PATENTS. 



739 



salaries being asked for. The force has been 

 increased, in accordance with the Commission- 

 er's request in his report for 1885. The ar- 

 rears of work have been brought up, until but 

 four divisions are in arrears 100 days and up- 

 ward, and but one division 150 days. In con- 

 cluding the 1886 report, the Commissioner says : 

 " I feel so confident that changes and modifi- 

 cations, too numerous to be dwelt upon in de- 

 tail or to be pointed out in this report, of a 

 substantial character, which would materially 

 affect the prosperity and usefulness of this 

 office entire, are imperatively needed, that I 

 can not refrain from concluding by again urg- 

 ing upon Congress the necessity of providing 

 in some way, by commission or otherwise, for 

 a complete and exhaustive revision of the 

 entire legislation, and, probably, of the rules 

 which affect this office." 



Litigation. The most important trial in court 

 has been the hearing in the united Bell tele- 

 phone suits before the U. S. Supreme Court. 

 Five of the principal suits in which the Bell 

 Company had been complainant, and secured 

 judgments in the Circuit Courts, were heard 

 together, on appeal, before the Supreme Court 

 Bench. This is the first time the Bell patents 

 have come before this tribunal, and it will be 

 a matter of much interest to note the treat- 

 ment they will receive. The general tenor of 

 decisions in the Circuit Courts has been to in- 

 terpret patents fairly, and give them, as far 

 as possible, an equitable scope. In the Su- 

 preme Court the treatment continues as rigor- 

 ous as ever, and reissues are generally declared 

 invalid. We cite below a few of the points 

 brought out in the decisions of the different 

 courts, with volume and page of the " Official 

 Gazette," where reports can be found. One 

 decision, rendered in the April term of the Cir- 

 cuit Court for the Northern District of Ohio 

 (Fed. Rep., xxviii, p. 754), deserves a special 

 notice. In it the Court (Welker, J.) decided 

 that where a patent has been applied for on an 

 invention, the court has jurisdiction to grant 

 an injunction to restrain its infringement pend- 

 ing the hearing. Opinions of Justice Wash- 

 ington and of Justice Clifford were quoted in 

 support of this decision. The case is of special 

 interest as marking a liberal and equitable 

 treatment of one who has declared his inten- 

 tion of taking out a patent. The case is en- 

 titled Butler vs. Ball, and can be found in the 

 " Official Gazette," xxxviii, 4. 



Legislation. A number of attempts were made 

 to secure the passage of bills tending to curtail 

 the rights of patentees, but without success. 

 An enactment was passed, and has become law, 

 correcting certain defects in the law relating 

 to patents for designs. Under the old law the 

 Supreme Court held that in the case, for ex- 

 ample, of a carpet-manufacturer who com- 

 plained of an infringement of his design or 

 pattern of carpet, the complainant must clearly 

 prove what portion of the damage, or what 

 portion of the profit made by the infringer, 



was due to the use of the patented design. It 

 was practically impossible to make this show- 

 ing. Hence the infringer could imitate the 

 patented design without liability, and the law 

 was a nullity. Under the provisions of the 

 new law, the infringer is obliged to pay the 

 sum of $250 in any event; and if his profits 

 are more than that sum, he is compelled, in 

 addition, to pay all excess of profits above $250 

 to the patentee. It is believed that the pen- 

 alty of $250, irrespective of profits, will sup- 

 ply the amount, and will make the law pro- 

 tective and efficient. 



Decisions of Courts. The following are among 

 the most important decisions : 



Patent expiring during Proceedings, A suit in equity 

 was_ brought on May 5, 1885, on letters patent which 

 expired on June 16 following. There was service on 

 the defendants on May_ 7, but no steps were taken to 

 obtain a preliminary injunction ; the bill, however, 

 on its face disclosing a case cognizable in equity. Held 

 that the court would not dismiss the bill because of 

 the expiration of the patent. Dick vs. Struthers. 34, 1. 



Misuse of Words in Claim, It was insisted by the 

 defendant that the complainant's reissue was void be- 

 cause, in expressing the claim, the word " woof" was 

 used for "warp." Held, "Such a casual misuse of 

 words could not mislead any one who would read the 

 claim in connection with the drawings and speci- 

 fications of the patent, to which he is referred by 

 the words ' substantially as described.' " Keed vs. 

 Street. 34, 3. 



Combination Claim and Equivalents, A claim for a 

 combination of three elements is not infringed by the 

 use of only two of them where the omitted element 

 has a function of its own not performed by the ele- 

 ments used in the device claimed to infringe. . . . 

 An inventor who is only an improver, and not the first 

 in the art, is not entitled to invoke, broadly, the doc- 

 trine of mechanical equivalents so as to cover devices 

 not specifically claimed. Foley Furniture Company 

 vs. Colby, 34, 11. 



Expired Patent, Held, " That the court would in- 

 terfere after a patent had expired to restrain the sale 

 of articles manufactured previous to its expiration in 

 infringement of a patent right." N. Y. Belting and 

 Packing Co. vs. McGowan, xxxiy, 11. 



New Features in Infringing Device, If by the addi- 

 tion of certain elements a machine is constructed 

 which is properly the subject of a patent as an im- 

 provement, it does not follow that the original pat- 

 ented construction has not been appropriated. Tate 

 vs. Thomas, xxxv, 2. 



Feature claimed but not shown in Patentee's Earlier Pat- 

 ent, The fact that the complainant showed a feature 

 in an earlier patent did not of itself preclude him 

 from claiming it in a subsequent patent. Wilson . 

 Culley, xxxv, 2. Held, that reproduction of original 

 claims in reissues is not affected by lapse of time, and 

 that anticipations must be separately complete (Su- 

 preme Court decision). Yale Lock Manufacturing 

 Company vs. Sargent, xxxv, 3. 



Infringers limited in Proof of Infringement, While an 

 improvement upon an earlier patent may support a 

 valid claim, and is not inconsistent with such earlier 

 patent, one who infringes both the earlier patent and 

 the improvement upon it is not permitted to set up 

 the earlier patent as an anticipation of the improve- 

 ment patent (Supreme Court decision), Cantrell vt. 

 Wallick, xxxv, 7. 



Statutory Novelty, and New Use, The word " new " 

 in section 4886 Eevised Statutes means new to the 

 extent of requiring the exercise of the inventive fac- 

 ulties. . . . The statement of a new use of the article 

 not found in the original patent, but imported into a 

 reissue obtained after unreasonable delay, will not 

 confer validity upon a claim whose novelty rests upon 



