We concur fully with the opinion of the Circuit Court of Appeals for the Sixth Circuit as to the invalidity of the patent, and think it unnecessary to do more than to refer to it on that point. [2, 3] To justify a preliminary injunction on the other grounds the case ought to be very clear. Wright Co. v. Herring-Curtiss Co., 180 Fed. 110, 103 C. C. A. 31. Upon the question of copyright infringement and unfair competition, we think the case not clear. The District Judge said: "I do not think the books containing plates or the covers or other ornamentation of the catalogues of the defendant are sufficiently similar to those of the complainant to mislead the public, but the appearance of the plates themselves and the system of construction have been so deliberately taken from the complainant that they are misleading, and come within the decisions of Enterprise Co. v. Landers [C. C.] 131 F. R. 240; Yale & Towne Co. v. Adler, 154 F. R. 37 [S3 C. C. A. 149]; Rushmore v. Manhattan Works, 163 F. R. 939 [90 C. C. A. 299, 19 L. R. A. (N. S.) 269]; Prest-O-Lite Co. v. Davis, 215 F. R. 349 [131 C. C. A. 491].” The complainant cannot obtain a monopoly for all time of perforated plates of the lengths having equidistant holes and intervening spaces which it first used. These are functional features of the units of construction which any one is at liberty to use. Of course it cannot claim a monopoly of constructing the particular models or toys which it has made, as, for example, wheelbarrows, bridges, cranes, Ferris wheels, trucks, etc. Assuming that the public associates plates of this description with the complainant as a source, and that there is likely to be confusion because of similarity of the outfits, it is a question whether it is entitled within the decision of the Supreme Court in Singer Co. v. June, 163 U. S. 169, 16 Sup. Ct. 1002, 41 L. Ed. 118, to more protection than that outfits made by others should be advertised and sold as the product of the makers under names and in packages which do not simulate the complainant's. This is true of the outfits which the defendant sells. The name of the complainant's is "Meccano" and of those sold by the defendant "American Model Builder." They are advertised as made by the American Mechanical Toy Company, and sold in dissimilar packages. So in the nature of things, the constructing elements and the things constructed being the same, the plates illustrating them and the instructions contained in the manuals furnished with the two outfits must be more or less alike. All that should be required of other makers is to do independent work. [4] When it comes to the charge of actually palming off, the evidence is insufficient to justify a preliminary injunction. The defendant has of course the right to sell as much as it can of the outfit which gives it the greatest profit, and to press that outfit upon its customers as against the other. The testimony of Patterson, one of the defendant's employés in Philadelphia, on which the complainant relies, goes no further than this. As to the Koenig sale in Philadelphia in 1912 and the Scott and Lewis incident in New York in 1916, it is to be observed that in each case the purchaser asked for the American Builder models and got them. In the former case it is said the salesgirl described the American Builder as the new "Meccano" to Koenig, and in the latter the salesgirl by perhaps an error in the sales slip described it as "Meccano." The American Model was not palmed off on the purchaser as the Meccano in either case. The order is reversed. LEARNED HAND, District Judge (dissenting). The plaintiff, by the Ohio decree which has been affirmed, has now established its right to terminate Wagner's competition. The decree not only creates this right, but imposes an obligation upon Wagner with the usual sanctions. Wanamaker now knows of the decree, for the plaintiff has laid it as part of the gist of this suit, as the basis of its relief herein. Whenever in the future Wanamaker orders toys from Wagner it will solicit a sale which is in direct violation of the decree. If the order be given within the territory of the Ohio court it will be a contempt of the decree, as well as Wagner's sale. Outside of that territory it will be no less a violation of the rights of the plaintiff, quite independently of how we might ourselves view the transactions out of which the Ohio decree proceeded. I apprehend that it makes no difference whether the obligation which a third party procures the obligor to violate be created by judgment or by contract; any one who contributes to that violation commits a tort. As to the toys which it buys of Wagner, Wanamaker, therefore, will commit such a tort against the plaintiff in the future, and should be enjoined, regardless of what relief we might have given the plaintiff upon the same state of facts. Of course, as we held in the earlier case, Wanamaker must have its day in court upon its own right to make and sell the toys or to buy them of others. The Ohio decree is in no sense an estoppel against Wanamaker, and we may not enjoin it on the principle of an estoppel; it has never been heard, and it must have its hearing. But so far as the facts appear at present it is only buying its toys of Wagner, and I think the plaintiff has established its right by the mere force of that decree to prevent Wanamaker from inducing Wagner to violate it. This question we reserved in the earlier decision, it comes up now and cannot be avoided; I would solve it in the plaintiff's favor. Kessler v. Eldred, 206 U. S. 285, 27 Sup. Ct. 611, 51 L. Ed. 1065, is a case of somewhat the same character. There Eldred, a patentee, sued Kessler, who succeeded on the issue of noninfringement. Later he sued one of Kessler's customers in another district, and Kessler was forced to intervene and protect him. While that suit was pending Kessler sued Eldred to procure a general injunction against him from litigating again the issues determined between them in the original suit, and the court enjoined Eldred. It seems to me there is no substantial difference between Kessler's right in that case, which was his "good-will" ("universitas"), and the specific right established in this case in the plaintiff's favor against Wagner. I dissent. (250 Fed. 454) THE FILER & STOWELL CO. v. DIAMOND IRON WORKS. (Circuit Court of Appeals, Seventh Circuit. January 2, 1918. Rehearing Denied February 8, 1918.) No. 2516. 1. PATENTS 177--CONSTRUCTION-CLAIMS. While it is improper to import into any combination an element not found therein, the court is justified, when the intention is clear, in giving to modifying words and phrases a significance ascertainable only by reference to the description. 2. PATENTS 328-VALIDITY-MILL REFUSE CUTTER. The Dittbenner patent, No. 777,779, for a mill refuse cutter or mill hog, for cutting up slabs and edgings and other refuse from mills and furniture factories in fine wood for burning, held valid as to claims 3, 4, and 6. 3. PATENTS 328-INFRINGEMENT-MILL REFUSE CUTTER. The Dittbenner patent, No. 777,779, claims 3, 4, and 6, for a mill refuse cutter or mill hog, held infringed; the differences in defendant's device being of form merely. Appeal from the District Court of the United States for the Eastern District of Wisconsin. Suit by the Diamond Iron Works against the Filer & Stowell Company. From a decree for complainant (241 F. 498), defendant appeals. Affirmed. From a decree sustaining claims 3, 4, and 6 of patent No. 777,779, and adjudging each of the three claims infringed by appellant, this appeal is taken. The patent pertains to a "mill hog," used in sawmills, etc., for cutting slabs and edgings into fine wood. The product can be readily burned, no matter how green the wood. The machine under consideration consists of a large revolving power cylinder carrying knife blades, which brace the wood against stationary anvil knives. The wood enters at the top through a large centrally located hopper. Patentee claims to be the first to produce a "hog," where the cutting operation is somewhat similar to cutting by shears. The three claims involved are 3, 4, and 6, which read as follows: "3. In a machine of the character described, the combination with a case and an inclosed rotary cutter head, of an anvil knife supported by said case, and co-operating knives carried by said cutter head, the said knives being arranged to pass at an angle, and to cut with a drawing, shearing action, substantially as described. "4. In a machine of the character described, the combination with a case having an interior V-shaped anvil-block and diverging anvil knives applied to said anvil-block, of a pair of diverging conical disks, affording a cutter-head, rotatively mounted, within said case, and disk-knives carried by said disks and co-operating with said anvil knives, the cutting edges of which disk knives radiate from the axis of said disks, and the cutting edges of which anvil knives lie in a plane extending tangentially to a circle struck from the axis of said disk, whereby the said knives co-operate to cut with a drawing, shearing action, substantially as described." "6. In a machine of the character described, the combination with a case having a centrally located feedhopper and a pair of segmental doors or case sections, on opposite sides of said hopper, one of said case sections being adjustable and having anvil knives adjustably secured thereto, and a cutter For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes head rotatively mounted in the said case and having knives co-operating with said anvil knives, substantially as described." F. E. Dennett, of Milwaukee, Wis., for appellant. F. A. Whiteley, of Minneapolis, Minn., for appellee. Before BAKER, ALSCHULER, and EVANS, Circuit Judges. EVAN A. EVANS, Circuit Judge (after stating the facts as above). Dittbenner claims to have made a distinct contribution to the art in at least three respects. He located the hopper centrally, thereby eliminating the services of an operator, and through the force of gravity increased the capacity of the machine. He located the anvil knife, appropriately constructed, in one of the movable sections of the case, thereby making it easy to remove for sharpening or adjustment. He substituted this anvil knife for the bed plates in the throat of the hopper in the prior art construction. He so located the anvil, the anvil knives, the hopper and the cutter head carrying a plurality of knives, which co-operated with the anvil knives in such way as to give a shearing effect. The alleged net result was the elimination of a man, the increase in the capacity of the machine, and the reduction of power necessary to accomplish the same amount of work. That such a contribution constituted invention is not open to serious doubt. [1, 2] It is claimed, however, by appellee, that the claims of the patent in suit are invalid because anticipated, and that appellee's structure does not infringe. The following figures illustrate the structures represented by the prior art, relied upon in this case: |