uation by Capt. Wilson, were during the period of detention instructing their agents to make claim upon the government of Brazil for the delay and attendant expenses, shows that they regarded the government as responsible for it, and did not attribute it to the consignees. We conclude that the libelants have failed to establish such a default on the part of the charterers as entitles them to a recovery for the detention. The decree is reversed with costs, and with instructions to dismiss the libel. (130 Fed. 766.) FRYE & BRUHN v. CARSTENS et al. (Circuit Court of Appeals, Ninth Circuit. May 2, 1904.) 1. APPEAL-INTERLOCUTORY JUDGMENT-TEMPORARY INJUNCTION-DISSOLUTION. Act March 3, 1891, § 7, as amended by Act June 6, 1900, c. 803, 31 Stat. 660 [U. S. Comp. St. 1901, p. 551], provides that where, on a hearing in equity in a district or circuit court, an injunction shall be granted or continued by an interlocutory order or decree in a case in which an appeal from a final decree may be taken to the Circuit Court of Appeals, an appeal may be taken from such interlocutory order or decree granting or continuing such injunction to the Circuit Court of Appeals. Held, that, where a temporary injunction was dissolved on a demurrer to the bill being sustained, plaintiff was not entitled to an appeal from so much of the order only as dissolved the injunction. Appeal from the Circuit Court of the United States for the Western Division of the District of Washington. James M. Ashton, for appellant. R. G. Hudson and R. S. Holt, for appellees. Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge. ROSS, Circuit Judge. The motion made to dismiss the appeal in this cause must be granted. To the bill filed by the complainant the defendants demurred, upon the ground that upon its face it failed to show that the complainant was entitled to the relief sought. Among the relief so sought was a restraining order and injunction, and upon the bill a restraining order was granted by the court, a motion to dissolve which was afterwards made by the defendants, and came on for hearing before the court with the demurrer to the bill, and resulted in this order of the court: "The demurrer to the bill and motion of defendants to dissolve the restraining order herein coming on for hearing in open court on this 23d day of September, 1903, and the court having heard read the said bill and demurrer. with the record and files herein, and having heard the arguments of counsel for all parties: "It is ordered and decreed that the said demurrer be, and the same is hereby, sustained, whereupon plaintiff upon its motion therefor was granted leave to file an amended bill of complaint herein, and at the request of its counsel was allowed thirty days from this date so to do; and, plaintiff having thereupon given notice of appeal from said decision to the United States Circuit Court of Appeals for the Ninth Circuit in so far as the same might operate to dissolve said restraining order or injunction, the court did order and direct that said restraining order continue in force, and that all proceedings thereon pending said appeal be stayed, upon the plaintiff filing an additional bond on appeal in the sum of fifteen hundred dollars." The appellant's petition for appeal, which was allowed by the court below, is as follows: "The above-named plaintiff conceiving itself aggrieved by the interlocutory order made and entered herein by the above-entitled court on the 23d day of September, 1903, whereby said court declined to continue the restraining order herein in force, and permitted the same to stand as a temporary injunction pending the determination of this appeal, only upon this plaintiff giving an additional bond herein on appeal in the sum of fifteen hundred dollars, and requiring that said additional bond be given as a condition of said appeal, and as a condition for the order of said court staying proceedings under said injunction or temporary restraining order during the pendency of said appeal, and this plaintiff having on said 23d day of September, 1903, in open court, given notice of an appeal from said interlocutory order: "Now, therefore, said plaintiff does hereby appeal from said order to the United States Circuit Court of Appeals for the Ninth Circuit, and for the reasons specified in the assignment of errors filed herewith; and the plaintiff hereby prays that this its said appeal may be allowed, and that a transcript of the record, proceedings, and all papers upon which said interlocutory order was made may be sent, duly authenticated, to the United States Circuit Court of Appeals for the Ninth Circuit at San Francisco, California." The appeal must be dismissed, because the sustaining of the demurrer to the bill upon the ground that it did not state sufficient facts to warrant the relief sought necessarily resulted in a dissolution of the restraining order, which could not stand while that upon which it was based fell. The complainant had the right, of course, to stand upon its demurrer, submit to final judgment against it, and bring the case here for review, or to avail itself of the privilege given by the court below to amend its bill, which it seems it did. The only appeal the plaintiff sought to take was from so much of the order made by the court below as undertook to work a dissolution of the restraining order, which, under the statute as it now exists, is not appealable, section 7 of the act of March 3, 1891, c. 517, 26 Stat. 828, establishing the Circuit Courts of Appeals, having been amended by the act of June 6, 1900, c. 803, 31 Stat. 660. [U. S. Comp. St. 1901, p. 551], so as to read as follows: "Sec. 7. That where, upon a hearing in equity in a District Court or in a Circuit Court, or by a judge thereof in vacation, an injunction shall be granted or continued or a receiver appointed, by an interlocutory order or decree, in a cause in which an appeal from a final decree may be taken under the provisions of this act to the Circuit Court of Appeals, an appeal may be taken from such interlocutory order or decree granting or continuing such injunc tion or appointing such receiver to the Circuit Court of Appeals; provided, that the appeal must be taken within thirty days from the entry of such order or decree, and it shall take precedence in the appellate court; and the proceedings in other respects in the court below shall not be stayed, unless otherwise ordered by that court, or by the appellate court or a judge thereof, during the pendency of such appeal: provided further, that the court below may in its discretion require as a condition of the appeal an additional bond." The appeal is dismissed. 65 C.C.A.-13 (130 Fed. 886.) LOWRIE v. H. A. MELDRUM CO. (Circuit Court of Appeals, Second Circuit. April 25, 1904.) No. 154. 1. PATENTS-INFRINGEMENT-GARMENT FASTENER. The Steel patent, No. 652,407, for a garment fastener, designed to hold down the skirt band and belt so as to give the waist a downward curve in front, and which, as described, consists of a combination of hooks to hold the band and belt, with a shank fitted to be attached to the fastening devices of a corset, was not anticipated, and discloses invention. but is not infringed by a device otherwise similar, but which is fastened to the fabric of the corset by means of a safety pin; such device being substantially shown in the prior art. Appeal from the Circuit Court of the United States for the Western District of New York. This cause comes here on appeal from a decree adjudicating the validity and infringement by defendant of patent No. 652,407, granted June 26, 1900, to Anna M. Steel for a garment fastener. For opinion below, see 124 Fed. 761. Harry C. Kennedy and Horace Pettitt, for appellant. Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges. TOWNSEND, Circuit Judge. The record shows that for some years prior to the date of the patent in suit a host of would-be inventors had been directing their efforts toward the production of a practicable device for firmly fastening garments together at the waist. The earlier devices were generally designed chiefly to support the lower garment. Later such devices were also adapted to depress alike the upper and lower garments so as to give the required shape. The patentee herein appears to have constructed a device superior to those which had preceded it, and one which has achieved great commercial success. It is "adapted for the purpose of holding down the front of the skirt and the belt of women's garments; it having for its objects to prevent the skirt from 'hiking,' and also to produce a downward curve or slope of the skirt band and belt toward the front." It consists "essentially of a garment fastener composed of a shank provided with means for its attachment to the fastening devices of the corset, and provided at its upper end with hooks located in position to engage with the upper edge of the skirt band, and with hooks located above the plane of the first hooks, and adapted to engage with the upper edge of the belt." The claims in suit are the following: "(1) A garment fastener provided with means for its attachment to the fastening devices of a corset, and with two outwardly and downwardly extending hooks, each in a different plane, the one being adapted to engage with the upper edge of the skirt band, and the other with the upper edge of the belt, substantially as described." "(3) A garment fastener comprising a shank having means for its attachment to a corset, and provided with a row of outwardly and downwardly extending hooks, projecting from lateral extensions on said shank, and with a second row of outwardly and downwardly extending hooks in a different plane from that of the first row, substantially as and for the purpose specified." The elements of this combination were old. Shanks provided with means, etc., said means being specifically described as "a series of longitudinal slots or other suitable sockets for the purpose of adapting the shank to be attached to one of the usual fastening studs in corsets," were shown in prior patents to Towson and Carr & Wolf, and on reference to the latter patent a claim by this patentee for such means was rejected in the Patent Office. Hooks in different planes for engaging respectively the belt and shirt waist were shown and described in the Dunbar patent of 1899. And Sanders, in his patent of 1899, had shown and described a device to keep men's belts in place, which comprised a combination of elongated shank, and means capable of attachment to a woman's corset or corset clasp, with hooks in different places at the upper end of the shank, adapted to keep a skirt band and belt in position. But when, at the close of the nineteenth century, the decrees of fashion transformed the circular waist of nature, characteristic of that period, into the conventional downwardly curved slope in front, in the similitude of a girdle, or the pointed waist of the Elizabethan period, a new problem was presented to the designers of garment clasps. They must no longer fasten and support the garments at the waist line of nature, and in a natural position. They must now force the meeting edges of skirt band and belt, and incidentally of the shirt waist, down below the true waist, and "draw and hold the front of the skirt downward" by an attachment so firmly fastened as to be adapted to the anatomy of a woman having a prominent abdomen, and to prevent the skirt and belt from rising above it. The patentee herein met the exigencies of the situation by providing in compact form a combination of the old devices, but now adapted to grip with the corset stud, and to engage the meeting garments and hold them down in suitable relative positions. It appears that in so doing she exercised in a humble way, and to a limited extent, the faculty of invention. She certainly succeeded in producing a practical fastener, superior to all the devices of the prior art. We conclude that the claims in suit of her patent are valid, so far as they cover the precise device "substantially as described." The defendant has attempted to meet the demands of the new fash ion by providing a fastener which should be so within the disclosures of the prior art, and without the limitations of the patented fastener, as not to infringe. It has constructed a shank provided with the outwardly and downwardly extending hooks, in different planes, of the patent in suit. But it has not provided any means for attachment to the fastening devices or stud of the corset. Instead, it has equipped the lower end of the shank with an ordinary safety pin, for the purpose of fastening the device to the fabric of the corset, and adapted to engage only with such fabric. That this safety pin is not "a means for attachment to the fastening devices of a corset" is proved by the admission of complainant's witness Mrs. Holch, a dealer in such articles, that she has seen a great many of defendant's devices in use; that all of them which she has seen have been pinned to the fabric of the corset and skirts; that, while it would be possible to engage the corset stud with the safety pin, pinning through the fabric is the quickest way, by the self-evident fact that such fastening would not be firm, stable, or sufficiently strong, if accomplished by engagement of safety pin and stud, and finally by the fact that such engagement would not be practicable, because the long distance between the corset studs would preclude the possibility of practical adjustment. The sole question, then, is as to infringement of the third claim by broadening the same so as to include a safety pin, as the equivalent of the "means for attachment to a corset * * *substantially as described." But the effect of thus broadening said claim is to raise the question of patentable novelty, in view of design patent No. 25,795, granted in 1896 to E. B. Bunnell for a "garment supporting buckle or pin such as may be used to retain in place a lady's shirt waist, skirt, and belt." The specifications describe and the drawings show a body portion or plate provided with an upper hook and two arms. extending downwardly from its ends; said arms consisting of spring clasps, the lower portions of which are adapted to grasp and hold down a shirt waist in place. If the spring be omitted, the sole function of the clasps would be that of downwardly extending hooks to keep the skirt from rising up, and to produce a downward curve of said band. The center of the plate is provided with a safety pin for attachment to the fabric of the corset or other garment. The single material difference between this fastener and that of defendant is that in the latter the band is lengthened, and the safety pin is at the lower end instead of in the center of the band. But this change is a mere mechanical adaptation to the later requirement of fashion, that the skirt band should be kept down, instead of held up, as formerly. In view of this complete disclosure of the means employed by defendant, the scope of the third claim cannot be enlarged to cover defendant's device without destroying its validity. The admissions of complainant's expert as to the Bunnell patent confirm this view. The argument of complainant's counsel that Bunnell does not anticipate, because the statement of functions in the specifications is not a proper subject for consideration, is immaterial, because such statement, in connection with the drawings, constitutes a complete disclosure of defendant's construction in a printed publication prior to the patent in suit. The decree of the court below is reversed, with costs of this court, and the cause is remanded to the Circuit Court, with instructions to enter a decree in accordance with the foregoing opinion. (130 Fed. 888.) SPENCER ELEVATOR SAFETY GUARD CO. v. BEIFELD et al. (Circuit Court of Appeals, Seventh Circuit. April 26, 1904.) No. 1,068. 1. PATENTS-INVENTION-ELEVATOR GUARDS. The Spencer patent, No. 648,309, for an elevator guard, consisting of a board or riser extending downward from the doorsill of an elevator from 12 to 18 inches, to prevent the feet of persons entering from being caught between the bottom of the elevator and the floor, is void for lack of pat entable invention. |