590
FEDERAL REPORTER.
sU9cessfully for that purpose; but the evidence shows that, prior to the invention, the supply of waxed paper was limited and expensiV'e, and imperfect in quality. It remained for Hammerschlag to devise a means or process of producing lin article superior in quality and finish to anything that had been previously produced, and in quantities which brought it within the reach of the public. His patand at ent has been sustained by the courts in a number of contested cases; and a proper regard for uniformity of decision, especially in litigation of this character, should incline other courts to hold the patent valid against the same, or substantially the same, defenses, until all controversy over its validity is put at rest by a decree of the supreme court of the United States.
LANDESMANN
v.
JONASSON
and others.
(Circuit Court, 8. D. New York. September 4, 1887.) PATENTS
In letters patent No. 296,021, of April!, 1884, to Jacob Landesmann, for an improvemeJ;lt in that class of ladies' cloaks known as" Russian Circulars, "the improvement consists in extending the inner front parts to the back seams, making a close fitting waist, and leaving the outer part loose and flowing. Held, that the improvement was not patentable, neither the tight-fitting garment nor the outside part being new, and the ordinary skill: of those practicing the artofcloak-me;king being adequate to put the nvo together. .
FOR
INVENTIONS-IMPROVEMENT IN CLOAKS-INVENTION.
In Equity. M. B. Philipp, for orator. Wm. A. Jeilner,for defendants. WHEELER, J; This suit is brought upon letters patent No. 296,021, dtlted Aprill, 1884; and granted to the orator for an improvement in that class6f ladies' cloaks known as "Russian Circulars," which consists in extending the inner front parts to the back seams, making a closefitting waist, and leaving the outer part loose and flowing. The defenses set up and relied upon are that this improvement does not constitute a patentable invention; and that, if it does, the orator was not the first into contem. ventor. The statute authorizing the grant of patents plate that the invention for which a patent may be granted must be out. side of the ordinary skill of those who practice the art to which the invention belongs. Rev. St. U. S. § 4888. There were among those practicing this art designers of styles for fashion, as well as for the comJort of the wearers, and makers to carry out the designs. There were cloaks with close-fitting waists before, as well as these on which the improvement was made with the flowing outer portions. What was accomplished, and what was claimed in the patent, was the putting of a tight waist into a Russian circular in place of the: former loose waist. This new style appears to have gone into extensive use for a time, and
UNITED STATES V. AMERICAN BELL TEL. CO.
591
was fashionable. After a while the fashion changed, and they went comparatively out of use. The question upon this part of the case appears to be whether this change made in this style of cloaks belonged to the genius of an inventor or to the skill and taste of a designer and maker. These cloaks were warmer, and more -convenient in some respects, than Russian circulars of the former styles; but apart from their style they do not appear to have had any superiority in comfort or convenience over other cloaks known and in use. This was new, and if -everything new was patentable this would be; but every new thing is not patentable. It must be new and useful, substantially. Rev. St. § 4886 i Atlantic Works v. Brady, 10,7 U. S.192, 2 Sup. Ct. Rep. 225; Slawson v. Grand Street R. 00., 107 U. S. 649, 2 Sup. Ct. Rep. 663; Hollister v. Benedict, 113 U. S. 59, 5Sup. Ct. Rep.717; Thomp8on v. B0i88elier, 114 U. S. 1,5 Sup. Ct. Rep. 1042; Gardner v. Herz, 118 U. S. 180, 6 Sup. Ct. Rep. 1027; Pomace Holder 00. v. FergUBO'll., 119 U. S. 335, 7 Sup. Ct. Rep. 382. If the designer of such cloaks thought that a close-fitting waist in a Russian circular would be desirable, the skill of a cloak-maker would readily devise one. The waist, when constructed according to the method {)f the patent, does not appear to be different from ordinary close-fitting waists. The tight-fitting garment was not new, and the outside part was not new, and the ordinary skill of those practicing the art of cloaklllaking would appear to be adeq.uate to putting them together. On much consideration, what the patent was granted foi: appears to fall with{)ut the domain of patentable invention. Upon this conclusion, and the authorities cited, the bill of complaint cannot be maintained. This re:sult makes the determination of the question oYpriority unnecessary. Let there be a decrei:l dismissing the bill of complaint, with costs.
UNITED
STATES,j.
AMERICAN
BELL TEL. Co. and others.l September 26,1887.)
(Oircuit Oourt"D. Ma8sachusetta.
PATENTS FOR INvENTIONS-'-CANCELLATION-POWER OF GENERAL GOVERNMENT.
In the absence of any specific statute, the United States cannot maintain a bill in equity to cancel a patent for an invention. Attorney General v. Ohemical Works, 2 Ban. & A. 298, post, 608, followed.
Bill in Equity by the United States, by direction of the gen-eral acting as attorney general against the American Bell Telephone Company and Alexander Graham Bell, to cancel letters patent of the United :States No. 174,465, dated March 7, 1876, and No. 186,787, dated Jan. uary 30, 1877, granted to Alexander Graham BeH, relating to the art of transmitting speech by electricity, on the ground that they were obtained by fraud. Defendants demurred to the bill generally and specially. I
Reported byE.C. Day, Esq., of the Editorial Staff oCtb.e National RepofWr