cle, and subsequently suffered interlocutory judgment to be entered against
himself by default. Afterward he continued to make and sell an article differ-
ing but slightly from the former, and a clear infringement of the one patented.
A bill in equity having been brought to restrain the unlicensed manufacture,
and it appearing that the defenses set up in the answer were within the de-
fendant's knowledge at the time of the action at law: Held, his agreement can-
not be repudiated. It was made for a valuable consideration, with a full
knowledge of the facts, and there is nothing to show that it was either uncon-
scientious or unreasonable. *Brooks v. Moorhouse, 211.
2. The defendant, both by the proceedings in the action at law and the agreement
signed by him, is concluded from contesting the validity of the patent. *Id.
3. An interference in the Patent Office in which priority of invention was awarded
against the patent in suit does not conclude the complainant from maintain-
ing his action thereon. The question before the Office did not directly concern
the existing patent, but whether another should issue to the contesting appli-
cant, and however it might be were the parties the same, since the respondent
here was a stranger to the former proceeding, there is no estoppel. *Perry et
al. v. Starrett, 368.
4. The objection of estoppel or res judicata urged by each party to the suit against
the other, because of prior controversies, not maintained. The requisite iden-
tities of cause of action, parties to the suit, character or quality of the parties,
and subject-matter in contest not existing between the present and the pre-
ceding cases. *Blackwell & Co. v. Dibrell & Co., 376.
EVIDENCE. See Damages and Profits, 8; Practice in Courts; Priority of Invention ;
Public Use; Reissue, 12.
1. The provision of the patent act of 1870, that in the case of a prior foreign patent
the United States patent "shall expire at the same time with the foreign pat-
ent, or, if there be more than one, at the same time with the one having the
shortest term," is not retroactive. It did not take away any portion of the
term of an existing patent, nor any right to an extension [a reissue?] which
was in force when such patent was granted. *Anilin et al. v. Hamilton Manu-
facturing Company, 185.
2. Hence, a patent granted originally in 1869, and reissued after the passage of the
act of 1870, is not abridged in term by the expiration of a prior foreign pat-
ent for the same invention occurring subsequent to the reissue. *Id.
3. Patents granted under the act of March 2, 1861, remain in force for the full term of
seventeen years. A prior foreign patent for the same invention does not oper-
ate to abridge the duration of the grant. Goff et al. v. Stafiord et al., 402.
4. By the provisions of the patent act of July 8, 1870, Congress never intended to
extend the term of the domestic patent beyond the legal term secured to the
foreign patentee when the domestic patent was granted. *Henry v. Providence
Tool Company, 409.
5. Hence, Letters Patent No. 119,846, granted to Alexander Henry, October 10, 1871,
for improvement in rifled fire-arm, expired by limitation of law with the origi-
nal English patent, granted for fourteen years from November 15, 1860. *Id.
6. The prolongation of the English patent for a further term after the expiration of
the original docs not save the domestic patent from lapsing under the statute.
* Id.
FOREIGN PATENTS. See Expiration of Patents.
FORMAL.DIFFERENCES. See Equivalents, 3; Infringements, 1, 13, 24, 27, 31.
GRANT. See Assignment and License.
IMPROVEMENTS. See Damages and Profits, 4, 6; Infringements, 40, 45.
INFRINGEMENT. See Assignment and License, 4; Construction of Patents, 1; Dam-
ages and Profits; Equivalents; Mechanical Skill, 1; Particular Patents.
1. Although defendant's dies were in four parts, and complainant's in but two, in-
fringement was established from the fact that the "side dies," so called, when
connected with the principal dies, were identical in operation and effect with the
side walls of complainant's top and bottom dies. *Klein v. Park & Co., 157.
2. The gripers which operate, in conjunction with the sheath and knife, to seize and
conduct forward the severed end of the paper web, form no part of the patented
combination. That they are referred to in describing one of the purposes of
the invention does not include them in it; hence, where other means, in lieu of
the gripers, were employed to advance the web, infringement of the combina-
tion existed none the less. *Bullock Printing Press Company v. Jones et al., 171.
3. A device for puffing fluted fabric, consisting of a double-plated segment of a hol-
low cylinder, with its arch upward, between the guide-plates of which the ma-
terial passes to the ordinary grooved fluting-rolls beyond (Reissue Letters Pat-
ent No. 3,000, G. E. King, June 23, 1868), is not infringed by a spring-pressed
detent or finger operating above and in conjunction with a smooth flat plate,
over which the material is fed to the rolls. (Letter's Patent No. 134,621, R.
Werner, January 7, 1873.) * Werner v. King, 175.
4. It appears that in the first device (the complainant's), the cross-section curve of
the arched guide-plates being greater in length than the rolls, a redundant
width of material is constantly fed to the latter, which excess causes the mate-
rial to rise in irregular puffs between the fluting-lines; in the second the spring-
finger momentarily detains the central portions of the fabric intermediate to
the fluting-linės, and thereby produces the crinkles. *Id.
5. The difference is more than one of form. With complainant the puffing is due
entirely to the curved guide, and unless a guide in some manner gives an arch
or curve to the material on passing into the rolls, it is not within the scope of
his patent. The result produced must not only be the same, but it must be
done in substantially the same way. *Id.
6. The devices operate on different principles. The arched guide invariably feeds
the same amount of redundant material, irrespective of the elasticity or rigid-
ity of the fabric, while the detention of the finger, and consequently the puff-
ing, will vary with the resisting strength of the fabric and the power of the
presser-spring. *Id.
7. With the arched guide the puffing results from a pressure which is uniform over
the entire surface of the fabric; with the detent or finger the pressure varies.
*Id.
8. The two devices are in no sense mechanical equivalents, unless complainant
claims every method by which a redundancy of material is presented to the
rolls for puffing. This he does not do, and, if he did, the claim would be fatal.
*Id.
9. If it be capable of being produced by various different processes, yet when the
product is new, independent of the process, the patent is infringed by the unli-
censed manufacture of the new product by any mode of manufacture, the pro-
cess of manufacture being wholly unimportant. *Anilin et al. v. Hamilton
Manufacturing Company, 185.
10. Proceedings in equity for infringement of patents are not strictly proceedings
for torts. Aside from the restraint by perpetual injunction, an infringer must
account as trustee for profits realized, and is liable for the damage of infringe-
ment; hence, where a decree had settled the question of infringement, and the
case had been referred to a master to ascertain the amount for which final de-
cree should be entered, pending which the respondent died, the action was
held to survive notwithstanding. *Atterbury v. Gill, 194.
11. A weighted knife with five planes or faces, which descends by gravity upon a
flat continuous paper web and severs a peculiar outline blank that folds into a
bag without further cutting (Claim 1, Letters Patent No. 24,734, William
Goodale), is infringed by a stationary serrated-edge knife of substantially the
same form fixed to the machine-bed, and which cuts the same shaped blank
from the web, passing above by conjoint action with a quick-descending striker,
which gives the paper a vertical blow, directly in advance of the edge of the
knife. * The Union Paper-Bag Machine Company et al. v. Murphy et al., 199.
12. The two devices-viz., the knife and the striker-operating together perform the
exact same function as that performed in the complainants' machine by the
ascent and descent of the cutter. It makes no difference that the latter severs
the blank by its own gravity, while in the former the descending striker falls
upon the paper at the proper moment to cause the stationary knife to cut for
the same purpose. They are alike in function. *Id.
13. Except where form is of the essence of an invention it has but little weight in
determining the question of infringement. It is necessary to look at the mode
of operation and at the result, as well as at the means by which the result is
attained. * Id.
14. In the patented device the elastic resilient ridges, over which the foot may easily
slide, serve as "scrapers to clean the feet," and the cells or inclosed spaces
hold the dirt thus removed. In the other device the projecting hemispheres or
pyramids present a frictional bearing to prevent sliding, and make the foot rest
firmly, while the depressions corresponding to the patentees' dirt-cells are not
to retain the dirt, but by the construction of the parts, and the elasticity of the
material, facilitate the removal of mud, water, and ice. The two contrivances
do not perform the same function by the same means, and each is unfit for the
use and purpose for which the other is intended. * Brown et al. v. Rubber Step
Manufacturing Company et al., 206.
15. Hence, where the employer rested his suit for infringement on a legal title ob-
tained under such circumstances, the court ruled that the equitable title of the
workmen under which the defendants justified was superior, and that there was
no infringement. *Whiting v. Graves et al., 208.
16. The means employed by the defendant being different in the essential elements
of organization from that of the patentee, no infringement occurs, although
the several devices are alike in accomplishing a common result. *Merriam et
al v. Van Nest et al., 219.
17. Long-continued use of a particular form of package and of particular colors for
its wrappers, papers of directions, and labels having served to distinguish
the complainants' article in the trade, the appropriation of such peculiarities
in form and color by another dealer for packages of the same article will be re-
strained. *Frese & Co. v. Bachof, 220.
18. Action for infringement may be maintained against a joint owner of a patent for
the unauthorized use of a device which infringes it. *Herring v. Gas Consumers'
Association, 225.
19. The case distinguished from that in which the joint owner uses the device secured
by the common patent. *Id.
20. It is an infringement where the sweep-rake operates in combination with the
quadrant platform to remove the cut grain in substantially the same way and
for the same purpose as in the complainants' patent, even though the mode of
attaching the rake-arm to the machine and the means employed for retaining it
in position for another sweep are different. *Marsh et al. v. Seymour et al., 232.
21. Since, under such restriction, the means employed by the respondent to accom-
plish the common object differ both in construction and mode of operation from
those of the patentee, no infringement occurs. *Ashcroft v. The Boston and Low-
ell Railroad Company, 249.
22. An invention which consists in surface-coating the interior of a blower-case—i. e.,
its end-pieces or head-plates and the concaves-with plaster-of-paris or equiv-
alent, so that the revolving pistons will work true and air-tight, is clearly in-
fringed by the substitution of a composition of litharge and glycerine for the
plaster. *Hyndman v. Roots et al., 255.
23. For the purposes of the invention, the composition is the substantial equivalent
of the plaster, and its use a palpable evasion of the patent. *Id.
24. Where the concave arcs of the blower were made of a certain size, and located
in certain relation to the axes of the revolving piston-sweeps, so that the entire
casing might be cast in one piece, and yet permit the ready removal of the abut-
ments and pistons: Held, that to copy the proportions and relative position of
the arcs was none the less an infringement, even though the respondent did
not make his casing in one piece. *Id.
25. A trade-mark is infringed if ordinary purchasers buying with ordinary caution
are likely to be misled by the spurious mark. *McLean v. Fleming, 262.
26. Original inventorship or proprietorship of the article and the relative value or
quality of the rival products are not in question when action is brought for in-
fringing a distinguishing trade-mark. If the mark has become associated with
the goods of one trader, its wrongful appropriation by another will be enjoined.
*Id.
27. Exact similitude to the trade-mark is not essential to its infringement. If it is
such as would be likely to mislead in the ordinary course of purchasing the
goods, equity will interfere to prevent the deception. *Id.
28. Where the infringement is clear, proof of fraudulent intent is not essential to es-
tablish liability. *Id.
29. An anvil-post heated upon its surface to prevent the cracking of the glazed um-
brella-case reversely drawn therefrom, right side out, after attaching the end
metal ring, is infringed, although the construction of the post and its manner
of heating are different in the infringing device from those of the patentee.
*Odiorne v. Denney, 270.
30. That the improved structure is of increased efficiency renders it none the less
liable, if it is an equivalent of the patented device in so far as it involves the
same principle or mode of operation. *Id.
31. The complainants' apparatus is infringed, although those of the defendants are
portable and otherwise differ in minor details. All obtain a like result by sub-
stantially the same means. *Gottfried et al. v. Bartholomae et al., 293.
32. As the described invention related strictly to grain-drills in which a toothed or
fluted cylinder revolves within the seed cup to distribute the grain, the claims
were correspondingly construed, and drills with revolving wheels or disks de-
clared to be beyond the scope of the patent. *Moore et al. v. Thomas, Ludlow &
Rogers, 296.
33. A loose shaft passing axially through the seed-cylinder, and having a short bear-
ing against it near one end, there being also a short external bearing of the
cylinder against the side of the seed-cup (Moore patent of 1860), is not infringed
by a shaft which journals within a hub attached to a seed-wheel or disk, the
hub bearing externally against the case side. *Id.
34. The wheel and its hub do not constitute a cylinder in the strict sense, and it is
unimportant whether the shaft-bearing extends the full length of the hub or
not. Since the invention of the patentee is a cylinder in which the shaft-bear-
ing must be for only a short distance of the cylinder length, the two devices
are materially different. *Id.
35. Nor is it an infringement where the shaft bears for the full length of the seed-
wheel and that of the loose hub or thimble contiguous to it. *Id.
36. The invention of the patentee under which the defendants manufacture having
been completed at about the date of that contained in the complainants' patent,
and there being no lack of diligence in applying for protection, the court con-
strued complainants' patent strictly to avoid the infringement and to sustain
both grants. *Id.
37. The slight bevel of incline given the hub of the defendants' seed-wheel is an in-
cident of the method of casting, and has no function when the hub and wheel
are in operation. It does not infringe the complainants' machine wherein the
end bearing of the cylinder is designedly beveled for a specific purpose and to
effectively aid its working. *Id.
38. Though the defendants' machine had but a single graver or cutting-tool, while
that of the complainants carried a set of three hundred and twenty-four, yet as
the manner of cutting-the modus operandi-of the two machines was essen-
tially the same, infringement was decreed. *Hart, Bliven & Mead Manufactur-
ing Company v. Sargeant & Company et al., 306.
39. Differences which are merely formal, not affecting the substantial principle of
operation of the machine, held not sufficient to avoid liability from unlicensed
*Id.
40. The principle of the invention, the construction of the device by the same gen-
eral mechanical means being retained by the defendants, infringement occurs,
notwithstanding they may make a more perfect instrument. *Miller's Falls
Company v. Ives & Co., 309.
41. It is an infringement even though other devices may be employed in conjunction
to supplement the functions of the plaintiff's mechanism, aside from these the
mechanism of the two parties being substantially the same. *Sprague et al. v.
Adriance et al., 319.
42. To repair a dental plate made according to the Cummings patent (Reissue No.
1,904) by the substitution of a new for an old portion, with teeth embedded,
is an infringement of the patent. *Goodyear Dental Vulcanite Company v. Pre-
terre, 324.
43. Such repairs, which in fact practiee the entire invention (the patent not being
confined to any size or shape of plate), distinguished from those cases wherein
defective machine parts are corrected or changed without damage. *Id.
44. So, too, it is an infringement of the patent if the teeth be embedded in rubber
according to its terms, although the remaining portion of the base-plate be
made entirely of gold. *Id.
45. That the original invention has been supplanted in the trade by the improved
device of the defendant is no test of non-infringement. In so far as he may use
the invention, even though it be in connection with his own additions, which
have rendered it of such increased value, he is liable. *Tussell v. Spaeth, 329.
46. It is an equivalent means and an infringement of the Lovatt patent to use a lever
and an eccentrically-pivoted cam in lieu of the longitudinal adjusting-screw in
effecting the simultaneous movement of the sole and heel clamps of the skate.
*Id.
47. Infringement of a design-patent may exist notwithstanding that the alleged
infringing article is made to carry a distinguishing name or distinguishing
marks of other character. *Perry et al., v. Starrett, 368.
48. A fastening for metal boxes in which a projection struck out from the box-body
snaps into a corresponding indentation in the rim or cover is infringed by a
fastening wherein a perforation in the rim is substituted for the indentation.
*Parker v. Remhof, 374.
49. The sides of the perforation are the same in function with the indentation, and
the two fasteners mechanical equivalents. *Id.
50. A change of location of a part in a patented combination, where there is no new
function performed by the changed member in its new location, will not evade
a patent. *Knox et al. v. Great Western Quicksilver Mining Company, 425.
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