186
FEDERAL REPORTER,
vol. 43.
ing oOetters with those words on the outside to a person would lead to the inference that the character,or conduct, or both, of the person sent to, in respect to the fulfillment of pecuniary obligations, was such as to make the sending necessary or justifiable, unless they should be so restricted by ('onnection with other words as to show that they were used for directions to return if not called for, or other legitimate purpose, not referring to the person addressed. The manner of display might indicate clearly whether the words were placed there for injurious reflection upon that person, or for legitimate transmission of the contents of the envelope through the mails. The indictment shows that the manner of this display indicated intended reflection. The indictment, therefore, appears· to be sufficient. Whether the display of the words upon the envelope would support the averments of the indictment would be a question of fact for a jury. 'rhe respondent's counsel and Ule district attorney have submitted a sample envelope printed like the one in question, upon a suggestion that if, in the opinion of the court, it would warrant a verdict of guilty, the respondent would plead guilty in answering over upon the overruling of the demurrer, although he was ignorant of the statute, and innocent 'of all intention to violate any law. Upon this sample the words {'Excelsior Collection Agency" are printed in very large full-faced capitalletters, which occupy more than the upper half of the envelope; are separate from directions to return to the respondent if not called for, in the lower left-hand corner; and were obviously placl'ld there to attract attention, and reflect delinquency in making payments upon the person sent to. The object probably was to make the person pay up to avoid repetition of the reflection. The depositing of mail matter for delivery with such wbrds so displayed upon the envelope would seem clearly to constitute an offense within the act of 1888, which appears to be aimed at all use injurious to the feelings of others of the outside of mail matter. Demurrer overruled, the respondent to answer over.
seeing this envelope addressed to a person as mail matter. The send-
DORTREE
et al. v.
JACKSON.
(Circuit Court, N. D. Ohio. July 18, 1890.)
1.
PATENTS FOR INVENTIONS-INl'RINGEMENT.
t.
The claim in letters patent No. 869,979, issued to Lewis S. Bortree September 18, 1887, for "a bustle having ooil spl"ings arranged longitudinally thereof, coil springs arrl;lnged centrally and at right angles thereto, and means for holding the same to any desired adjustment," having for its object to provide for giving' a greater or less amount of fullness in the direction of its length, by contracting or letting out the upper or lower central coil, so arranged at right angles, by means of a cord and looP/ is not infringed by a bustle having' similar longitudinal and central coils, but mcapable of, and not designed to give, such adjustability. Such device does not infringe the third claim in such letters for "a bustle comprising a series of coil springs extending in the direction of its lenitk, coil
SAME.
·nORTREE
v,
137
IIprlngs at right arigles thereto, with means for bolding the same to any detired expansion or contraction, the whole covered with a suitable fabric, as and for the purpose set forth," since under the last clause the claim will be construed with reference to the purpose previously set forth.
This is a bill in equity to recover damages for the infringement of letters patent No. 369,979· .issued September 13. 1887, to the plaintiff Lewis S. Bortree for a bustle. In his specifications the patentee states that" his invention relates to an adjustable bustle, having for its object to provide for giving a greater or less amount of f:ullness to any portion of the same in the di1'ection oj its length." This objeptwas attained by the use of a series of longitudinal coil springs laid parnIlel to each other, with three in front, and one on each side thereof, bearing upon the two outer front coils; thus leaving an intermedillte space in the center of the inner side of the bustle occupied by a single coil. In this central inner space are arranged two or more horizontal coil springs at right angles to the others, and of a length, when in, normal condition, to protrude for some distance beyond the outer periphery of the, coils at each side, and are adapted to be contracted to the diameter of the longitudinal coils. Strings werenttached to the bustle parallel with the horizontal coils, and threaded through eyelets or loops formed at the outer ends of the springs, and adapted to hold the same in their contracted condition. By contracting or pressing upon the upper ,horizontal spring., allowing the lower spring to be extended, the skirt of the dress is thrpwn out some distance below the waist, while if the lower spring be contracted, and the upper one relaxed, the skirt is thrown immediately below the waist. This feature of adjustability is what the patentee intended. by his words, "to pl'Ovide for giving greater or less amount of fullness to any portion of the same in the direction of its length." .The claims alleged to be infrin!!ed were the second and third, which read as follows: "(2) A bustle haVing coil springs longitudinally thereof, coil centrally and at right angles thereto, and means for bolding the same to any desired adjustment, as set ·forth. e, (3) As an article of manufacture, a bustle comprising a series of coli springs extending in the direction of its length. coil spring8 at right angles thereto. with means for holding the sauie to any desired expansion or contraotion, tbe whole covered with any suitable fabric, as and for the purpose set forth." The defenses were want ofnovelty and non-infringement. It is conceded that claim. 1 is not infringed. L. L. Leggett, for plaintiffs. Almon RaU, for defendant. BROWN, J. The invention in this case is a very narrow one; and, in view of the state of the art, we think the patent should receive a strict construction. ' Weare clear in our opinion that there is no infringernent of the second claim, which is fot a bustle having coil springs arranged longitudinally, coil springs arranged centrally, and at right angles thereto,
"YjtP,. holding the same to any desired adjustment. While the 'defendant· uses coil springs arranged longitudinally,anli.also coil springs to the!le, they are' not arranged centrally, at right angles to the central longitudinal coilj but there are three such springs arranged the'tthree longitudinal springs,' which .latter are curved lttthat.p6int are pra(ltically parallel with the horizontal springs. They, therefore, do' not accomplish the object sought to be obtained by the patent; of or lessaatount of fullness to direction ofitslehgth. Defendant's horizontal springs are, evidently intended to be contracted or relaxed together. Hone or two were contracted, and the third were relaxed, the skirt would be extended, not in the direction of itt!i length, but in'that of its breadth, and ,would inevitably. have a one-sided appearance.' . lUbe ,tbird claim were construed ·s.-ccording to 'its exaCt language, 'and 'Without .referenoetothespecificatibns, the' defendant's. bustle would infriogei since he, has '8. fseries of coil' springs at right angles thereto, with ,means for, holding the. sanie to any desired expansion or contraction, and substantially' the 'whole ooveredwith a'suitableJabric. : We were at first inclined to,give' it thisconstructionj but,upon reflection, we are satisfied that, having :reference to the words' "o:s and for the purpose set forth, " at theepd! oj this claim,' we are bound to construe it ill connection with the and in view of the object declared by'the patentee, If-to ;pl'Qride eforgiving greater or less: amount offullness to the bustle in the: direction of its length." In discussing the effector the words"subslantially,as described," or "substantially as setifoI'th," it is said in SeymoUr .,.j 'Osbmme, 11 Wall. 516, 'flWhere theiclaim hnmet!ltiltelyfono\Y8 the descrtptionof the invention,it may be CQnstrued in connection with the explanations contained in the specificatl!>ps it contains the wordS referring back to the specifications, it cannot properly be construed in any other way." So, in TM:C-orn-Planter Patent, 23 Wall. 181,218, it is said that the words '" substantially as and for the purpose set forth' throW' us back ,to the specifieations for' a. qualification of the claiJIl, and the several' clemente of which the 'combination is composed'." See; also, Matthews v. Shonebcrgcr, 4, Fed. Rep. 635'j,"Weitinghottse v·. Air-BrakeCo.2 Ban,'& ·:A;55. 57. In the lighfof authorities, we think the third claim should declaredobject of the patentee, that it-should recewe substanti(llly. the sall1,econstructioD as the seeand claim, with the addi,tionof the covering of. a fabric. This seems. also, to have I the views of the leaJ;'nedcounsel for the plaintiffs, as stated in his brief. Now, as the defendant's bustle is not designed to seC1,1re adjustability in the direction of its length, and as he has not arranged his horizontal central, longi coil ,in such a. way as to make it pOSsIble ,this result,.we thinktha.t be cannot be held. to irifringe.' '11pon maturf;l consideratiQ/l.,.of this ,Cllse, we have come to the the bill ought to dif!IDissed· .' ., .. ,.'. :. ., .. .'
and
',"
'
"
".
..;
.
K'EVILLi". BALL
&;
'SHELVINLUMBER CO.
139
McEVTI,LA 'V. HALL
&
SHELVIN LUMBER
Co.
(OirCU'£t Oourt, D. Minnesota. August 27, 1890.) PATENTS POR INVENTIONB-ANTIOIPATION-SAW-MILLS.
Letters patent No. 377,630, issued February 7, 1888, to Henry McEvllla, for 1m provement in reciprocating saw-mills, consisting in the combination with the feed mechanism and diViding shaft, of upper and ,lower slides carrying the saw-gate, such 'lower slides having the pins on which they oscillate located below the top of the slides, were anticipated by letters patent No. Hi6,193, issued October 20, 1&74, for an invention exactly the same except as to the location of said pins.
In Equity. P. H. Gunc1cel, for complainant. Paul & Merwin, fOf deftlDdant. NELSON, J. A suit is brought in equity for an infringement ofletters patent No. 377,630, granted February 7, 1888, to I;Ienry McEvilla, for improvement in reciprocating saw-mills. The alleged infringement is confined to the first claim of the patent. The defenses are anticipation and, non-infringeJ;Ilent. The first claim is as follows: . "In combination with the feed mechanism. and the dividing shaft ofthesRWmill gang, upper arid lower slides ('arrying the saw gate or (rameand me.cbanism suhstantJally 8.uch as shown for oscillating thp lower slides connected witb and driven by tIll} main driVing shaft, said lower slides having the on the top of the slides aM above the pin 'on' which they oscillate the lower girder of the gate when the latter is at the upper limit of its stroke. wherebythe saws are ,made to recede from the log at the start, and thus the cut at, the first quarter of the stroke equalized with the cut during the stroke. as specified," In the specification, it is said: '''fhe inventton may therefore be said to consist in so thA lower slides. upon which the saw or saws fE>ciprocate in a gang or other reciprocating saw-mill. that the pins upon which they oscillate shall be in such a position relatively to the pins the lower entI of the gate orsaw a, to equalizethe cntduring the first quarter of the down stroke with the other three parts of the silme, and free the saw or saws completely during the up and. fluther, to the devices 'employed for'changing the position of the upper slides to give the rake correspondiug with the rake of feed given to the log or cant, " etc. The purpose of the invention is to overcome the continually speed of a saw driven by a crank having ,a uniform rate of revolution by IDeanS which will so regqlate the movements of the saw as to fullyequalize the cut in the down stroke, and giveeffectivedearanca upon the up stroke, so that the teeth shall each perform its proper part of the work in the down stroke, and he kept away from the front of the cut'during the up stroke. The changing speed ofa saw increasing and decreasi'ng is due to the pitman or such other to connect the crank with thineciprocating body. Tbe location of the pins on .which thEdower slide oscillates below the top of the slide and above the pins on the lower girder of the gate wbenit.isat its extreme uppertravelequalizEisthe:ctit,