S3G
FEDERAL REPORTER.
harmony with the testimony, and the presumed intention of the ties, would be that of a partnership among the four associates themselves in the purchase, management, and disposition of this property; although no such relation is claimed by either party to this versy. Such a partnership may exist as to purchases of land, and be supported by parol testimony only; and even in regard to a partictllar transaction only, if such be the intention. Fairchild v. Fairchild, 64 N. Y. 471; Traphagen v. Bttrt, 67 N. Y. 30; Chester v. Dickerson, 54 N. Y. 1; Smith v. Danvers, 5 Sandf. 669. In that case, however, the property, for the purposes of the partnership, is deemed personalty, and on the death of one of the partners does not descend to his heirs in equity, but remains partnership assets in the hands of the surviving partners till the partnership is wound up; and, as personalty, in equity, it is not subject to dower. In either point of view, therefore, the husbands of the petitioners had no legal or equitable estate of inheritance in the premises as realty, and the register's report denying the petition should be affirmed.
MOFFITT
v. CAVANAGH. June 4, 1883.) Nos. 178,869 AND
(GirCltit Court, S. D. New PATENTS FOR INVEKTIOXS-LETTERS PATENT ERED.
209,826
CONSID-
Claims 5 and 6, in letters patcnt No. 178,869, dated Junc 20, 1876, fer an improvcd process for shaping a heel counter or stiffcner for beots and shoes, and for improvements in machinery for the man\lfactnre of counters. and claims I, 3, and 4, in letters patent No. 20!l,8:?6. dated Novcmber 12, 1878, for improved machinery for the same object, issued to John n. lHo!'itt, held valid, and thc unauthorized use of the improvcments thercin dcscribed by defendant restrained, and an account of profits ordered.
In Equity. Wm. A. Macleod and George Harding, for plaintiff. TVm. S. LC'"&is and Lucien Birdseye, for defendant. J. This is a bill in equity, based ufon the alleged infringement by the defendant of letters patent No. 178,869, dated June 20, 1876, and letters patent No. 209,826, dated November 12, 1878, each patent having been issued to the plaintiff as inventor. The first patent was for an improved process for shaping a heel counter or stiffener for boots and shoes, and for improvements in machinery for the manufacture of counters; the second patent was for improved machinery for the sJ.me object. · The defendant was on July 17, 1876, by the plaintiff to use two machines containing the improvements specified in No. 178,869. The license was revoked on August 7, 1878. In the spring of 1878 the plaintiff placed upon the machine the alleged improvements,
MOFFITT V. CAVANAGU.
837
specified in No. 209,826. The license provioed that affer a branch, not waived, of its conditions the machines should become infringing machines, and were not to be used. Since the revocation all the improvements have been used by the defendant against the will of the plaintiff. In the specification of No. 178,869 the patentee says: "My invention relates to the shaping of the connter from the hlank, and it consists primarily in using a douLle process for ell'ecting this, as will La lIIore fully explaiued hereinafter; the first prol:l'ss consisti ng in shapi ng it by means of a fonner moving upon an axis and suitaLle means for Iwlding the ulanl, up to the former, amI the second process consisting in moulding the couuter so formed over a male 1l10ulJ. of the desirell form. By this douLle process a counter is formed which suits the wants of the consumer much better than any other known to me. Another feature of my in veution consists in llattening down the flange by means of a pressnre-surface. which moves in the arc of a circle, the part which supports the thlnge of the counter under the action of this pressure-surface fonned with a surrace which is curvell to correspond. Another feature of my invention consists in heating the surface of the blank when it is formeJ. up upon the former, by friction, in order to set the curves formed in the blank. AmI still another feature relates to the appar<ltus used in practicing my invention, and consists in ci'rtain combinations of parts, hereinafter more fully described. * * * Heretofore counters Inn-e bpen made for the market either by forming them over a male mouhl,-the process being the same in principle as the second lJranch of my improved process, and the apparatus the same in principle as my moult!, e. amI the means described for fanning the counter over it.-or else by means of a former and suitable means to hold the blank up to the former.-this process being the same in principle as the first branch of my improved prol-ess, alld practiced with an apparatus the same in principle as my form, a presser-roll, b. or presser-surface. d; but all counters made uy the tirst of these processes were objectionable, in that the material could not, by this process, be practically curved. as is necessary in the best eounters, while all the conntersmade by the latter process, by which process the main cnrves de,;irpd could be very etTIciently given to the baek portion of the counter.-t1mt is. the curves from top to bottom. and the curves at right an!{les to the curves from top to bottom at the back part of the counter,-yet other portions of the counter were necessarily curved in the same way. which is objectionahle, e\'en in cheap work, and almost wholly prevents the use of such counters in several large classes of shoes. 13y my improved process the curves at the hack portion of the counter are properly formed. and yet the otller pOI'tiollS of tlle COUllttJf an, urought to the exact form desired."
The claims are as follows: .. (1) The improved process of shaping- counters. ahove (lesl'riheiJ, consisting in first giving the proper curves by a revolving fOrlner. suustantially as described, and afterwards giving the exact shape hy forming the connter o\'er a male mould. all as set forth. (2) The male mOIlI.l. e. formell with its sole-surface curved. as described, in combination with a PI'essure-surface arrangptI to move over it in the arc of a circle. alld t1H'rehy form the bottom of a eoullter on a curve, all as set forth. (3) The lII()lle of giving' a more permanent set to the curves by running- the presser-roll. b. at a g-reater sppefl than the fornlPr, a. as and for the purpose deseriberl. (4 In I'oillhillation with the male moultl. e, the heads. A and 13. (5) The guide. C. ill cowLJiuatiull with tlle male llluuhl,
v.17,noA-22
338
FEDERAL
REPORTER.
e, and for shaping the counter over that mould, sulJstantially as described. (6) The nee Ie, k, in combination with the male mould, e, and mechanism for operating the needle, as described."
On February 24, 1874, letters patent No. 147,906 were issued to Louis Cote for a machine for performing the first part of this double process. Reissued letters patent No. 7,356 were issued to Cote on October 24, 1876. Moffitt obtained a patent, No. 127,090, dated May 21, 1872, for a machine for performing the first part of the process, which patent was reissued to him on December 8, 1874, said reissue being No. 6,162. 'rhe first part of the machine, described in No. 178,869, is the same in its general principles as that described in No. 6,162, except in one particular, which relates to the speeded roll mentioned in the third claim. Three suits have been tried in the circuit court for the district of Massachusetts upon these two reissues and No. 178,869. On April 23, 1879, Judge LOWELL decided, in a suit of v. Rogers, who were the licensees of the Cote patent, that reissue 7,356 was not an of reissue 6,162. Thiadecision has been affirmed by the supreme court, which held that the Cote machine did not infringe the original patent or invention of Moffitt, and that his reissue was unduly enlarged. Moffitt v. Rogers, 106 U. S. 423; [So C. 1 Sup. .Ct. Rep. 70.] On July 2, 1881, in a suit of Moffitt v. Rogers, Judge LOWELL de. cided that the first claim of No. 178,809, and the only claim in con· troversy in that. suit, was invalid, upon the ground that the double process was not patentable. 8 FED. REP. 147. On the same day, in a suit of Cote v. MqtJitt, 8 FED. REP. 152, Judge LOWELL decided that the reissued Cote patent, No. 7,356, was infringed by machines constructed under patent No. 178,869. For the same reasons which are stated by Judge LOWELL in l.foffitt v. Rogers, 8 FED. 147, I am of opinion that the first claim of No. 178,869 is invalid·. In view of the Simonds and Emery machine, wherein the flangeforming apparatus was moved in a straight line and the heel-seat was formed straight, there is nothing patentable in moving the flangeforming apparatus in the arc of a circle and thereby making the tread curved. There does not seem to have been any practical advantage in having the heel-seat somewhat curved. 'rhe second claim is, there· fore, held to be invalid. Much testimony was given by the defendant to show that the run· ning of the presser-roll at a greater speed than that of the former was useless. It was proved that the presence of the speeded roll was not important, and the validity of the third claim was not insisted .upon by the plaintiff. :: . The . Sa):8 in his specification that "heretofore counters nave beeu !liade for the market either 'by forming them over a mala
v.
CAVANAGH. I
process being the same in principle the sec·ond branch of, my improved process, and the apparatus the same in principle as; my mould, e, and the means describerl for forming the counter over it,. -or else," etc. In view of this concession, and of the testimony of' the plaintiff's expert in Emery v. Cavilllagh, which was stipulated into this case, I do not think that the heads, A and B, were a· patentable improvement upon the pre-existing mechanism, shown in the Simonds· and Emery patent, for forming the counters over the mould. Claims 5 and 6 contain novel and patentable inventions. . The pi:incipal feature of No. 209,826 consists in fluting the edge of the counter-former and causing the fluted edge to mesh into the teeth of a gear, so that the edge of the blank which is to form the flange may be fluted or corrugated. The object of these corrugations is to enable the flange to be more easily and evenly turned. Another· change consisted in dividing the presser, d, of patent No. 178,869 into two "auxiliary supports, D, D'." . The claims are as follows: I
"(1) The improved counter-former, A, grooved or flutc!} arounc! its flange end, substantially as described. (2) In combination, the revolving COlluterformer, A, presser, C, and auxiliary supports, D, D', arranged together, as described, the parts, C, D, D', being so formed that each will act upon ouly a small portion of the blank in lines crosswise of the lJlank and close together, in order that only a srriall portion oithe blank may be acted upon at any given time. (3) In combination, the fluted counter·formcr. A, gear, B, and presser, C, all SUbstantially as described.. (4) In combination, the fluted counterformer, A, gear, B, presser, C, and supports, D, D', all substantially as described."
. The fluted counter-former has no utility unless it meshes into a corresponding roller or gear, or mechanism of some sort. The defendant therefore insists that the first claim is void; but the specification makes it apparent that this claim should be construed to mean a counter-former fluted and meshed, as shown, with the gear, B, or with a roller or other equivalent device. The gear, B, or a fluted roller must be implied in the claim, for it is manifest from the specification that the mesbing of a fluted former with a gear or roller was the invention. ' . The third and fOUJ:th claims· are for the combination of the fluted former with the mechanism, by which it is made available.'. The new former and the gear are for the same purpose, and operate· apparently in the same way as the rollers, l, 0, of the James Hatch·' patent of February 15, 1876, which corrugate the blank befOre it is projected upon the former. I cannot see that the mere, change of . location is of any iniportance or presents a patentable improvement. But the change of location may have required the employment of new devices or of invcIltive skill to enable· the two cori'ugatingrollers toopei'ate in thellew .location, and thus to enable the :Moffitt. ma- ; chine to accomplish a beneficial'result which; it 'could plish: before; and 'tibus :this location,' In :connection,·wi-fh Buch 'new';
340
devices," will be patentable. lJIarsh v. Dodge J; Stevenson Manuj'g Co. 6 Fisher, 563. I cannot say, without any evidence on the subject, that, corrugrting the blank by means of a fluted counter·former and a gear, instead of by rollers, before the blank was projected npon the former, did not require such a change and alteration of the mechanism as to amount to a new device, or was nothing more than a mechanical change. This question involves questions of fact upon which no testimony was presented, and therefore the presumption from the grant of the patent remains nn,;.istlll'bl.:d. 'rhe first, third, and fourth claims are, therefore, held to be valid. 'rhe second claim is for the revolvin,6 connter-former, fluted or not flnted, presser, and 'Lllxilial'y supports. 'rhis is substantially the mocha ,ism of tbe finlt part of No. 178,869. Let there be a dec for lln injunction against the infringement of claims 5 and 6, of P'1t 'fit j·o. 17.s,8v9, and chl.ims 1,3, and 4, of No. 209,826, and for an accvuu-illg.
UNITED
NI ,KEL CO. v.
MELCHIOR.
(Circuit Com'f, N. D. Illinois.
July 10, 1883.)
Fon INvEN'rroNs-EI.EcTno-DEPoSITION OF NICKEL-PATEXTS Nos. 93,;,157 AXD 102,748 SUBL'AIXE Letters patent No. 93,157, ;va ltell to Isaac Adams, Jr., August 3,1869, fo'!' nn "improvemc'nt In the electrn-deplsitioll of nickel," and letter., patent No. 102,74S. granted to ls:mJ Adams, .Jr, May 10, 18 iO, for an" improvement in 1 he electro-deposition of n·ckcl." sustained; and thc first llnd fourth claims of patent No. and both of the cIa m" of patent No. 102,74S, heed infoinged by the solulions u:;ud by defenda.1t, anll a deClee to that eiIect entered.
In Equity. CobuTit d': Tlurchcr, for complainants. West J; Bond, for defendants. BLODGETT, J. This is a bill for injllllction and accounting by reason of the alleged infringement of lEtters patent No. 93,157, gt'anted to Isaac Adams, Jr., Augnst 3, 1869, for an "improvement in the electro-deposition of niclwl," Rnd letters patent No. 102,748, granted to Isaac Adams, Jr., JIl1Y 10, 1870, for an "improvement iu the electro-deposition of nickel." These patents have been so frequently before tue United St tes courts in other circuits, and been so fully discussed and const.rued, and have been so uniformly sustained, in the face of exlJaustive research into the history of the art, and critical analysis of their terms and scope, that little, if anything, more can be said as to the novelty of the invention, or the construction to be given the patents. Ullited Nickel Co. v. Anthes, 1 Holmes, 155;