Reading Railroad Company and others for infringement of five separate patents relating to improvements in electric signaling apparatus for railroads. The bill was hereto