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the magnet-frame which are fastened to it by bolts, 6, 6, 7, 7. But, as seems evident from an inspection of the model and drawing, the posts, 2, 2, are really supplementary, required by the excessive weight of metal which has to be supported. The lower half of the magnetframe does rest upon the top of the posts, 8, and is supported by them, and upon it rests the armature cradle, which is "clamped between the [two] parts of the magnet-frame." How that clamping is effected is immaterial, whether a threaded bolt couples the cradle to the parts so that they can only be separated by unscrewing, or whether a dowel pin is used which admits of their being separated by merely lifting one off the other is unimportant; such details are not incorporated into the claims. The specification says merely that the cradle is "arranged to be secured in and form a part of the frame of the machine." The Thomson-Houston motor is thus secured, and does form a part of the magnet-frame; moreover, it is "clamped between the parts of the magnet-frame," and so arranged that it lies upon the lower half of that frame, 5, 5, and receives support therefrom. The immateriality of the method of clamping will be apparent from a consideration of Fig. 2. If the parts were reversed (1 and 2 changing places), the machine could, as the specification says, "then be readily attached to the ceiling." If such attachment were effected by fastening the feet, 12, 12, to the ceiling, the parts would have to be held together by screws or by bolts with nuts; otherwise the machine would fall to pieces. If, however, it were attached to the ceiling by metal straps passing under 1 (now become the lower half), dowel pins might be used at the connecting faces. There can be no doubt that either arrangement would be equally within the patent. We are of the opinion that a motor like the Thomson-Houston, large though it be, would constitute an infringement of claims 1 and 3 and that, therefore, being earlier, it is an anticipation.
The Bliss Patent.
It is not necessary to quote from the specifications of this patent or to construe its claims. The machine of the patent and the machine of defendant are identical. The only defense to be considered is prior public knowledge and use. The date of application is February 19, 1900. It is undisputed upon the proofs that a motor, known as the "Type B motor," and identical in construction with the motor defined in claims 1, 2, and 5 of the Bliss patent was constructed in the shops of the defendant in the early part of 1899 was satisfactorily tested in May, 1899, and was shipped to Wm. Cramp & Sons Shipbuilding Company for ventilating steering engine room on United States ship Alabama, on July 8, 1899. A public knowledge and use prior to the date of the application being thus clearly shown, the burden was upon the complainant to show that Bliss' invention was made at an earlier date. Complainant must "furnish the court with convincing proof that the anticipation has been anticipated." Westinghouse Elec. & M. Co. v. Saranac Lake Elec. L. Co. (C. C.) 108 Fed. 221. The complainant undertook to do this by the testimony of the patentee, Bliss. His story is: That he conceived the invention in 1894, made a rough sketch, and showed it to one De Luce (who was not called; his whereabouts
being unknown). That he took no further steps until early in the spring of 1898 when the idea of using a cradle support again occurred to him, and he made further sketches, and disclosed one of them about June 15, 1898, to Bickell, a fellow employé with the Holtzer-Cabot Electric Company, and, about the same time, showed a similar sketch to Holland, another fellow employé. These sketches are lost or destroyed. That in August, 1898, Bliss entered the employment of the defendant company, and was put in charge of the production of the electrical department, and the general supervision of that department, co-operating with the designers and draftsman (Balcom) to carry out any plans that might be necessary. That shortly after he entered the employ of defendant company he discussed the idea of using a cradle form of hanger with Blake, superintendent of the engine department. That immediately afterwards, and about the second week in August, 1898, a sketch was made and shown to Balcom, with instructions to lay out a detail drawing, embodying the cradle idea. That, as a result of his consultations with Balcom, the latter incorporated the cradle form of bearing support in the new Type B motor. That he had frequent interviews with Balcom on the subject. That after the first motor of Type B had been tested and found satisfactory, so far as the cradle type of bearing hanger was concerned, he suggested to Foss, the general manager, and to Snow (manager of Advance Department, who attended to matters relating to the publicity and promotion of the business) the advisability of applying for patents to cover this cradle design. That he did nothing further in the matter until after he left defendant's employment, when he redesigned the cradle type of bearing support, adding a longitudinal adjustment, and applied for patent.
Bickell, Holland, Blake, Balcom, Foss, and Snow, all testified, as did also Admiral Bowles, Naval Constructor, who stated that he suggested to employés of defendant company, before the constructoin of the Type B motor, that the armature bearings should be contained in one piece or construction, so that the difficulties of realignment in the course of repairs would not occur. It would subserve no useful purpose to discuss the details of this evidence. The testimony of the first two witnesses, testifying to their recollection of sketches looked at casually five years before was corroborative of Bliss, although one of the witnesses seems to have had an imperfect recollection of the sketch he saw, saying that it disclosed a detail of construction which Bliss says he conceived later. None of the other witnesses support his story, and some of them flatly and positively contradict him. It is sufficient to say that, upon the whole case, we are not satisfied that the evidence is sufficient to anticipate the anticipation, and that the patent must be held void.
The decree of the Circuit Court is reversed, with costs and the cause remanded to the Circuit Court, with instructions to dismiss the bill, with costs.
MAGINN v. STANDARD EQUIPMENT CO.
(Circuit Court of Appeals, Seventh Circuit.
October 2, 1906.)
1. JUDGMENTS-AMENDMENT OF DECREE-PRESUMPTION OF VALIDITY. An amendment of a decree by a court of general jurisdiction is presumably within its powers and made before the expiration of the term at which the cause was finally disposed of; and such an amendment of a decree in a suit by a wife for separate maintenance, merely correcting the numbers of certain letters patent, an interest in which was decreed to the wife, and as to which numbers no issue was taken, made on motion to correct the decree to conform to the proofs, is not void nor subject to collateral attack, although entered at a term subsequent to the decree, where the record does not show affirmatively that such decree was a final disposition of the case.
DESCRIPTION OF PROPERTY - SUFFICIENCY - PATENTS - TRANSFER OF TITLE BY DECREE.
A patent is sufficiently identified in a decree by giving the number and name of the patentee, and the decree is not rendered void for uncertainty because the description of the invention is not given in the language of the title head of the patent, which is merely used for the purposes of classification in the Patent Office.
Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.
J. J. McClellan, for appellant.
Before BAKER and SEAMAN, Circuit Judges, and QUARLES, District Judge.
BAKER, Circuit Judge. Appellee, asserting title to half of patent No. 415,212, issued on November 19, 1889, to appellant, brought suit for infringement against Ryerson, and made appellant as owner of the other half an adversary by alleging his refusal to join as a complainant. The invention "relates to improvements in a water system supplying buildings and manufacturing plants with water for protection against fire." The title head of the patent is "Water System for Protecting Buildings against Fire."
Appellant filed a plea in which he claimed title to the whole as the legal effect of the facts set forth. The plea was held insufficient, and appellant declined to plead further. From the resulting decree this appeal is prosecuted.
The question of title depends on the validity of certain proceedings in the circuit court of Cook county, Ill., which are incorporated in the plea.
From these it appears that in 1892 Gertrude Maginn, then wife of appellant, instituted suit against him for separate maintenance and for the settlement of financial dealings between them. Respecting the latter, her bill alleged: That in consideration of her supporting him and furnishing money for completing and patenting inventions upon which he was at work he agreed that he would assign to her a half interest in the patents. That among other things, he devised an automatic fire extinguisher and he represented four patents would be required to protect it. That he obtained patents, among others, as follows: Automatic fire extinguisher, patent No. 425,333; water valve, patent No.
145,212. That she had carried out the agreement on her part, while he had failed and refused. There was a prayer for such relief as equity might require.
Maginn's answer to this part of the bill denied that he ever promised her a half interest or any interest whatsoever in any of the patentable devices of which he was the inventor, or in any device which he had ever had patented; and, while admitting that he had been working at various devices as she said, among others "a device on an automatic fire extinguisher which required patents to protect it," failed to take issue respecting the correct numbers of the patents.
The decree, entered November 20, 1894, following the bill, ordered the conveyance of a half interest in "automatic fire extinguisher, patent No. 425,333; water valve, patent No. 145,212."
At the following January term, on February 14, 1895, "without any amendment of said bill and without making or filing any further pleadings or allegations in said cause" (according to the averment of the present plea), the following decretal order was entered:
"This cause coming on to be heard upon motion of the solicitor for the complainant to amend the decree entered in said cause on November 20, 1894, and it appearing to the court that in said decree certain numbers to letters patents were by error and inadvertence of the scrivener incorrectly stated, and it further appearing to the court that in the master's report the numbers of said letters patent were incorrectly stated for the reason aforesaid, it is therefore ordered, adjudged and decreed that said master's report and said decree be amended by striking out of the same the numbers of the patents mentioned in said decree and said master's report and in lieu thereof inserting after the words 'automatic fire extinguisher patent No.' the figures 415,212, and after the words 'water valve patent No.' the figures 425,333, and that in all other respects the said master's report and said decree shall remain the same."
The master's conveyance described the patents as "water system for protecting buildings against fire, No. 415,212," and "automatic water valve, No. 425,333."
The questions are these: Is the amended decree void? Are the words "automatic fire extinguisher, patent No. 415,212," a sufficient description?
1. The circuit court of Cook county is a court of general jurisdiction; that is, its right to act is presumed. Its lack of right must appear affirmatively from the record, cannot be shown collaterally.
The bill of complaint and the motion were sufficient to support the amended decree if it had been entered at the November term. The controversy between Mr. and Mrs. Maginn was over the question whether she had furnished money to keep him at work, for which he had agreed to convey to her a half interest in resulting patents. Subordinately, if this primary issue were determined in her favor, it would be necessary to show what patents had resulted. The bill described. the patents in general terms, but transposed certain numbers, 425,333 being given to the automatic fire extinguisher patent instead of 415,212, and 145,212 (415,212) to the water valve patent instead of 425,333. So far as appears, and therefore presumptively, Maginn made no objection to proof which showed the numbers correctly. His objection now under consideration is that the amendment is void as matter not within the issues. At most, the alleged defect is a mere variance which could have been cured on motion to conform the pleadings to the
proofs, and which, even on direct appeal, might well be deemed cured on account of Maginn's inability to show that he was prejudiced or misled in his defense. But the variance becomes utterly negligible when it is remembered that the amendment is based not merely on the bill, but also on the motion to correct the decree to correspond with the proofs. On the hypothesis that Maginn was yet in court when the motion was made, it tendered him the issue as to the correct numbers as fully as if a formal amendment of the bill had been presented.
But, Maginn further objects, the decree could not be amended at a subsequent term. This assumes that the case was closed with the term at which the original decree was entered. The record does not affirmatively show when the motion was made. But, according to the presumptions which must be regarded, it was made while the cause was still in fieri and when Maginn was present, and was carried to the January term for final disposition.
2. The amended decree identifies the patent in suit by giving the name of the inventor and patentee, the serial number, and a description as being "an automatic fire extinguisher." The alleged uncertainty or ambiguity arises from the fact, stated in the plea, that in the art pertaining to the automatic extinguishment of fires the term "automatic fire extinguisher" is confined to sprinkler-heads, while the patent in suit is not for a sprinkler-head, but for a device properly classified under the head of "water systems for protecting buildings against fires.' The contention is that the means and the only means of identifying a patent is by its title head. We are of the opinion that the short description in the title head is required for the purposes of Patent Office classification, that a conveyance by reference to the title head alone would be uncertain because applicable to any of the class, and that the name of the patentee and the serial number afford a clear and definite description. There can be but the one Maginn patent numbered 415,212.
It is needless to consider whether the master was justified in putting into the conveyance descriptive words not found in the decree as amended.
The decree herein appealed from is affirmed.
GERMER STOVE CO. v. ART STOVE CO. (Circuit Court of Appeals, Sixth Circuit.
1. PATENTS-INFRINGEMENT-STOVE LININGS.
January 18, 1907.)
The Condit patent, No. 358,545, for a lining for stoves or furnaces, is limited by the prior art to a lining having vertical air cells therein, open at the bottom below the grate and closed at the top, and having narrow slit openings from such cells into the fire chamber. As so limited, held not infringed.
2. SAME-AGGREGATION OF OLD ELEMENTS INDEFINITENESS.
The Germer patent, No. 587,366, for improvements in fire pots and grates for stoves, claim 1, which is for a fire pot having vertical air passages in the walls thereof and vertical slits connecting the same with the inside of the fire pot in combination with a substantially closed grate, is void as not disclosing a true combination, but a mere aggregation of old elements, each performing its old function independently of