398 THE UNION
FEDERLL REPORTER.
MACHINE CO. 'V. THE ATLAS BAG
Co.-
(Circuit Court, E. D. Pennsytvania. February 7, 1881.)
1.
PATENT-VALIDITY OF-ANTICIPATION.
Claims 2 and 5 of re-issued patent No. 6,050, forimprovemcnt in tools for the manufacture' of paper bags, held to have been anticIpated by a.device in use two years before the original patent. PRIOR DEVICE OF <mE OF "OF INCORPORATING IT
2.
Two
JOINT PATENTEES -
EFFECT
i:N JOINT INVENTION. That such prior device .may have been the invention of one of the two joint patentees is immaterial, since it is not thei!; joint invention; and 'embracing it in their patent gives them no right to its exclusive use, except. in the particular combinatio'U described in such patent.
Bin in equity on accOlmt of an alleged infringement of reiss)loo let,ters patent No. 6,050, for improvement in tools for the manufacture,of paper bags. The patent was originally issued to EdwinJ. Howlett ,and Susan ;f¥L Kirk, and was reo. issued to Edwin J. Howlett, as assignee. ' The answer denied that the re-issue was for the same invention that was described in the original patent, ·or that Howlett was a joint inventor, and alleged anticipation of the devices therein contained. J. B. Bennett and Georg8 Harding., for complainant. P. K. Erdman, F. A. Leh11!ann, and J. J. Combs, for respondent. BUTLER, D,: J., Clait:r;ls 2 and 5 of the plaintiff's patent, devices. The blade B, and are, very clearly, for the plat,e for separate, independent use. When the former is rE)moved, as. contemplated to be when not in use, the latter supplies its place, and performs its office. Both cannot be used at the same time. Paragraph 14 of the specifications, and the testimony of the experts on each side, as well as an examination of the plaintiff's drawings and model, show that one of these devices is the mere equivalent of the other. The complaint, as exhibited by the testimony, and urged by counsel, is that the defendants have infringed the fifth claim. It goes no further. Il'l{cported by Frank P. Prichard, Esq., of thc Philadelphia bar.
UNION PAPER BAG MAOHINE CO.V.ATLAS BAG CO.
399
Whether the introduction of this claim into the re-issue of the patent, where it is firstfaund,was improper, need not be considered. From what has been said it is plain that whatever would constitute an of this claim, would also be an infringelllent of the second; and that whatevex, would anticipate the latter, would also anticipate the forJ1ler.; The proofs show, quite satisfactorily, that a device to facilitate the manufacture of paper bags, substantially,identical in construction, form and manner of use, with that described by the plaintiff's second claim, and consequently the exact equivalent of that described in the fifth, was constructed and used, more than two years prior to the application for the Howlett and Kirk patent, and nearly as long before the invention, described therein, was made. This feature 6f tneir combior toolas they denominate it, not, new. That it may have been invented by Miss Kirk, is unimportant. Granting it to have been, it follows that it was not the joint invention of the patentees. Embracing it in their patentj did not, therefore, confer upon them a right to its exclusive use, except in: tIre particular cbm"hinat:ion :tharein de.. It is not even clear that the invention was)hriginill with Miss Kirk; 'and if it was, it is not clear that the use which she permitted to be made of it, would not have fotfeited the right to a patent even iuher own name, at the time the patent here involved, was applied for. As this view Of the case disposes of it, an examination of other questionsprel. sentedby the defence, is 'unnecessary. The bill must therefore be dismissed. A decree will be entered accordingly, with costs.
,.l
'.,
400
FEDERAL REPORTER.
THE BERERA.-
fDisfirict Oowrt, E. D. PennsyZfJania.
March 11, 1881.)
L
ADMIRALTY-CRUBHING OF BARGB IN DOCK BETWEEN TWO STEAM8HIP.S-LISTING OF STEAM-SHIP AGROUND WITH FALL OF TIDEBURDEN, OF PnOOF.
A barge was forced into a clock at high water between two steamships. Upon the fall of the tide one of the steam-ships listed over towards the other, and the barge was crushed between them. The -testimony showed that the movement of the steam-ship was caused by the fact that she was aground, and consequently, upon the fall of the tide, listed over towards the other, and that this could not have been prevented by any care on the part of those in charge of her. Held, that it was probable from the testimony that the barge 'was guilty of.imprudence in entering the dock, but that, admitting the proprie,ty of her doing so, she could not recover, since the evidence failed to show that the accident could have been prevented by those in cllr:rge of the ,steam-ship.
Libel by James Ward against the steam-ship Behera to recover aaJ?1ages for injuries to libellant's barge. The facts were as follows: The iron steam-ship Behera, 248 feet long and 34 feet 8 inches beam, having on board 1,750 tons of old rails, and drawing 22 feet aft and 20 feet forward, went into the dock at pier 39, Delaware river, Philadelphia, on June 7, 1880. On the opposite side of the dock, which was 85 feet wide, the Matthew Curtis, an iron steam-ship, 290 feet long, 33 to 35 feet beam, was lying, empty. On the same day libellant's barge arrived off pier 89 with coal for the Curtis. At 1 o'clock on the next day, at high water, the barge was pushed in between the steam-ships, and commenced unloading its cargo into the Curtis. There was so little space in the dock that it was with some difficulty that the barge was forced in. When the tide fell the barge became jammed between the two steam-ships and was crushed. Libellant alleged that when the barge was pushed into the space between the steam-ships the Behera was afloat and yielded to the pressure; that her mate offered a line to the barge, and promised to breast the steam-ship nearer to the wharf; *Reported by Frank P. Prichard, Esq., of the Philadelphia bar.