ficulty with the heel portion, they then sewed the heel wedge of crepe rubber to the equivalent of a welt at the heel, and sewed aloft a single full sole layer of crepe rubber to the welt at the fore part of the shoe, and brought it over the heel wedge to which they cemented it. This they found satisfactory, although Mr. Cutler said that, in his experiment with sewing aloft, he found that crepe rubber would not hold the stitches, but he afterwards said the stitching had nothing to do with his "turning to the invention."

The Hanan workmen thereafter adhered a second layer of raw rubber to the one which had been sewed aloft, and covered the stitches to improve the appearance of the shoe, and followed the shoemaker's art by using for that purpose an old and to them well-known rubber cement (Montgomery No. 1), while Mr. Cutler, as it appears to me, received the approval of Mr. Young without a test when he caused the outer layer to adhere to the inner layer and hide the stitches, for the very same reason, that it improved the appearance of the shoe.

Both Hanan's men and Mr. Cutler in the beginning followed the American custom of sewing aloft, while the British workmen followed their practice of securing the sole with cement; and yet we find that, on July 22, 1922, an application was filed for a British patent by Greengate and Irwell Rubber Company, Limited, and Walter Hubbard, disclosing the same structure as the patent in suit with an improvement which Cutler did not adopt until 1924.

We thus have three sets of mechanics, in England, New York, and Massachusetts, without any connection with each other, doing the same thing in the same way with a new material, which goes to prove that it was simple and obvious. Elliott & Co. v. Youngstown Car Mfg. Co., 181 F. 345, 349, 104 C. C. A. 175.

In addition to which as we have seen the following facts appear: Cutler did not first suggest the idea of using crepe rubber for soles; on the contrary, that idea came from England. Sewing aloft was old and standard American practice for vulcanized rubber soles. The use of a covering or double sole which hid the stitches or other mechanical fasteners was old, particularly in rubber soles. The use of a solvent such as benzol to soften the surfaces of two layers of raw rubber to be joined was old, and the ordinary practice of the rubber worker, who also knew that such solvent produced a unified

mass.

It therefore seems to me that the patent in suit is invalid for want of invention, because Cutler was doing what the art taught, and that did not constitute invention, but was simply what other skilled workmen were doing at the same time at other places. Atlantic Works v. Brady, 107 U. S. 192, 199, 2 S. Ct. 225, 27 L. Ed. 438.

Furthermore, it seems to me that the patent in suit is invalid, because all that Cutler did was to substitute one material for another, viz. crepe rubber for vulcanized rubber, in the shoes of the prior art, and crepe rubber was not discovered by him. New York Belting & Packing Co. v. Sierer, 158 F. 819, 86 C. C. A. 79.

[3] I am not unmindful of the presumption of validity given to an issued patent, but it is only a presumption that may be rebutted by proof, and I think the proof sufficient in this case.

[4] Neither am I unmindful that a process, the steps of which are old, may be patentable when co-operating with each other they produce a result that is new and useful, but I do not agree with the plaintiff that the making of vulcanized rubber shoes was not an analogous art, and all that the patent in suit discloses was shown in the Godfrey patent, No. 34,682, the only difference being that in that patent the soles were made of vulcanized rubber, the midsole mechanically secured, and the outer sole cemented to the midsole, and I am unable to see any invention in causing the contacting surfaces of two layers of crepe rubber, to which a solvent such as benzol has been applied, to adhere, in view of the tendency displayed by the two-unit sole (Defendant's Exhibit H) to contact without the application of a solvent or cement, because it seems to me to be perfectly obvious. [5] This is not a case where the question of invention is in doubt and may be sustained by proof of commercial success, but, if it was, the evidence does not show that the crepe rubber soles of the plaintiff have supplanted all others, because it has sold 800,000 to 1,000,000 pairs of Rajah soles in three years and but 430,000 pairs of these in 1924, while the United States Rubber Company alone is making 6,000,000 to 8,000,000 pairs of vulcanized soles annually.

There is no evidence to show how many crepe rubber soles were sold by others, although Mr. Cutler says that the 430,000 Rajah soles sold by the plaintiff in 1924 is only a small proportion of the total number made by all, but the evidence does not show that the total number of crepe rubber soles made even

Whatever success crepe rubber soles have had, has been due to the inherent quality of the rubber and not to the method of the patent in suit.

No long-felt want was filled by the patent in suit as crepe rubber soled shoes were on sale in London in 1921, some were brought over to this country in the fall of 1921, both Mr. Cutler and Hanan & Son had the subject called to their attention in the spring of 1922, Hanan & Son completed the soles of Exhibits B and T by June 29, 1922, and the application for the patent in suit was filed October 4, 1922.

If, however, I am in error, and invention may be found in applying the process described in the patent in suit, then such patent was anticipated by Hanan & Son in their prior use in the manufacture of Exhibits B, E, and T, all of which were completed some time before the filing of the application of the patentee for the patent in suit.

The patent in suit is invalid, both for want of invention, and by reason of anticipation; but, even if it were valid, no infringement by the defendant Cantilever Shoe Shop, Inc., has been shown.

A decree may be entered as to both defendants, dismissing the complaint with costs.

THE TRINIDAD.

(District Court, D. Oregon. November 23, 1925.)

1. Salvage 48-Evidence held to show that master of libeled vessel accepted tug's services because of tug master's statement, which was not true.

On libel for salvage service, evidence held to show that master of libeled vessel accepted tug's services because of tug master's statement that tug was sent by vessel's owner, which was not true.

2. Salvage 13-Towage rendered vessel having broken tiller, but in no immediate danger, held not to justify claim for salvage

service.

Towage of vessel having broken tiller, but otherwise seaworthy, and in no immediate danger, rendered by tug without consent of vessel's owner, and because its master was misinformed by tugmaster, held not to justify claim for salvage service.

3. Towage 3-Vessel held liable for towage, where owner did not disavow service on being

informed thereof.

Where managing officer of owner of vessel, on being informed by radio that tug was assist10 F. (2d)-54

ing vessel, did not disavow services, but alfor towage, notwithstanding previous notice lowed it to continue, held that vessel was liable

that tug's services would not be required.

4. Towage 8-Evidence held to show that agreed rate for services of tug in towing vessel was $250 per day.

Evidence held to show that agreed rate for services of tug in towing vessel was $250 per day, as claimed by owner of vessel, and not $350, as claimed by charterer of tug.

In Admiralty. Libel by the Siletz Navigation Company against the steam schooner Trinidad; the Hammond Lumber Company, claimant. Decree for libelant.

Winter S. Martin, of Seattle, Wash., and Maurice W. Seitz, of Portland, Or., for libelant.

G. C. and A. C. Fulton, of Astoria, Or., for claimant.

Joseph, Haney & Littlefield, and John C. Veatch, all of Portland, Or., and Green & Wold, of Astoria, Or., for crew of tug Douglas.

BEAN, District Judge. This is a libel to recover compensation for salvage services alleged to have been rendered by the tug Douglas to the steamer Trinidad.

The Trinidad is a steam schooner, without wireless apparatus, engaged in the coastwise lumber trade, and is owned and operated by the Hammond Lumber Company, which

has offices in Portland and San Francisco. The libelant was, at the time the controversy arose, in the towing business with its principal office at Newport on Yaquina Bay, and had under charter from the owners the tug Douglas.

[1] On Tuesday, October 28, 1924, the Trinidad, while on a voyage from Grays Harbor to San Pedro with a cargo of lumber, encountered a southwest gale some 25 or 30 miles off the Oregon coast and south of Yaquina Bay. During the night of that day one of her stanchions parted, and her deckload shifted slightly. At 1 o'clock on Wednesday afternoon her tiller stock broke, so she was without steerage way, but in all other respects was staunch and seaworthy, and she was in no peril or immediate danger.

About 3 o'clock on the afternoon of Wednesday the steamer Oleum offered her assistance, which was declined. At the request of the master of the Trinidad, howthe Oleum sent a wireless message to the owners of the Trinidad at Portland, stating her condition, and requesting that a tug be sent to her assistance. The Oleum

ever,

stood by until word was received from her owners that the request would be complied with, when she proceeded on her way.

The Trinidad was also spoken by the Patrician some time Friday afternoon. The message from the Oleum to the owners of the Trinidad was picked up by the wireless operator of the tug Douglas, then lying at a dock at Yaquina Bay.

Mr. Noon, the manager of the libelant, was in Portland at the time, and was advised of the condition of the Trinidad, and that she was asking for a tug. About 10 o'clock in the evening he telephoned Mr. McLeod, the vice president and manager of the Hammond Lumber Company, and inquired whether he could be of any assistance, and, after some conversation between them, it was agreed that the Douglas should go to the assistance of the Trinidad for a stipulated rate per day for her services. Mr. Noon had some telephonic conversation with the master of the Douglas on the same day, concerning a proper charge to be made for the services of the tug. The Douglas was unable to put to sea on Thursday on account of the condition of the bar at Yaquina. McLeod was advised by Noon of that fact, and thereupon proceeded to make arrangements for another tug, and on Friday morning he called Noon by telephone, and told him that he did not want his tug, as he had arranged with the coast guard Algonquin to go to the assistance of the Trinidad.

Thereafter, and notwithstanding such information, Noon ordered the tug to sea to pick up the Trinidad, without informing its master that the arrangements with McLeod were off.

The Douglas left Yaquina early in the afternoon of Friday, and spoke the Trinidad some time between 8 and 9 o'clock on that evening, and a conversation was had between the masters of the two vessels. There is a conflict in the testimony as to what was said. The master, chief officer, engineer, and other employés of the Trinidad testify that, when the tug approached, the master of the Trinidad asked, among other things, "Who sent you," and the reply from the Douglas was "Your office in Portland," while the evidence on behalf of the tug is that the reply was, "From Portland."

I have carefully read and considered all the testimony in the case, and am clearly of the opinion that the weight of the evidence and the probabilities are with the Trinidad. The master of the Trinidad had an opportunity to obtain assistance from either the Oleum or the Patrician if he had so desired.

He did not ask for such assistance because he considered his vessel was in no peril, and he had been advised that the owners were sending a tug. It is but natural, therefore, that, before taking a line from the Douglas, he would want to know whether she had been sent by his owners, and the answer of the tug, "From your owners in Portland," was such as would naturally be given by it, since it knew of the negotiations for its services, and was not advised that they were off, and that its owner had been notified that its services were not required.

The master of the Trinidad, relying upon the information thus received, took a line from the tug. About 12 o'clock Friday night the Algonquin appeared, stood by until morning, when she attached a line to the stern of the Trinidad, and in charge of the two vessels she proceeded on her way, using her own power, arriving at Astoria about 1 o'clock on the afternoon of Sunday, November 2d.

On the next day, without any demand for payment or settlement, and without giving the owners an opportunity to pay without suit, this libel was filed by the Navigation Company for itself and on behalf of the general owner of the tug, her master, and crew, claiming the sum of $35,000 as salvage. The master and crew were not represented at the trial, and probably have abandoned any claim on their behalf. A receiver has been appointed for the Navigation Company, and apparently the only party interested in this litigation is the general owner of the tug, who was made a colibelant at the trial. [2] In my judgment this is not a salvage case. The services rendered by the tug were commenced by it against the wish and without the consent of the owners of the Trinidad, and because her master was misinformed as to the true condition of affairs. Neither the Trinidad, her cargo, nor the lives of her crew were in such danger as to justify a salvage service without the consent of her master or owner.

[3, 4] About 9:30 o'clock Saturday morning, McLeod was advised by radio that the Douglas was assisting the Trinidad. He did not disavow the service, but allowed same to continue, and therefore she is liable, I take . it, for a towage service. There is no evidence as to the value of such service other than what can be gained from the conversation between McLeod and Noon on Wednesday evening. Their testimony is in conflict. Noon says the rate agreed upon was $350 per day, while McLeod says it was $250.

Noon's conduct in the transaction in

GENERAL ELECTRIC CO. v. MINNEAPOLIS ELECTRIC LAMP CO. (District Court, D. Minnesota, Fourth Division. October 9, 1924.)

1. Patents 297(3)-Preliminary injunction will be granted, where there has been prior adjudication sustaining patent and infringement thereof in same or another circuit.

Where there has been a prior adjudication sustaining patent, and infringement thereof in same or another circuit, validity of patent being contested on full proofs, trial court should, upon motion for preliminary injunction, sustain patent, and leave question of its validity to be determined upon final hearing.

2. Patents 297 (7)—New matter, other than introduced in prior suits to sustain validity of patent, must be such as to lead court to believe patent would have been held invalid, in order to defeat preliminary injunction.

In order to defeat preliminary injunction, where patent has been sustained in same or another circuit, new matter relied upon must be of such character as to lead the court to believe that, had new matter been presented in former suit, patent would have been held invalid.

3. Patents 297 (7)-French court's decision, holding patent invalid, can only raise doubt as to validity where patent was held valid in another circuit which had before it French court's decision.

Decision of the French court, holding invalid French patent covering same invention as United States patent in suit can only serve to raise doubt as to validity of French patent, and is not new matter which might affect the issuance of preliminary injunction, in view of fact that French court's decision was before other United States courts which sustained the French patent.

4. Patents 297(7)-New matter set up with old, insufficient to have changed prior decision sustaining patent, will not defeat issuance of preliminary injunction.

Where so-called new defenses are in reality old defenses, and new matter set up with old would hardly be sufficient to have changed prior decision sustaining patent, such new defenses, although entitled to full consideration upon final hearing, will not defeat issuance of preliminary injunction.

5. Patents

235-Retaining principle and mode of operation and attaining result by use of same or equivalent mechanical means constitutes infringement, notwithstanding form has been changed.

One may not escape infringement by adding to or substracting from a patented device, by changing its form or by making it more or less

efficient, while he retains its principle and mode of operation, and attains its result by use of same or equivalent mechanical means.

6. Patents 328-1,018,502 and 1,180,159, claims 4, 5, 12, and 13, for incandescent lamp and bodies, held infringed.

Just and Hanaman patent, No. 1,018,502, for incandescent bodies for electric lamps, and Langmuir patent, No. 1,180,159, claims 4, 5, 12, and 13, for incandescent electric lamp, held infringed.

7. Monopolies 21-Violation of Anti-Trust Laws will not deprive right to maintain suit for infringement of patent.

Mere fact that party may be guilty of vio

lating the Anti-Trust Laws (Comp. St. § 8820 et seq.) will not deprive him of his right to maintain a suit for injunction on account of infringement of patent owned by him.

8. Equity ~65 (3)—Maxim, "He who comes into equity must come with clean hands," applies only to case where the unconscionable conduct of the plaintiff is directly connected with the subject-matter of the suit.

Maxim, "He who comes into equity must come with clean hands," applies only to case where the unconscionable conduct of the plaintiff is directly connected with the subject-matter of the suit.

9. Patents 283 (1)—Fact that patent owner had breached contract with defendant would not be defense to patent infringement suit.

Fact that owner of patent had breached contract with defendant would be no defense to patent infringement suit against defendant. 10. Patents 316-Defendant to patent infringement suit cannot compel plaintiff to perform contract which it had alleged was illegal and void.

Where counterclaim to patent infringement suit asks for relief that it be given right of purchasing from plaintiff according to contract, after having made allegation that sales made under such contracts were illegal and void, held that defendant had no valid cause of action to enforce such contract.

II. Patents~283 (1)—Counterclaim to patent infringement suit, which is legal and not equitable, cannot be set up.

Under new equity rule 30, counterclaim to patent infringement suit, which is legal and not equitable, cannot be set up.

liminary injunction granted, and motion to strike parts of answer granted.

Appeal dismissed 7 F. (2d) 1020.

Paul, Paul & Moore, of Minneapolis, Minn., Frederick P. Fish, of Boston, Mass., Hubert Howson, of New York City, Albert G. Davis, of Schenectady, N. Y., and H. A. Couse, of Cleveland, Ohio, for plaintiff.

Stanley S. Gillam, Rome G. Brown, and Whiteley & Ruckman, all of Minneapolis, Minn., for defendant.

BOOTH, District Judge. This is a suit for an injunction and for an accounting for damages and profits for infringement of two patents. The present hearing is upon a motion for a preliminary injunction, and has been heard upon bill and answer and a large number of affidavits and exhibits. The patents involved are United States patent No. 1,018,502, February 27, 1912 (application filed July 6, 1905), to General Electric Company for "incandescent bodies for electric lamps," known as the Just and Hanaman patent, and United States patent No. 1,180,159, April 18, 1916 (application filed April 19, 1913), to General Electric Company for "incandescent electric lamp," known as the Langmuir patent.

"5. An incandescent electric lamp having a filament of tungsten of large effective diameter and a bulb or globe therefor filled

with dry nitrogen at a pressure as high or higher than that corresponding to 300 millimeters of mercury, the filament being thereby adapted for operation at a temperature

higher than that which it would have if operated in a vacuum at an efficiency of one watt per candle."

"12. In an incandescent lamp, the combination of the lamp bulb, a tungsten filament therein, and a gaseous filling, the effective diameter of the filament being sufficiently large and the heat conductivity of the filling being sufficiently poor to permit the lamp to be operated with a filament temperature in excess of that of a vacuum tungsten lamp operating at an efficiency of one watt per candle and with a length of life not less than that of such a lamp.

a

"13. An incandescent electric lamp having closely coiled tungsten filament, the coil giving the effect of a filament of large diameter, an inclosing bulb and a filling of gas having a materially poorer heat conductivity than hydrogen and at a pressure as high or higher than 300 millimeters of mercury, the filament being adapted for operation in said gaseous filling at a temperature higher than

"1. A filament for incandescent lights, consisting of tungsten in a coherent metallic state and homogeneous throughout.

"2. A filament for incandescent lights, consisting throughout of substantially pure metallic tungsten of high fusing point and electrically conductive, the light-emitting properties of the filament being due to the coherent, homogeneous metallic nature of the tungsten.

"3. A filament for electric incandescent fights, comprising dense, coherent tungsten metal, having its fusing point approximately 3200° C. and capable of incandescent efficiency at the rate of less than one watt per candle power and substantially free from perceptible disintegration at that efficiency." The relied upon claims of the Langmuir patent are:

"4. The combination of a lamp bulb, a filling therein of dry nitrogen at a pressure materially in excess of that corresponding to 50 millimeters of mercury and a filament of tungsten of large effective diameter, the filament being thereby adapted for operation at a temperature higher than that which it would have if operated in a vacuum at an efficiency of one watt per candle.

vacuum at an efficiency of one watt per candle."

Both patents have been repeatedly held valid the Just and Hanaman patent in the Laco-Philips Case (C. C. A.) 233 F. 96; the Langmuir patent in the Nitro-Tungsten Case (D. C.) 261 F. 606, Continental Lamp Case (C. C. A.) 280 F. 846, the Incandescent Products Case (D. C.) 280 F. 856, the Brite-Lite Company Case (D. C.) 290 F. 967, the Nitrogen Electric Company Case (D. C.) 292 F. 384; and both patents, in the Alpha Case (D. C.) 277 F. 290, same case on appeal (C. C. A.) 280 F. 852, the Mallory-Save Cases (D.. C.) 286 F. 175, Id. (D. C.) 294 F. 562, same cases on appeal (C. C. A.) 298 F. 579.

[1] The rule to be applied in reference to the issuance of a preliminary injunction in cases of this character, has been laid down in this circuit in the case of Fireball Co. v. Commercial Co., 198 F. 650, 653, 117 C. C. A. 354, 357, as follows:

"It is an incontrovertible rule of equity jurisprudence that where there has been a prior adjudication sustaining a patent and an infringement thereof in the same or another circuit, where the validity of the patent has been contested on full proofs, the Cir