(Circuit Court, D. Massachusetts. August 12, 1889.)

PATENTS FOR INVENTIONS-INFRINGEMENT-PRELIMINARY INJUNCTION. Where it appears, on a bill to restrain the infringement of a patent by mak ing and selling duplicate parts of the patented machine, that defendants had been accustomed to make duplicate parts for plaintiff and its assignors, and to repair the patented machine for others, of which plaintiff was aware, a preliminary injunction should be denied.

In Equity. Motion for preliminary injunction.

C. F. Perkins, for complainant.

T. W. Porter, for defendants.

COLT, J. This is a motion for a preliminary injunction. The defendants are charged with infringing three patents, Nos. 200,682, 220,906, and 273,931, issued to Christopher Amazeen, for improvements in leather-skiving machines. The defendants carry on a general machineshop, and they repair Amazeen skiving-machines, and they are charged in this suit with having repaired or rebuilt a second-hand machine, and with having duplicate parts of these machines on hand for sale. It appears in evidence that for years a number of firms besides these defendants, in Boston and elsewhere, have dealt in various parts of the Amazeen machine. It appears by the affidavit of John Walker, of Boston, that he was formerly a member of the firm of Eddy, Sherman & Co., and became acquainted with Amazeen in 1879; that the firm then began making machines for Amazeen, and that they also made all the duplicate parts that were required to replace those worn out in old machines; and that they not only supplied Amazeen with all such parts as he required for his customers, but also sold such parts on their own account, with full knowledge of Amazeen himself, to their customers or to whoever called for them. Afterwards Amazeen sold out his patents to Dorr & Eaton, and they continued to buy duplicate parts of Eddy, Sherman & Co., and to send machines to them to be repaired, and they still continued to make it a regular part of their business to keep a stock on hand and sell generally duplicate parts of the machine. On their billheads was printed the fact that they made and dealt in the parts of the machine. Subsequently Dorr & Eaton sold the patents to the complainant, and its manager, Mr. Bailey, often sent machines to Walker, who was then doing business by himself, for repairs. Walker produces 19 letters from Bailey, ordering repairs of different machines, and he swears that Bailey knew that he was making and selling duplicate parts of the Amazeen machines. On the bill-heads which Walker rendered was a printed notice that he repaired these machines. I am aware that Bailey, the complainant's agent, denies any knowledge until shortly be fore this suit was brought that any party was selling to the public parts of the Amazeen machine. However this may be, it is clear from the evidence that numerous parties in Boston, from the time the Amazeen

machine came into general use, have openly and publicly furnished to their customers duplicate parts of the machine for the purposes of repair. What effect, if any, this may have upon the case at final hearing I do not decide; but I do not think, under these circumstances, the court should grant a preliminary injunction. The Amazeen patents are for improvements in skiving-machines. These machines are made up of various elements in combination. It cannot be denied that a good many of the working parts of the machine were replaced in the alleged infringing machine repaired by the defendants. Bearing in mind, however, the character of the Amazeen patents, I am not prepared to decide, upon the papers before me, whether, under the law governing this class of cases, the machine had so far lost its identity or had been so reconstructed that the defendants should be held as infringers. Manufacturing Co. v. Foundry Co., 34 Fed. Rep. 393, and cases cited. Without expressing any opinion upon the merits of the case, which will properly come up at final hearing, I am of opinion, for the reasons given, that the complainant is not entitled to a preliminary injunction. Injunction denied.


(Circuit Court, S. D. New York. August 15, 1889.)


Where a master reports that the profits of defendant derived from the infringement of plaintiff's patent cannot be computed from the evidence, nominal damages only can be assessed, though it is apparent that there were profits.

In Equity. Application for assessment of damages for infringement of patent.

Edmund Wetmore, for plaintiff.

Livingston Gifford, for defendant.

WHEELER, J. This cause has now been heard upon the supplemental report of the master as to profits of the defendant from infringement of the plaintiff's patent. The substance of the report, as it now stands, is that from all the evidence before the master the amount of such profits "cannot be computed or determined." Therefore, while that there were some profits is apparent from the report, no definite extent of them attributable to the infringement for which the defendant is chargeable appears. There is no foundation for a decree for the payment of anything beyond merely nominal damages. Fischer v. Hayes, 22 Fed. Rep. 529; Garretson v. Clark, 111 U. S. 120, 4 Sup. Ct. Rep. 291; Black v. Thorne, 111 U. S. 122, 4 Sup. Ct. Rep. 326; Dobson v. Carpet Co., 114 U. S. 439, 5 Sup. Ct. Rep. 945. No exceptions are filed to the report, and the only question is as to what is a proper decree upon the facts stated.

Report accepted and confirmed, and decree thereupon ordered for the payment by defendant to the orator of six cents profits as damages, with



(Circuit Court, D. Maine. August 16, 1889.)


Reissued letters patent No. 10,418, dated December 4, 1883, issued to A. Russell and F. Curtis for improvement in ships' pumps, claimed as the principal improvement a barrel whose length was less than its diameter, making it easily lined. Defendant's pump had a barrel whose length was considerably in excess of its diameter. Held, that the absence of this marked feature throws so much doubt on the question of infringement that a preliminary injunction will not be granted.

2. SAME.

Neither will it be granted where another claim is for a bucket externally dome-shaped, that is, having the form of an inverted cup, where defendant's bucket is not dome-shaped, and differs in other particulars.

In Equity. Motion for injunction.

C. C. Powers and C. Hall, for complainant.

W. L. Putnam and Livermore, Fish & Richardson, for respondent.

COLT, J. This is a motion for a preliminary injunction. The defendant is charged with infringing claims 5, 10, 11, 12, 13, and 14 of reissued letters patent No. 10,418, dated December 4, 1883, issued to Albert Russell and Francis Curtis for improvements in ships' pumps. The patent has already been before this court. Russell v. Laughlin, 26 Fed. Rep. 699. The main ground of defense to the present motion is non-infringement. The Russell pump is constructed with a barrel whose length is less than its diameter, which makes the pump short and easily lined, and this is one of the principal improvements described in the patent. The specification says:

"It is a part of said [invention] to produce a piston or bucket pump which is of good capacity, yet quite short, which is attained by making the barrel of large diameter in proportion to its length. This is a very desirable feature of the invention, since such a pump may be lined most successfully, as hereinafter set forth, and is particularly suitable for ships, where it is important that as much of the pump as possible be above deck, * ** and yet not of great height, for convenience in operation and keeping in order."

In the last five claims of the patent, which the defendant is charged with infringing, one of the main elements is a piston pump, having a barrel whose length is not greater than the diameter thereof. Now the Hyde pump does not have this special feature, because the barrel is there found to have a length considerably in excess of its diameter. Without going into less important differences, the absence of this marked feature in the defendant's pump throws so much doubt on the question of infringement that I am satisfied no preliminary injunction should be

granted respecting these claims. The theory of the plaintiff that the pump barrel of the patent means the working pump barrel, and that the Hyde barrel is like the plaintiff's because it has a bore whose working length for the bucket is not greater than its diameter, I cannot accept, because it is contrary to the plain meaning of the words, and inconsistent with the language of the specification. Nothing is said in the specification about the working length of the barrel not being greater than the diameter thereof; on the contrary, the specification states that the barrel is made short, so that it may be successfully lined, and for general convenience on ship-board. The construction contended for would be doing violence, not only to the ordinary meaning of the language used, but to the plain intention of the patentees.

The fifth claim remains. The feature of the pump covered by this claim consists of a bucket externally dome-shaped; that is, having the exterior or upper surface of the annular part turned down outwardly, so as to bring the outer edge and packing at or near the bottom of the bucket. By this arrangement it is said the pump may be made very short, and the bearing of the bucket or packing is in the best position for working evenly. The proceedings in the patent-office, on the taking out of the original patent, seem to limit this claim to a bucket which is dome-shaped. By "dome-shaped" is meant something having the form of an inverted cup or half globe. The defendant's bucket is not domeshaped, and in some other particulars it differs from the Russell bucket. These differences raise grave doubts on the question of infringement. Upon the facts presented in this case I am satisfied the present motion should be denied.


(District Court, E. D. Pennsylvania. June 25, 1889.)


In the absence of a statute providing a maritime lien for damages caused by the personal injuries and death of one engaged in loading a vessel, a libel in admiralty to recover damages for such injuries and loss cannot be sustained. The Harrisburg, 119 U. S. 199, 7 Sup. Ct. Rep. 140, followed.

In Admiralty. On motion to dismiss libel.

Action by Bridget Welsh, widow of Peter Welsh, on her own behalf and that of her minor children, Mary Welsh and Bartholomew Welsh, against the steam-ship North Cambria, for damages resulting from the injury and loss by death of Peter Welsh while unloading the cargo of the vessel.

Alfred Driver and J. Warren Coulston, for libelants.

E. B. Convers, for respondents.

BUTLER, J. The question of jurisdiction is raised on this motion by consent. That the libel cannot be sustained independently of statutory

provision, is settled by The Harrisburg, 119 U. S. 199, 7 Sup. Ct. Rep. 140. That the Pennsylvania statute, on which the case is put, does not create an admiralty lien, and thus authorize the seizure, seems entirely clear. There is nothing whatever in the statute indicative of a purpose to create such a lien, and if there was I would hold the statute to be inoperative in this respect. The states have no power, I believe, to interfere with the admiralty system of laws; they can add nothing to it, nor take anything from it. The subject lies within the exclusive domain of congress. It is true that the supreme court has held that, as respects pilotage and a few other subjects, the states may exercise powers vested in the federal government until the latter assumes the exercise of its authority. The disfavor, however, with which this (apparently illogical) doctrine-born, doubtless, of the excessive tenderness which formerly existed respecting "state rights"-is regarded to-day, justifies a very confident belief that it will not be extended beyond the subjects to which it has been applied. To this doctrine must be ascribed the decision i..' The Lottawanna, 21 Wall. 580; that liens created by state statute for the repairs of vessels, etc., in home ports, within the state, may be enforced by admiralty courts. As this court held, however, in The E. A. Barnard, 2 Fod. Rep. 712, such statutes do not create an admiralty lien, or engraft any new provision upon the system of admiralty laws. The court in such case has jurisdiction, as the debt arises from an admiralty contract; and The Lottawanna decides no more than that the state may make this debt a lien for the purpose of securing and regulating distribution between its own citizens, in the absence of provision respecting it by congress. Even this is acknowledged to be anomalous, and is put upon "long usage," rather than any well-defined principle. The views of this court on the subject generally are stated in The E. A. Barnard, above cited. I will not repeat them. They are as applicable here as they were there.

The decision of the district courts respecting the subject are not harmonious. In The Sylvan Glen, 9 Fed. Rep. 335, and The Manhasset, 18 Fed. Rep. 918, the state statutes were denied effect in the admiralty. This view is also supported by the judgment in The Vera Cruz, L. R. 10 App. Cas. 59. In other instances the question has been decided differently. It has been so fully discussed in the cases cited that I will not enlarge upon it. Libel dismissed.

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