is not the exercise of the authority of Congress to levy duties, imposts, and excises; but we find no ground for holding that the authority of Congress does not go the full extent of the legislative act in question. To receive or conceal opium after it is imported, and with knowledge of its illegal importation, is in effect to participate in the illegal importation. It is an act which encourages, induces, and supplements the act of the illegal importer. This is what the plaintiff in error did. Opium was found in his possession, and he knew that it had been imported contrary to law. In a similar case, Judge McPherson said that:

"The offender's possession of such opium within the territory of the United States his possession of it elsewhere is not now in question—is sufficient evidence of guilt to justify a jury in convicting." United States v. Caminata (D. C.) 194 Fed. 903.

The act of February 9, 1909, is similar in its general provisions to section 3082 of the Revised Statutes (Comp. St. 1913, § 5785), which provides that one who "shall fraudulently or knowingly ceive, conceal," etc., "merchandise, contrary to law,

* * re

* know

ing the same to have been imported contrary to law, shall be" subject to fine, etc. Under that law it has been held that, where a defendant was found in possession of smuggled goods, it was incumbent upon him to explain his possession to the satisfaction of the jury, and that otherwise he would be found guilty. United States v. Fraser (C. C.) 42 Fed. 140; Reagan v. United States, 157 U. S. 301, 15 Sup. Ct. 610, 39 L. Ed. 709. In the case last cited, Reagan was found guilty of receiving into his possession and concealing 40 head of cattle, which had been smuggled into the United States fraudulently and knowingly and with intent to defraud the United States. Those cases are analogous to the case at bar, and the principle involved is the same.

The case is distinguishable from United States v. Gould, 25 Fed. Cas. 1375, and Keller v. United States, 213 U. S. 138, 29 Sup. Ct. 470, 53 L. Ed. 737, 16 Ann. Cas. 1066, cited by the plaintiff in error. In the first of those cases the indictment did not allege that the defendant held the slave knowing her to have been unlawfully imported, and although in the Keller Case it was held that the portion of Act February 20, 1907, c. 1134, § 3, 34 Stat. 898 (Comp. St. 1913, § 4247), which makes it a felony to harbor alien prostitutes, was unconstitutional as to one who harbored such a person without knowledge of her alienage or her unlawful coming into the United States, on the ground that such a regulation was matter within the police power reserved to the state, the distinction to be observed between that case and this is the fact that the harboring which was forbidden by law had nothing to do with the unlawful importation, was entirely dissociated therefrom, and was purely a regulation as to dealings by persons who, in the matter involved, were subject only to state regulation. The plaintiff in error cites, also, Hipolite Egg Co. v. United States, 220 U. S. 45, 31 Sup. Ct. 364, 55 L. Ed. 364, Savage v. Jones, 225 U. S. 501, 32 Sup. Ct. 715, 56 L. Ed. 1182, and Zakonaite v. Wolf, 226 U. S. 272, 33 Sup. Ct. 31, 57 L. Ed. 218; but we find nothing decided therein that is pertinent to the case at bar.

The judgment is affirmed.

(219 Fed. 887)

ZITTLOSEN MFG. CO. v. BOSS.

(Circuit Court of Appeals, Eighth Circuit. October 12, 1914.)

No. 4191.

1. PATENTS 177-CONSTRUCTION-GENERAL AND SPECIFIC CLAIMS. When a patent contains a general claim for a combination of certain mechanical elements and a specific claim for a combination of a specified form, composition, or construction of one of those elements with the other elements of the general claim, the legal presumption is that the two claims secure different combinations, and the general claim is not limited to the specified form, composition, or construction claimed in the specific claim, but protects the element and its mechanical equivalents, though in form, composition, or construction differing from that of the specific claim.

[Ed. Note. For other cases, see Patents, Cent. Dig. §§ 253, 254; Dec. Dig. 177.] 2. PATENTS

235-INFRINGEMENT CHANGE OF FORM OR COMPOSITION. Mere changes of the form or composition of a device, or of some of the mechanical elements of a combination, will not avoid infringement, where the principle or mode of operation of the patented improvement or combination is adopted, unless the form or composition is the distinguishing characteristic of the invention.

[Ed. Note. For other cases, see Patents, Cent. Dig. § 371; Dec. Dig. 235.]

3. PATENTS

328-ANTICIPATION-GRASS COLLECTOR FOR LAWN MOWERS. The Boss patent, No. 1,039,355, for a grass collector for lawn mowers, is void for anticipation by patent No. 701,255, claim 2, to the same patentee.

4. TRADE-MARKS AND TRADE-NAMES 71-UNFAIR COMPETITION-RIGHT TO PROTECTION.

While a geographical or descriptive name may not be exclusively appropriated as a trade-mark, yet a manufacturer, having adopted such a name as a designation for his goods, is entitled to be protected therein as against unfair competition.

[Ed. Note. For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 82; Dec. Dig. 71.]

5. TRADE-MARKS AND TRADE-NAMES 71-UNFAIR COMPETITION.

Where complainant had extensively advertised and built up an extensive trade in its grass catchers for lawn mowers under the name of "Easy Emptying," the use of such designation by defendant in its catalogues and circulars for a different device, whereby purchasers were misled. held unfair competition, which entitled complainant to an injunction.

[Ed. Note. For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 82; Dec. Dig. 71.

Unfair competition in use of trade-mark or trade-name, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]

Appeal from the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.

Suit in equity by William Boss, doing business as the Specialty Manufacturing Company, against the Zittlosen Manufacturing Company. Decree for complainant, and defendant appeals. Modified.

Howard G. Cook, of St. Louis, Mo. (James E. Garstang, of St. Louis, Mo., on the brief), for appellant.

Frank A. Whiteley, of Minneapolis, Minn., for appellee.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Before SANBORN and SMITH, Circuit Judges, and TRIEBER, District Judge.

TRIEBER, District Judge. The appellee, plaintiff below, instituted this action to enjoin the appellant, defendant in the court below, from infringing his letters patent No. 701,255, issued May 27, 1902, No. 829,943, issued September 4, 1906, and No. 1,039,355, issued September 24, 1912, for improvements in grass catchers for lawn mowers, and also unfair competition of the trade-name "Easy Emptying."

The defendant, in its answer, denied that the plaintiff was the first original and sole inventor of the devices set forth in the letters patent, and that they had not been in public use in the United States for more than two years prior to the plaintiff's application for said letters patent. It then sets up a large number of patents previously granted, which it is claimed anticipated plaintiff's devices. It also pleads that said devices were not patentable, and the letters patent therefor are therefore void. It denies that the grass-catching devices made and sold by it were like or similar in kind to those set forth in plaintiff's letters patent, and therefore denies that it has infringed them. It denies that plaintiff ever adopted the use of the words "Easy Emptying" as a trademark for grass-catching devices for lawn mowers, or ever acquired any trade-mark valid in law in and to said words. It admits that it used the descriptive words "Easy Emptying" in its catalogues, circulars, and leaflets in connection with grass-catching devices, but only in connection with its corporate name and place of business clearly printed thereon, not only on the cover page, but on each and every page of said catalogues, circulars, pamphlets, and leaflets. It denies that it ever used the words "Easy Emptying" on grass-catching devices of its manufacture, and only used them in a descriptive sense; denies that their use under the circumstances stated has confused the purchasing public in the exercise of ordinary care, or persons who bought its devices, with those of plaintiff's manufacture, or that the public has in any wise been deceived or defrauded into purchasing its devices as and for those of plaintiff's manufacture. It also claims that the words "Easy Emptying" are not susceptible of exclusive appropriation as a trade-mark for grass-collecting devices, as they are wholly descriptive.

After a hearing the District Court adjudged all of the patents valid (of patent No. 1,039,355, claims 1, 2, and 4), and also found that the defendant had been guilty of unfair competition in its use of the descriptive words "Easy Emptying" in connection with the grass catchers for lawn mowers sold by it. An injunction was granted and a reference made for an accounting of the defendant's profits. The appeal is only to so much of the decree as relates to the findings of infringement of letters patent No. 1,039,355, and unfair competition in the use of the words "Easy Emptying." The validity of the other letters patent is conceded.

The devices of patent No. 1,039,355 are a grass-catching receptacle, removable or detachable from the lawn mower, having an upper and forward wire frame or structure with a metal bottom, and a handle secured to the upper wire frame in such a manner that it is connected at the sides and rear of such frame in substantially the same plane.

therewith, which facilitates the nesting of several catchers, which, being supplied with canvas walls, are collapsible. A swinging wire hook is fastened to the center rear portion of the upper wire frame between the space portion of the handle at its rear connection with said frame, which hook is adapted to be hooked over the handle of the mower to support the rear end of the catcher when it is carried by the mower. When the catcher is filled with grass clippings, the operator releases the swinging wire hook from the mower handle, grasps the catcher handle with his hand, detaches the forward hooks from the brackets on the mower frame, carries the catcher by its handle to some selected place of discharge, and there empties the contents by dumping the same by means of the handle, after which he returns the catcher to the mower by engaging the forward hooks with the brackets on the mower frame and re-engaging the rear swinging wire hook over the mower handle.

The claims of plaintiff in his application, upon which the patent was finally granted, were as follows:

"1. The combination, with the lawn mower and its handle bar, of a grass receptacle removably supported at its front end upon a lawn mower, a handle for the receptacle consisting of wire portions formed with terminal hooks at its extreme ends having engagement respectively with the sides and rear of the receptacle and intermediately brought together to form a hand grip and a hook having swing support on the rear of the receptacle alongside the rear hook of the handle portion and detachably engaging the mower handle.

"2. In combination with the lawn mower and handle, a grass-catching receptacle having means at its front ends for detachably engaging with said lawn mower frame, a handle 13 extending from the rear of said lawn mower receptacle to the opposite sides thereof and having separated portions at its point of attachment to the rear side of said receptacle, and an arm having swing support upon said receptacle between said separated portions, for the purpose set forth."

Claim No. 3 is not inserted, as the court granted the injunction only for infringement of claims 1, 2, and 4.

"4. The combination, with a lawn mower and its handle bar, of a grass receptacle detachably supported at its front end upon the lawn mower, a handle for the receptacle consisting of wire portions centrally twisted together, the forward portions diverging forwardly and being formed with terminal hooks engaging the sides of the receptacle, and the rear portions being spaced apart and secured over the top member of the receptacle frame at the rear, and an arm having swing support upon the top member of the receptacle between the spaced wire portions and detachably engaging the handle bar of the mower."

The finding of infringement of the patent is not questioned by the defendant, its validity only being attacked. There are many patents which it is claimed anticipate this patent, but in view of the conclusions reached by the court it is only necessary to refer to plaintiff's earlier patent No. 701,255, issued May 27, 1902, on an application filed August 28, 1890. That was a pioneer patent for the combination with a lawn mower frame of a grass-catching receptacle supported by a wire frame detachably connected at its forward end to brackets on the frame of the lawn mower and a handle connected to the rear of the frame of the receptacle and to the sides of the frame thereof and detachably to the handle of the lawn mower frame. The claims of plaintiff's patent No. 1,039,355 are not for an improvement of the grass catcher, but for a new form of handle for the receptacle. Mr. Boss, the patentee, in his testimony said:

"In the spring of 1906 I found in a store in St. Paul a grass catcher offered for sale, having a long wooden handle like the one used on my first grass catchers. I immediately set about to improve this handle; conceived the idea of making a handle such as is shown in our No. 10 G schedule. This handle is composed of one piece of heavy wire bent double at its center, then bent again near the center, so as to hook over a top wire of the frame at the rear of the grass catcher. The wires were then brought forward—were formed and twisted so as to form a hand grip to be used in lifting and carrying the catcher. The wires were then bent outward, one to each side of the grass catcher; hooks were formed at the ends of the wire, which were closed down securely over the top wire of the frame at the side of the grass catcher. This made a very rigid handle, which balanced the carrier perfectly."

And on cross-examination, when asked the following question:

"As a matter of fact, after seeing the Hann Manufacturing Company long handle catcher in 1906, did it not instantly occur to you that you would carry those side wires back and hook them around the rear of the frame and get the same handle feature in a more compact form than in your long handle catcher?"

-his answer was:

"Not immediately after I saw that handle. When I saw the handle, the question that came into my mind was what to do with the infringement, and how I could better the construction of my catcher. The result was the making of the short wire handle in the fall or winter of the year 1906, offering it to the trade the coming spring."

Under the plaintiff's patent, No. 701,255, the handle was straight, without any hook to fasten it to the lawn mower bar but was detachable, as is the device of the last patent. patents show the changes:

The illustrations of the two

PATENT NO. 701,255