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CARPER v. CROWN CORK & SEAL CO. OF BALTIMORE CITY.

(Circuit Court of Appeals, Fourth Circuit. June 1, 1917.)

No. 1493.

PATENTS 328_VALIDITY AND INFRINGEMENT-BOTTLING MACHINE.

The Carper patents, No. 1,012,984 and No. 1,120,596, each for a bottling machine, are valid and entitled to a fairly liberal construction; also held infringed as to various claims, but not infringed as to claim 1 of the second patente

Appeal from the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge.

Suit in equity by the Crown Cork & Seal Company of Baltimore City against Albert A. Carper. Decree for complainant, and defendant appeals. Affirmed.

For opinion below, see 229 Fed. 748. William F. Hall and Melville Church, both of Washington, D. C. (Edward N. Rich, of Baltimore, Md., on the brief), for appellant.

James Q. Rice, of New York City (A. E. Donaldson, of Baltimore, Md., on the brief), for appellee.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges,

PRITCHARD, Circuit Judge. The Crown Cork & Seal Company, plaintiff below, being the owner by assignment of Carper patent No. 1,012,984, for bottling machines, dated December 26, 1911, and Carper patent No. 1,120,596, for bottling gaseous liquids, dated December 8, 1914, on or about May 25, 1915, filed its bill of complaint against the Carper Automatic Bottling Machine Company, of Baltimore, Md., and Albert A. Carper, for infringement of these patents, and made a motion for injunction pendente lite. The machine complained of as infringing the patents had been installed in the plant of one of plaintiff's customers, the Coca-Cola Bottling Company, in Baltimore.

This motion for injunction was heard by the court below on June 9, 1915, the witnesses being examined in open court. The motion was granted June 18, 1915. The case came on for final hearing October 25, 1915. The testimony which had been taken at the trial of the motion for preliminary injunction was stipulated into the record, and further examination of witnesses by defendants and by plaintiff in rebuttal was had. On December 29, 1915, the court below handed down a decision sustaining the patents in suit and holding the defendants to infringe. A decree was duly entered on January 10, 1916, from which the defendant Albert A. Carper appealed.

We have given much thought to this case, owing to the intricacy of some of the points involved. After fully considering the facts, as well as the law applicable thereto, we are satisfied that the court below was warranted in entering the decree that it did. The facts are fully and fairly stated by the court below, and, being in accord with the conclųsions of law, we content ourselves by adopting the opinion of the lower

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court as the opinion of this court--the same being reported in 229 Fed. 748.

For the reasons stated, the decree of the lower court is affirmed.

SINGER V. AMERICAN DRUGGIST SYNDICATE.
(Circuit Court of Appeals, Second Circuit. May 25, 1917.)

No. 215.
PATENTS 328_VALIDITY-INVENTION-CARTON AND DISPLAY DEVICE.

The Singer patent, No. 880,410, for a combined carton and display device, claim 1, held void for lack of invention,

Appeal from the District Court of the United States for the Eastern District of New York,

Suit in equity by Joseph B. Singer against the American Druggist Syndicate. Decree for complainant, and defendant appeals. Reversed.

For opinion below, see 233 Fed. 266.

Robert B. Olsen, of New York City (Alfred C. Coxe, Jr., of New York City, of counsel), for appellant.

Goepel & Goepel, of New York City, for appellee.
Before WARD, ROGERS, and HOUGH, Circuit Judges.

WARD, Circuit Judge. This is an appeal from the decree of the District Court for the Eastern District of New York sustaining claim 1 of letters patent 880,410, for combined carton and display device, issued February 25, 1908, to Joseph B. Singer, assignor to Oscar H. Hersey, trustee.

We have heretofore sustained claims 2, 3, and 4 of this patent upon the opinion of Judge Mayer in Singer v. Lamont, Corliss & Co. (D. C.) 227 Fed. 462, and 227 Fed. 1022, 141 C. C. A. 654. The question of their validity was regarded as doubtful, but was resolved in favor of the patentee because of the commercial success of the device.

Claim 1 reads: "1. The improved carton and display device comprising a body having folded ends and slots in the upper edge of said ends, a back display surface attached to said body, brackets on the said back display surface, and tongues on the said brackets engaging the said slots in the said ends."

The prior art is quite full of boxes made from folded carton blanks, some of which were also designed to display advertisements. The great advantage of Singer's invention was that his carton blank, though glazed and printed on one side only, could be folded into a box with a back and front display surface when the box was opened, viz. one on the inside of the cover and another on the outside of the front edge. When the box was closed, these surfaces were folded in so that they were not exposed to injury during transportation. This was his invention. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Claim 1 makes mention of the display surface on the back of the box, but says nothing about the front. The invention recognized in our prior decision was the production of two display surfaces by giazing and printing upon only one side of the carton blank. No doubt the mechanical features of the Singer box, as covered by claim 1, make it superior to any other box in the prior art, and the defendant uses it for this reason. Still we think no invention is indicated thereby. The process of folding a blank carton into a box has been a gradual one of improving here and there the mechanical details of the original conception. Nor does it involve invention to print an advertisement on the inside of the cover of such a box.

We think claim 1 is invalid for lack of invention, and therefore the decree is modified, and the court below directed to pronounce said claim invalid; costs of this court to the appellant.

E. G. LYONS & RAAS CO. V. DEUTSCHE DAMPSCHIFFFAHRTS

GESELSCHAFT KOSMOS. et al.

(District Court, N. D. California, First Division. May 16, 1917.)

No. 15879.

ADMIRALTY 54—FOREIGN ATTACHMENT-APPEARANCE OF RESPONDENT.

The owner of a vessel seized under foreign attachment, who has not been served with process, is not required to give a stipulation for value as a condition precedent to entering appearance to defend the suit.

[Ed. Note.-For other cases, see Admiralty, Cent. Dig. SS 443-447.] In Admiralty. Suit by the E. G. Lyons & Raas Company against the Deutsche Dampschifffahrts-Geselschaft Kosmos, a corporation; and Olson & Mahony, a corporation. On motion by libelant for entry of default. Denied.

Andros & Hengstler and Golden W. Bell, all of San Francisco, Cal., for libelant.

Denman & Arnold and Wm. B. Acton, all of San Francisco, Cal., for respondent Deutsche Dampschifffahrts-Geselschaft Kosmos and others.

DOOLING, District Judge. The libel was filed August 25, 1915, and on the same day, upon order of the court, a citation and foreign attachment issued. The marshal's return on the process shows that he was unable to find the respondent in this district, and that conse. quently he"attached the steamship Serapis belonging to the respondent, at San Francisco, and took the said steamship into his custody without placing a keeper in charge thereof, on August 25, 1915."

The attachment with the return was filed in this court on August 30, 1915, after which nothing seems to have been done until April 20, 1917, when the following appearance was filed on behalf of respondent, the owner of the Serapis :

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"Appearance of Kosmos Line. "To the Clerk of the Above-Entitled Court, and to Libelant Above Named, and

To Messrs. Andros Hengstler and A. Heynemann, Esq., Its Proctors: "You, and each of you, will please take notice that Deutsche Dampschifffahrts-Geselschaft Kosmos, a corporation, one of the respondents named above, hereby appears in said action, through the undersigned, its proctors, and requests the clerk of said court to enter said appearance of record. "Dated April 18, 1917.

Denman and Arnold, "Proctors for Deutsche Dampschifffahrts-Geselschaft Kosmos, a Oor

poration, also Known as Kosmos Line." No stipulation was filed by respondent, nor does it ask that its vessel be released from the attachment. Libelant now moves that the default of respondent be entered, or that it be directed to file a stipulation for the amount claimed in the libel. The motion is resisted by respondent.

The theory upon which libelant makes this motion is not quite clear. No application for a default was made prior to the appearance above noted. It is quite true that the admiralty rule (Rule 4, 29 Sup. Ct. xxxix) provides that the attachment may be dissolved upon the defendant giving bond or stipulation to abide all orders, interlocutory or final, of the court, and pay the amount awarded by the final decree. But if the respondent does not seek a dissolution of the attachment, it seems to me he may file his appearance and answer the libel as in other cases without filing such stipulation, letting libelant look to the attached vessel to satisfy any decree thereafter entered.

There does not seem to be anything in the rules which requires a respondent, who comes in to defend his goods taken by virtue of a foreign attachment, to secure the release of such goods by stipulation as a condition precedent to his right to defend them.

The motion will therefore be denied.

In re SAMET.

(District Court, D. Maryland. June 21, 1917.) BANKRUPTCY (407(5)—DISCHARGE-Right To.

A bankrupt, who was indebted to a bank and desired to renew notes when they fell due, executed more than a year before adjudication a statement in writing as to his financial condition, which was false. The bank permitted him to renew obligations as they fell due, and at the time of adjudication the debt was less than at the time when the statement was executed. The bank, relying on the statement, did not apply to the debts due it the balance due the bankrupt on hand at the time the notes fell due, and by reason of its failure the bankrupt's debt was greater than it would have been, had such balance been applied. Held, that the bankrupt was not entitled to a discharge.

[Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. $$ 760, 761.) In Bankruptcy. In the matter of the bankruptcy of August Samet, individually and trading as A. Samet & Co. On opposition to discharge. Discharge denied.

Edward Duffy, of Baltimore, Md., for objecting creditor.
Bernhard Cline, of Baltimore, Md., for bankrupt.

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

ROSE, District Judge. August Samet was adjudicated a bankrupt on the 14th day of March, 1916. He then was indebted to the Farmers' & Merchants National Bank of Baltimore, which opposes the granting of his discharge on the ground that for the purpose of obtaining credit from it, on the 26th day of February, 1915, he made a statement in writing to it of his financial condition as of January 15, 1915, and thereafter. obtained from it money on credit upon said statement, and that the statement was materially false.

There is no question that the statement was made, and none that it was false, and false to the knowledge of the bankrupt when he made it. Instead of having a stock of merchandise worth nearly $11,000, as the statement purported to show, he was well aware that he had less than $5,000. Instead of having good accounts receivable due from customers to the amount of over $9,800, he knew that he did not have half that amount, probably not a third of it.

The only question in the case is whether, within the meaning of the statute, he obtained money upon the faith of such statement. When he made it, he owed the bank $4,400. At the time he failed, that debt had been reduced to $3,600. It appears his indebtedness from first to last was represented by several promissory notes maturing at different dates. When one of these notes fell due, he offered for discount another note for the same or for slightly smaller sum, and gave his check for the amount of the old note. At the date of maturity of each of these notes he always had some money in bank. On several occasions he had, at the beginning of business on the day on which the note fell due, a balance large enough to have paid the note so falling due in full, and on one occasion he had such balance at the end of the day. The bank would have been able, on the day any one of the notes fell due, to have applied the balance in bank to the reduction or extinguishment of such a note. It did not do so because, while it regarded his condition as unsatisfactory, his statement led it to believe that such a drastic course of action was not required for the protection of its interests. In the aspect of the case most favorable to him, the effect of the bank's reliance upon this statement was that at the time he became a bankrupt he owed the bank upwards of $200 more than he would have owed it, had the bank earlier availed itself of the remedies within its power.

The question here presented was before me in the Case of Waite et al., 223 Fed. 853, on appeal Doyle v. First National Bank of Baltimore, 231 Fed. 649, 145 C. C. A. 535, and I there decided it adversely to the bankrupt. Doyle, one of the partners affected by that decision, took his case up on appeal. The Circuit Court of Appeals did not find it necessary to pass on the correctness of my ruling in the respect mentioned, it having reached the conclusion that Doyle had not knowingly participated in the making of the false statement there relied on. I have not had my attention directed to any subsequent cases in which this question has been raised. The point is undoubtedly a close one, as I fully recognized in the opinion in the Waite Case, but now, as then, it seems to me that the conclusion there announced was right.

It follows that the discharge must be denied.

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