The patent has already been twice considered by this court, and held to disclose patentable invention only in the particular means shown for attaching the springs to their support. These means comprise four perforations in an arched metallic support, through which the lower end of the spring is screwed; these perforations being all in the same horizontal plane, the spring-end is thereby distorted and the spring securely locked in place by the top and bottom friction induced by the rise of the spiral. Murray v. D'Arcy Co., 161 Fed. 352, 88 C. C. A. 364; Murray v. Detroit Wire Spring Co., 206 Fed. 465, 124 C. C. A. 371. In the D'Arcy Case defendant was held not to infringe because the locking means of the patent in suit were absent. In the Detroit Spring Company Case defendant was held to infringe because it employed those means. In the instant case, while the lower coil of defendant's spring is inserted through four perforations in the arched strip, these perforations are not in the same horizontal plane; on the contrary, the difference between the horizontal planes of the two sets of perforations is the same as the rise of the spiral. There is thus no appreciable distortion of the spring due to its entering the support; and it is not held in position by the friction due to the rise of the spiral, for there is no such appreciable friction. The spring is required to be locked in position by compressing the lower coil of the spring against the support. Defendant's device thus lacks the characteristic feature of complainant's device, constituting its only claim to patentability. The district court properly held that defendant does not infringe. It becomes unnecessary to consider the alleged new anticipatory ref erence. The decree of the district court is affirmed, with costs. (234 Fed. 93) BURKE ELECTRIC CO. v. INDEPENDENT PNEUMATIC TOOL CO. (Circuit Court of Appeals, Second Circuit. May 16, 1916.) No. 117. PATENTS 76—VALIDITY-PRIOR SALE-RESALE “ON SALE." Within Rev. St. § 4886 (Comp. St. 1913, § 9430), denying patents for an article which has been on sale for more than two years prior to the application, articles for which a patent is sought, on hand ready to be delivered to any purchaser, are "on sale," regardless of whether any of them are sold; but where orders are taken only for subsequent delivery, the article is not on sale at that time, though the invention be complete. [Ed. Note. For other cases, see Patents, Cent. Dig. §§ 92, 98; Dec. Dig. 76. For other definitions, see Words and Phrases, Second Series, On Sale.] Appeal from the District Court of the United States for the Southern District of New York. On petition for rehearing. Petition denied, and former opinion affirmed. For former opinion, see 232 Fed. 145, 146 C. C. A. 337. Dyer & Taylor, of New York City (J. Edgar Bull, of New York City, of counsel), for appellant. Edwards, Sager & Wooster, of New York City, for appellee. PER CURIAM. The proofs in this case show that the patented motors were ordered two years and a few days before the application for the patent was filed, but were not delivered and could not have been delivered until a time within the two-year period. The question is as to the proper construction of the words "not in public use or on sale" in Rev. St. § 4886 (Comp. St. 1913, § 9430). The combination of the words indicates that the sale contemplated is such as creates an opportunity for present public use. It is a situation quite different from the reduction to practice necessary to sustain anticipation. Judge Learned Hand apparently had this in mind when he held that the completion of the invention, though very important in a competition as to priority, was not important upon the question whether the public was using or given the opportunity of present use of the invention. The provision ought to be construed favorably to patentees. If patented articles are on hand ready to be delivered to any purchaser, they are on sale, whether any of them has been sold or not. But, if they are not, they cannot be said to be on sale within the meaning of the act, though the invention itself has ceased to be experimental and is complete. This certainly should be true of articles which can be carried in stock, like the motors in question. Such was the case in Covert v. Covert (C. C.) 106 Fed. 183; National Cash Register Co. v. American Cash Register Co., 178 Fed. 79, 101 C. C. A. 569. Although in Dittgen v. Racine Co. (C. C.) 181 Fed. 394, it was the practice not to make the patented articles until after they were ordered, still thousands of them For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes had been made and delivered more than two years before the inventor applied for his patent. We incline to follow McCreery v. Fan Co., 195 Fed. 498, 115 C. C. A. 408. The petition is denied. (234 Fed. 94) KEYS v. MEYER et al. (Circuit Court of Appeals, Second Circuit. May 9, 1916.) The Keys patent, No. 789,696, for a necktie, held void for lack of invention, in view of the prior art. Appeal from the District Court of the United States for the Southern District of New York. Suit in equity by William A. Keys against William K. Meyer, Robert L. Bacharach, and Arthur Friedheim, copartners as Meyer, Bacharach & Friedheim. Decree for defendants, and complainant appeals. Affirmed. Kenyon & Kenyon, of New York City, for appellant. Before COXE, Circuit Judge, and VEEDER and MAYER, District Judges. COXE, Circuit Judge. The patent in question relates to neckwear and consists in a construction of ties whereby the strain is taken from the bow or knot. Claims 2 and 3 are involved. They are as follows: "2. As an article of manufacture, a necktie consisting of a neckband and two end portions, these end portions being adapted to form a tie, and tabs on the inner side provided with a buttonhole adapted to fit over a collarbutton, said tabs being integral with the inner face of the tie, substantially as set forth. "3. As an article of manufacture, a necktie consisting of a neckband and two end portions adapted to form a tie, and tabs made out of the same material as the inner face of the tie and integral with said inner face, said tabs provided with buttonholes adapted to fit over the collar-button, substantially as set forth." The District Court held that the defendant did not infringe, as the claims in question must in any event be narrowly construed. We are of the opinion that the change made by the plaintiff over the prior art did not amount to invention. All that can be said of the plaintiff's necktie is that it may be a trifle more symmetrical and may fit a little better than the neckties of the prior art. As Judge Hough points out, there can be no novelty, where the prior art shows two tabs each containing a buttonhole, in sewing on one long tab with a buttonhole at each end. The basic idea was in use before Keys secured his patent and he merely improved upon some of the minor details of existing ties. He added nothing fundamental to the prior ties. The decree is affirmed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes. (234 Fed. 209) TOWN OF NEWBERN et al. v. NATIONAL BANK OF (Circuit Court of Appeals, Sixth Circuit. June 30, 1916.) No. 2707. 1. COURTS ~372(7)—PRECEDENCE-FEDERAL COURTS. Where the validity of municipal bonds depended upon the construction to be given Acts Tenn. 1897, c. 13, and Acts Tenn. 1901, c. 450, incorporating the municipality, and the contract had been entered into before an interpretation of the statutes by the Tennessee court, the federal courts are not bound by a decision of the Tennessee court holding the bond issue invalid, and, having obtained jurisdiction of a suit involving the validity of some of the bonds, they may exercise an independent judgment. [Ed. Note. For other cases, see Courts, Cent. Dig. § 979; Dec. Dig. 372(7).] 2. COURTS 372(7)—PreCEDENCE-FEDERAL COURTS. Upon questions of general law decisions of the state courts are not binding on the federal courts sitting within their borders; therefore a decision of the state court that a municipality was not estopped from denying the validity of its bonds, which had passed into the hands of a bona fide purchaser for value without notice, is not binding on the federal courts. [Ed. Note.-For other cases, see Courts, Cent. Dig. § 979; Dec. Dig. ~372(7).] 3. MUNICIPAL CORPORATIONS 927-Bonds-VALIDITY. Where municipal bonds bore admittedly official signatures of municipal officers and the city seal, such signatures and seal prima facie established the validity of the bonds. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1940; Dec. Dig. 927.] 4. MUNICIPAL CORPORATIONS 948(4)-BONDS-BONA FIDE PURCHASERESTOPPEL. Acts Tenn. 1897, c. 13, declares that, to secure pure elections, boards of commissioners shall be appointed in the several counties. Acts Tenn. 1901, c. 450, incorporating the town of Newbern, provides in section 6 for the holding of an election by the sheriff for the selection of mayor, aldermen, recorder, and marshal. By Act of March 13, 1907 (Acts 1907, c. 117), the mayor and aldermen of the town of Newbern were authorized to issue bonds to erect school buildings, to improve and extend the water and light system, and to improve streets. The bonds contained a recital that at an election duly and legally held by order of the mayor and aldermen of the town, in accordance with an ordinance duly passed, the issuance of the bonds was ratified by a majority of the voters. The bonds were signed by the mayor and countersigned by the clerk of the board of aldermen, instead of being signed both by the mayor and aldermen. The ordinance referred to in the bond recited that an election, ordered by the mayor and aldermen to ascertain the will of the qualified voters as to whether the mayor and aldermen should issue the bonds, as provided for, was held, and resulted in showing that a majority favored the issuance of the bonds; the result of the election having been duly and regularly certified by the sheriff under whose supervision the election was held. Held that, as against a bona fide purchaser of the bonds for value and without notice, the city was estopped to deny the validity of the bonds on the ground that the election, having been held by the sheriff, instead of commissioners, was invalid, for a purchaser could not be charged with notice of the fact that the election was held by the sheriff, on the ground that the bonds were signed by the mayor and clerk, instead of the mayor and For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes aldermen; these signatures being accompanied by a corporate seal importing authority. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1985; Dec. Dig. 948(4).] 5. MUNICIPAL CORPORATIONS 931-BONDS-VALIDITY-ALTERATIONS. Municipal bonds are not invalid, on the ground that they did not follow the form prescribed by the ordinance, because of the insertion of provision for payment in a particular bank in the city, where payment was provided for, or by declarations that the total debt of the town, including the bonds, did not exceed any limit of indebtedness prescribed by the laws of the state, and that provision for the levy of an annual tax sutlicient to pay the principal and interest of the bonds had been made and would be duly levied upon all taxable property, for the first provision operated to the convenience of the municipality, and the latter did not change the obligation of the municipality, which pledged its full faith, credit, and revenues. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1944-1947; Dec. Dig. 931.] 6. MUNICIPAL CORPORATIONS 948(5)-BONDS-VALIDITY-DEFENSES. Where coupon bonds issued by a municipality to erect a school building were sold, and the purchaser disposed of them to bona fide purchasers, but never paid the purchase price to the municipality, the bonds are, in the hands of bona fide purchasers, valid, being negotiable instruments. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1986, 1987; Dec. Dig. 948(5).] 7. MUNICIPAL CORPORATIONS 948(1)-BONDS-DELIVERY-PRESUMPTIONS. Under Negotiable Instruments Act (Acts Tenn. 1899, c. 94) § 16, providing that, where a negotiable instrument is in the hands of a holder in due course, a valid delivery by all parties prior to him, so as to make them liable to him, is conclusively presumed, the validity of municipal school bonds in the hands of a bona fide purchaser cannot be questioned by a municipality on the ground that there was no valid delivery to the one through whom the purchaser traced his title. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1982, 1990; Dec. Dig. 948(1).] 8. APPEAL AND ERROR 1078(1)-REVIEW-WAIVER OF ERRORS. Failure to argue assignments of error operates as a waiver. [Ed. Note. Dec. Dig. For other cases, see Appeal and Error, Cent. Dig. § 4256; 1078(1).] In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge. Action by the National Bank of Barnesville, Ohio, against the Town of Newbern and the Mayor and Aldermen of Newbern, Dyer County, Tennessee. There was a judgment for plaintiff, and defendants bring error. Affirmed. The suit below was to recover judgment for interest alleged to have accrued on certain bonds of the town of Newbern, a municipal corporation located in Dyer county, Tenn. The town was empowered in 1907 to issue $50,000 of coupon bonds for municipal improvements, as follows: $25,000 par value to erect and furnish school buildings, $10,000 to improve and extend water and light system, and $15,000 to improve streets. The bonds are all outstanding, and the town received the money arising from the sale of the water and light and street bonds, though it has received no money for the school bonds. The town pays the interest as it accrues on the water, light, and street bonds, but it declines to pay anything on account of school bonds. The interest now sought to be recovered is represented by 131 past-due couFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |