mt;lop. :Shlqy.!; . The, ,Qase will pl'obably go, to court,and, if tJiei .0fl&W in regard to the: rule for computation of profits !\nould not be st;lstainlld, it WOll Id; be-: ;verydasirable to 'have the findings of of this court upon. the volume oLtestimony in such .QOridition,that the supremecour.t Can, also review thelq'liestions of fact, if pr.acticab:le,.bring this expeIJsive litigation to,8.:close. To this eng it itpportant,thaUhe recoIU:J:riitted for the pur,Pose ,specified In 'n1,y , ., The next question is in regard to the admission,of.newtestimony by tllecomplainant.in ,respect to device. The. defendants' testimony, to this loom wasJaken near the close of the exhaustive master. ·,The"complainant's counsel.wel'e not at the to find, ,rebutting testimony, for the reason stated also, in my opinion; did not give the importan9El which it subsequently It is now ablete> find and to produce testimony not bri,ng itself, without queswhich it deems important. tion, within the rules which ordinarily govern the reopening of a hearipg Wadmit ,p6wrly-discovered,' e.v.idence, ,the complainant has not yet presentell that.part of its case, and 'pas not had a full opportunity to do i\o,i and it:WQul<:i pe, in my opiniOlll"ihequitableto say that it never shall p11es(jnt it..: motion of theplaintifi' is granted. . The: reipaining question ariseS upon. ,the application of the defendants r8\l.rgq.r.neQtof. the to the master's report, in order to show that. th.e facts in. regard to the Johnson motion, which the court c;lC!3ir,es to fQund,were found by,the master. adrattreport !lad !;leen :submitted,and exceptions thereto had been filed, which were .Qvetruled, the master signed and filed the draft as his . final.eport. He alSf:) says in bis I:eport: ;,;" .reqlleSls, somewhat voluminous, to fhid· facts' and conclusions upon mattt'rs npt included in, having been presented, such reare with. ml :action indicated :'. The 6,led 92 upon matters of fact, and 14 requests to of law.·: To the requests :npon matters of master appended the find,". or III 'do not so find," or "Subst811tilllly correct.". These findings were treated by the parties as, and I have assumed them to be, addenda to the master's report. but lhave not attributed to contained therein' the same impprtaQce whichunquestionablybe 16111gs to the main report.' The ninth request is to find that the folloWing number of yards of carpet were 'Woven at defehdatJts' mill during'the'years 1874 to the , average amount woven per loom per day being statoo' as reduced pro t'qtato the number of wirestdthe inch of carpettoati arithmetically equivalent Dumber' of yards 'ofJ'uin&.'Wire carpet, the yards so reduced beiI)gtermed H 9-wire level; *, *>, 1'1' on 54 Gilbert & 'raft looms, includingtbeSterling loom, andthireeiSllrnple looms, Nos. 54, 55, and 56, with, the Dl1vis and Duckworth .wire 'motion devices, * * * average: per day 53.37 yards." The 'master 'says: II I so find." Similar
WEBsTER ,LOOM
co. 'l1.-'lItGGINS.
requests were regard to each setal class which made tip the 61 infringiIlR looms.: daily average 'of the 61 looms is found to be 52.90 yards. The fifty-niilthrequest is that"The Johnson'loom, with the said motion, for the seven years-May 1, 1874, to April 3D, 18S1-wove from yards to 1,842,314 yards per year of IO-wire tapestry, 216 sets of, worsted ends, and averaged a daily production in gross per year of from #.65 to 50.55 yards per loom of said carpet. A sl11al1 immaterial amount in fact of shoe carpet was woven in the earlier years' irregularly on a few looms. The gross daily average or loom for said seven years was 48.531 yards of 10-wire carpet, equal to 53.935 yards of 9-wire level." ' The master said, "Substaotially co\rrect.": In reply tosubsequl;lnt raquests the master found faots which, it is 'claimed, gave the Johnson loom additional allowances in its favor; so that if an estimate of these. allowances was made it would be found that the Johnson loom, with its motion, could weave 8.16 per cent. more per day than the 61 infringing looms did, upon an average, weave. If this evidence enables the master to find, as his conClUSIon from it and the other testimony, that the Johnson motion was equal or superior to the motion which, for convenience sake,'I the "Webster motion," he can easily state such conclusion. ,He did not state it in his answers to the eighty-second and eighty-eighth requests, although he had an opportunity to do so; and the omission seemed to me of importance. The general conclusion which tbe 'defendants asked.,the master to find in regard to the superiority of the mbtii;lDs, seven of which they claimed to be free and open to the public at the date of the Webster pateIit, we,re, with the answers thereto, as follows: . . . . "(81) Complainant has not sbown any gain or profit or advantage tO'defendants by the use of the Davis or Duckworth .Illotions, as compared with the use I11lder similar cirC\lPlstances of the following motions: (a) ',I'he The Collier Ba'ndy, (HI62'.) (c) The CollierOvedleadorUpright. (d) The Johnson. (e) The Weild Trough. (/) Tbe Weild Cylindri. cal. (g) 'The Moxon. (h) The Magnetic. I so find. J. A. S. "(82) Defendants have shown that s,aid motioDs a, b,o, d, e, f, g, and h of request No. 81 are equal or superior to the Davis or Duckworth motions, and of eqllalor superior advantage or usefulness in carpet manni'aeture. I do not so f i n d . ' J. A. S." "(87) Complainant has not shown any increase in the average amollntof c!'fPet wovenPllr)oom in the same time, due tothe use of the Wl'bster com.. binl\tion oftl)e5th claim, as compared with said wire motions a, b, c, d, e,ft g,andh of No. 81. I so ,lind. J. A.S. "(88) Defendants have shown that said motions a, b. 0, d. e,f, g,and h of request No. 81, upon looms old and well known in the art prior to date ot the Webster patent. and of the period of infringement herein, arll capable of running at as great and grpaterloom speed than the Dayis or Duckworth motions were run at, and of weaving more carpet per day per loom. I do not so find. S. " ,. Tbeanswersthrow no light upon the subject to 'which the questions relflte. Requests 82 and 88 were probably construed by the master to CB,1l for a 'finding of the' inferiority of tbe Davis or Duckworth motidns to each one of the specmeqi:motions, and his negative answer is there-
call
680 \ ..
.FEDERA;LR;EPORTER,
vol. 43..
fore cqnsistent with & .belief that thli,l)avis or Duckw6rth motions had to be inferior to one or more of the spElcified·llIotions. It is nevertheless true that the master-could, if he had chosen, have made' R:sVecific finding unde:r; question 82 in regard to the .J ohnson. or any other motion. II) re$ponse to the plaintiff's requests, he had' already indicated his opinion in regard to the state of the evidence upon the productive capacity of the Mo:::con and Magnetic I think that he'did not intend to. state his conclusfons in. regard to the Johnson motion';although he m,ay think that Hs superiority is proved, and therefore I prefer that he should state his own conclusions from his patient study and a.ccurate knowledge, of the evidence, rather th/l.ll that they shoUld be spelled out from theanswer/3 to the defendants' requests.
SCRIBNER BLAcK:'
et al. v.
ij:ENRY
G., ALLEN Co., ALLEN
et al.v.
HENRY
G.
Co.
(Oircuit,Court, S. D. NeW ct:oPtmGHT-FILING COPIIIS OJ!"
September 30, 1890.)
,.';!;
Rev·. St. U,S, §491i1S. allowing a person'seeking a copyright to deliver at the offioe of the librarian of the oQPY of the title of the b,o(,lk and the two copies 'of the: tOok which the statute require!l to be'dep9sited, and also permitting the depqsitof .lIuch oopiesin.,tibe mail, addressed to lIuch' librarian, does'notprevent both the delivery and mailing of the copies; and, where a complaint for infringement 3verlltbat both these sots were done, (lOIIlplainant will not be required to elect which averment he will undertake to prove at the trial, and to abandon the other. Distinguishing Falk,v. Howell. 37 ;Fed. Rep. 20'J. "t" '-,'
1':'.
.
..
-
,
J'
Motion to compel complainants to amend bill. 4,2 'fed: Rep. 618. ' Rowland Cox, for complainants. James A. Whitney, for·defendant. LACOMBE,
in Equity·. On billfOf injunction. '
For
report, see
tem. is the deposit in the proper government office of a printed copy of th!'l title, and also of two copies of the book or other article for which copyrightls. sought. It is made the duty of the person seeking it copyright to see to it that such deposits lire made.' The statute allows him to "deliver [such title and COpiell] at the office of the librarian of congress." 1t also nllowshim "to deposit [such title and copies] in the mail, addressed to the librarian of congress." One or other of these must be done, but there is nothing in the statute to prevent the author or proprietor from doing both. Section 4956. The bill of complainll.nts allege!! that intl1is case both were done. Defendant insists that tJ"lis fillsertion is so "improbable" and "incredible" that it may be assumedto bl'l false. Such a proposition is clearly unsound.' One, who MJ{ious,tobe in a position to prove,at anytiine,compliance with the
Circuit Judge.
feature
at the
copyright sys-