649
JEDERAL REPORTER.
by no means satisfied that the defendants are not using the complainanfs formula in substance, I do not think it would be aafe, upon the e,vidence offered, to find affirmatively that they are using it, and have falsified as witnesses. The bill is dismissed, with costs.
BURTON t1. THE TOWN all' GREENVILLE.
(Oircuit Ooure, D. New Hampshire.
July 21,1880.)
PATENT No. 10,497, for a design of a street lamp, Mid void, upon the ground that sueh design had been in publi9 use for more than two years when such patent was applied for.
In Equity. Geo. E. Betton, for complainant. Stearns d; Butler, for defendant. LOWELL, C. J. The complainant has taken out and now owns two patents for designs of a street lamp: No. 9,488, September 5, 1876, and No. 10,497, February 19, 1878. The former describes and shows by a drawing a lamp post, with an enlarged base and a smaller shaft, surmounted by a cap. From the cap projects an overhanging curved arm, from the lower and free end of which depends a chain, made fast to the outer corner of a bracket, in which the lamp or lantern is set. This bracket has projections loosely fitting the post, so that the lantern can be moved up and down. The lamp is suspended under the center of the arch or arm. The patentee claims "a design for street and park lamps, composed of the upright post with enlarged base, the arched arm, the chain, the bracket, and a lamp placed below the arch, all sub. flf,antially as shown and described." The second patent describes and shows a design which differs from the first in certain particulars. It has two lanterns, one on each side of the post. The bracket which holds the lantern is more complete, having lower edges and sides, so as to form a carriage or cage, rather than a bracket; and this is upheld by a bailor handle, which is attached to the middle
BURTON
V.TOWN OF
GnEENVILLE,
'&4:3
instead of one comer oftlie carriage, a.nd thus brings the lantern directly under the free end of the arm, instead of under its curved part, or arch. The claim is for the design for a lamp post, consisting of the post, carriage, bails, lamps, chains, and arches, all substantially as shown and described. Between the arohes there is an ornament in the form of an acorn, which is mentioned in the specification but not in the claim. The application for this patent was filed January 18, 1878. It is considered by both parties to the suit that the two lanterns of the drawing are duplicates, and that if the patent is valid it is infringed by the use of a lamp post like the patent 10,497 in all respects, except that it has but one lantern. The posts chargod as infringements have but one lantern, but in other respects are almost exactly like the patented design. The plaintiff had obtained a mechanical patent, June 13, 1876, No. 178,508, for an improvement in street lamps, and his drawings represent a lamp post of similar design with No. 9,488, except that it h,as four lanterns on one post. A question is made by the defendants whether an inventor is not to be presumed to abandon his design when he exhibits it in the drawings of a mechanical patent. I do not see why this consequence should follow until the design has been in use for two years; but I do not decide this point, because the plaintiff's second patent shows a much improved design, and he relied entirely upon that patent in his brief and his argument. I agree with him that the mecha.nical patent and its duplicate design do not anticipate the more pleasing and finL; ished design of No. 10,497. The defendants, in their answer, rely on two mechanicaJ patents to John M. Bruce, for lamp posts with chains and weights, the first of which is earlier than the earliest olBurton's, and has a more extensive claim. This patent plied for November 14, 1874, and issued December 22, 1874; and thereafter Bruce appears to have' dealt somewhat extensively in lamp posts having these mechanical contrivances. But his patents do' not show posts like the plaintiff's. The first has two posts, between which the lantern is bung; and
FEDERAL
the .second has. brackets to set up .the lantern against a waH. As,designs, therefore, they cannot be held to anticipa,te Bur. .The amended. answer avers that on the eighth of November, 1875, Bruce caused a design to be drawn and publicly exhibited, which is identical.with that of the plaintiff. Bruce testifies that he did, in fact, ma,ke and sell lamps substantially like.theplaintiff's design, long before the latter tained his patent. Those complained of as infringements were set up in the'.defendant town 20 months before theplq,intiff's application for patent 10,497. was made. They resemble so closely the model.C, which the plaintiff produces as representing his patented design, that it is almost impossible to believe that one was not cop,ied from the other. But Bruce no opportunity to copy anything from the' plaintitI, because the plaintiff made unless it were a model, to which Bruce had no access, until October, 1876; while these lamps were put up in May, 1876, within two miles and a half of the plaintiff's house. In August, 1876. the plaintiff applied for, and in September obtained, his patent, No. 9,488, for a much inferior design., Yet he now. thinks that he in. vented the better form about September, 1875. Bruce exhibited publicly to a committee and certain inhabitants of the town of Peterborough, New Hampshire, November 8, 18'{5, a drawing of a lamp post, which he was ready to sell them, and. which is like the patented and the infringing design. He testifies that he had made others like it, excepting the ornament on the top, which forms no part of the plaintiff's claim, as early as November, 1874. 1 am much inclined to believe, upon the evidence, that Bruce invented this design, and that Burton, when he took out his patent, No. 10,497, knowing this, intended to claim only the post with two lanterns. However this may be, I am of opinion that Bruce had put this design into public use, and had offered it for sale as early as November 8, 1875. which was more than two years before the plaintiff's application, and therefore avoids his patent. Bill dismissed, with costs.
WILLIAHSV.STEAM-TtG WM. COX.
G4:5
'WILLIAMS
v.
THE STEAM-TuG WM. COX. J . I
(District Court, 8. D. New York. July 24,1880.) 1. NEGLIGENCE-PILOT OF OF BOAT, IN Tow,-It is negligence in both the pilot of a tug and the master of an open loaded boat to attempt to tow such boat across the bay of New York in a gale of wind. , , MaBon v. The Steam-tug WiUiam Mu"tau{jh, ante, 404, followed.
E. D. McCarthy, for libella.nt. F.A. Wilcox, for claimant. CHOATE, D. J. This is a libel brought by the owner of the barge Island Home to recover forthe 109s of the barge, her cargo, and pending freight while on a voyage from Port Johnson, N.J., N. Y., by way of the bay of New York and the to East river, on the twelfth day of February, 1879, in tow of the steam-tug Wm. Cox. The barge was about 95 feet long for about 11 feet in and 17 feet wide. Her deck was width and 60 feet in length. This opening was without any covering, but had combings about it some 18 inches high. Her carrying capacity was about 230 tons, and she had a cargo of 210 tons of pea coal, unscreened, containing a great deal of dust. She' was nearly on an even keel, but loaded slightly by the head, and, when she started, her deck was about two feet and eight inches out of water. The tug had two other boats in tow, which she took on her starboard side. The barge was lashed to her port side. They left Port Johnson at about eight o'clock in the morning, and the barge sunk in the East river, about off Wall street ferry, a little before 11 o'clock. When they left Port Johnson the wind was blowing about 25 miles an hour, and it increased somewhat as the day advanced. The direction of the wind was, as nearly as can be ascertained, west. The barge was in charge of the libellant, who had had a long experience as a boatman in the navigation of the waters about New York. The wind had been blowing hard all the morning, and the danger signals had been displayed at the United States signal service station since 2 o'clock that morning. The tug left Hoboken about