mechanism at the lower end of the plunger. The patent has never been adjudicated, and there are no unusual considerations to justify making this case an exception to the rule that the complainant must prove a clear case to warrant the issuing of a preliminary injunction. To sustain a charge of infringement against defendant's device, the three claims in controversy would have to be given a broad construction; and this, too, despite the presence in the art of earlier patents in which, apparently, Larsson had found the source of his operative parts. From his study of the case the District Judge reached the conclusion that the inventive thought described in the claims is not employed in defendant's structure. We do not think it necessary to discuss this proposition, because the record at final hearing may be fuller than this one; but we fully concur with the conclusion, also expressed by the District Judge, that, whatever be the result on final hearing, the complainant's contention that defendants' structure infringes is by no means so clear as to warrant the issue of a preliminary injunction on an unadjudicated patent. The order is affirmed, with costs. SAYRE et al. v. MCGILL TICKET PUNCH CO. No. 30,472. 1. PATENTS (§ 310*)-INFRingement-PLEADING MULTIFARIOUSNESS. Where the same acts constitute both infringement of a patent and unfair competition, causes of action for each may be joined in the same bill, and will not render it multifarious. [Ed. Note. For other cases, see Patents, Cent. Dig. §§ 507-540; Dec. Dig. § 310.*] 2. TRADE-MARKS AND TRADE-NAMES (§ 92*)-SUIT FOR UNFAIR COMPETITION -SUFFICIENCY OF BILL. Injunctive relief in a case of unfair competition by imitating a patented article should not be decreed for any acts which would not constitufe unfair competition after the patent has expired, and where a suit for such unfair competition is joined with one for infringement, the bill must disclose a fraudulent appropriation of those insignia or arbitrary features of the device, which do not enter into the question of infringement. [Ed. Note. For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 102, 103; Dec. Dig. § 92.* Unfair competition in use of trade-mark or trade-name, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.] 3. TRADE-MARKS AND TRADE-NAMES (§ 68*)-"UNFAIR COMPETITION." "Unfair competition" is the passing off, or attempting to pass off, upon the public the goods and business of one as being the goods and business of another. [Ed. Note. For other cases, see Trade-Marks and Trade-Names, Cent. Dig. 79; Dec. Dig. § 68.* For other definitions, see Words and Phrases, vol. 8, p. 7174.] 4. WORDS AND PHRASES "PALM OFF." To "palm off" means to impose by fraud; to put off by unfair means (citing 6 Words and Phrases, p. 5159). For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes In Equity. Suit by Louis A. Sayre and Howard A. Sayre, individually and as partners under the firm name of L. A. Sayre & Son, against the McGill Ticket Punch Company. On demurrer to bill. Sustained in part. Minturn & Woerner, of Indianapolis, Ind., for complainants. KOHLSAAT, Circuit Judge. Demurrer to amended bill. The bill, as amended, charges infringement of certain letters patent for ticket punch, also that defendant "is guilty of unfair competition in trade, in that it has not only copied the element (elements) of the patented device, but the very form of it, taking advantage of the trade which has been worked up by the complainants for it, and palming off its own product upon the public as that of your orators, and is continuing and threatens to continue said unlawful acts, * has copied and is now copying, and threatens to continue to copy, the cuts and illustrations and printed matter of complainant, * * * and has placed no distinguishing mark, name, or address on its said ticket punches to indicate that they were made by the defendant, and because of each and all of the matters above complained of the trade and customers of complainant have been and will be led to believe that the ticket punches sold by defendant are made under said patent No. 698,820, and are of the same quality as the ticket punches made and sold by complainants. * * Two grounds of demurrer are urged: (1) That the bill is multifarious, in that it joins a charge of patent infringement with one of unfair competition; and (2) that the allegations of the bill are not sufficient to sustain a charge of unfair competition. [1] The objection of multifariousness has not been seriously pressed; defendant granting its reply brief "that, where both matters arise out of the same acts and transactions," the objection does not lie, citing Havens v. Burns (C. C.) 188 Fed. 441, and not attempting to deny that both matters do arise out of the same transactions. There seems to be no good reason why both charges cannot be conveniently passed upon in a single suit at less expense and annoyance to both parties than if divided. Harper v. Holman (C. C.) 84 Fed. 222. [2] The greater part of the argument has been directed to the alleged insufficiency of the allegations of unfair competition; defendant contending that: "Likeness in mechanical elements, or even in the form of an article, does not suffice to predicate a charge of unfair competition in trade." The rule contended for cannot be admitted without qualification: If a complainant should allege that it manufactured a patented device in a peculiar, arbitrary, or fanciful form (not necessarily such as might be protected by a design patent), and that such form had become known to the purchasing public as indicating the origin or source of manufacture, it can hardly be doubted that the allegation would be sufficient to sustain a charge of unfair competition against one who copied such peculiar and distinctive form. But complainants have not alleged that the distinctive form in which their patented device is said to have been manufactured had become generally known to the trade as indicating goods of complainants, nor have they distinctly alleged that the copying by defendant of the form of their device results in confusion in the public mind as to the identity of the source of manufacture of the goods. [3, 4] It would seem that the allegation that defendant is "palming off its own product upon the public as that of your orators" might be a sufficient charge of unfair competition, for unfair competition is defined as: "Passing off, or attempting to pass off, upon the public the goods or business of one man as being the goods or business of another" (28 Am. & Eng. Ency. of L. [2d Ed.] 409, citing C. F. Simmons Medicine Co. v. Mansfield Drug Co., 93 Tenn. 84, 23 S. W. 165), and "to palm off' means to impose by fraud; to put off by unfair means (Words and Phrases Judicially Defined, vol. 6, page 5159, citing Hobart v. Young, 63 Vt. 363, 21 Atl. 612, 12 L. R. A. 693). " But complainant, summarizing the effect of the alleged wrongful acts, says: "Because of each and all of the matters above complained of [i. e., copying the form of the device, palming off, etc., copying cuts, illustrations, and printed matter, failing to place on its goods any distinguishing mark] the trade and customers of complainant have been and will be led to believe that the ticket punches sold by defendant are [not of complainant's manufacture, but] made under said patent and are of the same quality * * as the ticket punches made and sold by complainants. If the only effect of the acts complained of is that the public is led to believe that defendant's punches are made in accordance with complainants' patent, and are as good as those manufactured by complainants, it is clear that there is no confusion in the public mind as to the source of manufacture of defendant's goods, and consequently there is no unfair competition. The allegations. of the bill as to unfair competition call for no redress other than that which would be granted in a determination of the question of infringement. Injunctive relief in a case of unfair competition is not a cumulative remedy with infringement. It should not be decreed for any acts which would not constitute unfair competition after the patent had expired. When combined with a suit for infringement, as here, it must disclose a fraudulent appropriation of those insignia or arbitrary features of the device of the patent which do not enter into the question of infringement, but which are used to gain for the manufacturer and seller a reputation and good will, aside from the patent monopoly. It would reach advertising matter calculated to deceive in that respect. Therefore, while it is conceivable that the two causes of action may be joined, practically there would seem to be little need of resorting to such practice. In the present case, as stated, were the injunction granted, it would, theoretically, at least, have the effect of prolonging the monopoly of the patent, whether sustained or not, for an unlimited period. As was said by the court in Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169, 16 Sup. Ct. 1002, 41 L. Ed. 118: "It follows as a matter of course that on the termination of the patent there passes to the public the right to make the machine in the form in which it was constructed during the patent." That "form," it seems reasonable to conclude, would cover the essential, but not the arbitrary, characteristics (as ornamentation, etc.) of the device, the appropriation of which would indicate an intention to convey the impression that the new article was the actual product of the patentee that its workmanship was the result of his skill and carefulness. It is thus evident that the demurrer to so much of the bill as seeks to restrain unfair competition is well taken. The demurrer is sustained. PETERS v. CHICAGO BISCUIT CO. et al. (District Court, N. D. Illinois, E. D. October 3, 1912.) PATENTS (8 328*)-NOVELTY-PACKAGE FOR BISCUITS. The Peters patent, No. 621,974, for a method of and means for packing biscuit, crackers, and the like, the package consisting of a carton, having an interfolded lining of wax or paraffine paper to exclude the dust and moisture, is void for lack of patentable novelty, in view of the prior art. In Equity. Suit by Frank M. Peters against the Chicago Biscuit Company, Augustus B. Crossman, Michael J. Flanagan, and Michael J. Hogan. On final hearing. Decree for defendants. Charles K. Offield, of Chicago, Ill., Earl D. Babst, of New York City, and Offield, Towle, Graves & Offield, of Chicago, Ill., for complainant. Paul Bakewell, of St. Louis, Mo., and P. C. Dyrenforth, and W. W. Gurley, both of Chicago, Ill., for defendants. KOHLSAAT, Circuit Judge. This cause is now before the court on final hearing. The bill charges infringement of patent No. 621,974 for method of and means for packing biscuit, crackers, or the like, granted to F. M. Peters March 28, 1899, the four claims of which read as follows, viz.: "1. The herein described method of packing biscuit, crackers, or the like, which consists in completely enveloping the same in an uncut or continuous lining or protective sheet and an outer sheet or blank of heavier, but flexible, material provided with marginal flaps, by superposing the lining or protective sheet upon the blank and then simultaneously folding both said sheet and said blank by the aid of a suitable former into the form of a box or carton, overlapping and tucking said flaps during said folding and thereby interfolding the marginal portions of the lining or protective sheet with the flaps of the blank and securing the flaps to hold the package closed, substantially as described. "2. The herein described box or carton for crackers, biscuit, or the like, comprising an internal lining composed of a sheet of protective paper completely enveloping the contents, and an outer sheet of heavier, but flexible, material having overlapping and interlocking flaps with which the marginal portions of the lining sheet are interfolded, substantially as described. "3. The herein described box or carton for biscuit, crackers, or the like, comprising an internal protective lining composed of a single continuous or unbroken sheet of material, such as waxed paper, and an external covering of heavier, but flexible, material suitably cut and scored to provide overlapping and tucking flaps, said sheets being adapted to be simultaneously folded while one is superposed upon the other, and said flaps being overlapped and tucked and the marginal portions of the lining interfolded therewith and For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes the package thereby secured without extraneous fastening means or perforating the lining, substantially as described. "4. The herein described box or carton, comprising an internal protective lining composed of a single continuous or unbroken sheet of material, such as waxed paper, and an external covering of heavier.material suitably cut and scored to provide overlapping and tucking flaps, and said lining sheet being of such dimensions as to provide a top fold adapted when folded to afford a triangular flap of greater length than the width of the box, and to be engaged by the top flap of the external covering and pass therewith into the space between the edges of the front of the covering and the lining sheet, said flaps being overlapped and tucked and the marginal portions of the lining interfolded therewith, and the package thereby secured without extraneous fastening means or perforating the lining, substantially as described." In brief, the patent covers the method of packing biscuit, etc., in a carton formed by imposing upon any of the well-known suitable forms for a folding box, including a top or cover, an uncut, flexible sheet of wax or paraffine paper, and then interfolding the form and uncut sheet together in the usual manner of folding cartons, so that the wax or paraffine paper will form a complete and unbroken lining to the carton, and the two become a unitary packing box. The patent also covers the packing box thus obtained. The patent in suit was sustained by the Circuit Court for the Eastern District of Missouri. Peters v. Union Biscuit Co. (C. C.) 120 Fed. 679. On appeal the Circuit Court of Appeals held it invalid. 125 Fed. 601, 60 C. C. A. 337. Suits were afterward brought in the Southern district of New York, the district of Connecticut, and the district of Indiana, in all of which such action was had as that the validity of the patent was sustained. In these cases, however, the decrees were entered without contest. In the present case, commenced August 24, 1905, it was sought to have the court dispose of the cause on demurrer, which motion was denied. The record now before the court is in many respects new, and apparently very full, so that complainant is entitled to an independent investigation of the facts and the law, notwithstanding the results of other litigations, except in so far as the latter bear persuasively upon the facts now before the court. The defenses interposed are: (1) Want of invention; (2) noninfringement. The object sought in the use of the inner lining is the approximate exclusion of air, moisture, dirt, and insects. This end is in practice further accomplished by complainant's practically exclusive licensee, the National Biscuit Company, by the use of an outer sealed wrapper or envelope, entirely inclosing the package and contents. This wrapper, the patentee asserts, is mainly for advertising purposes, by the licensee. It is not claimed that a package formed with a wax or paraffine paper lining is new, but it is insisted by complainant that the combination of such a lining with, and adjusted to, the forms or blanks prepared for use in constructing completely inclosed cartons in such a manner that the lining shall interlock with the slits, tongues, and flaps of the form, notwithstanding it be itself uncut, is new. With reference to the prior art, a number of patents have been placed in evidence, which defendants assert disclose whatever of patentable novelty may otherwise have existed in complainant's concept. On examination of defendants' expert, six of these were selected as |