in which the ends or bottoms are formed in part of the same piece of metal which forms the sides, such metal being folded afterwards into crimps, and the crimps flattened down over a wooden head which is held in place by nails driven through the periphery of the cylinder into the rim of the head.

Conceding then that it was old to crimp in and fold the ends of cylindrical cartridges and boxes of pasteboard, or other stiff material, as shown in the Hazeltine patent, and also that it was old to turn the edge of metallic cylindrical vessels or packages to hold separate bottoms or heads of such vessels and packages, it is evident that, if the first claim of the Hoff patent can be supported at all, it can only be for the formation of the entire bottom of the crimped material, and the resultant increase in its thickness.

Defendant is making a coal-hod after a patent granted to Henry S. Reynolds, No. 304,033, dated August 26, 1884, the principal advantages of which are declared by the patentee to be an increase of strength and durability of the vessel, and a decrease of the cost of production. To accomplish these objects he partially forms the bottom out of the metal forming the body, and closes the aperture and completes the bottom by a cap. The blank is cut out in the ordinary way, and is then formed up by bending its edges around and uniting them to form the body. The next operation consists in placing the body in an inverted posi tion, in a stamping-press of the requisite power, and subjecting it to compression between dies, of suitable shape, to fold its lower edge inwardly, and to form a series of ribs tapering toward the center. The next step consists in placing the body in a press, and, by the action of another set of dies, flattening the ribs, and thereby partially forming the bottom of the vessel out of a portion, and in one piece with the body, the walls of the ribs folding in upon the metal between them, and thus increasing the thickness of a portion of the bottom, and consequently increasing its strength and durability. To finish the bottom he employs a cap punched out of sheet metal, inserted in the partiallycompleted bottom, its rim resting upon the inside, and its body projecting through the aperture, and so flattened down upon the crimps as to completely close the aperture and bind the ribs. Under the narrow construction we are compelled to give the Hoff patent it is evident this is no infringement. Whether the result produced be or be not inferior to the Hoff hod of course is not involved in this case. It may be true that Reynolds conceived the idea of his hod from an examination of the Hoff device; but he is none the less entitled to claim that the Hoff patent had been anticipated by prior devices, especially when such prior devices appear to show a complete anticipation of his own. Indeed both of these parties seem to have been gleaning in a field already open to the public.

It is clear that the second claim of the Hoff patent for "a coal-hod formed of a single piece and having its bottom crimped or folded to

form a series of annular ribs or rings of progressively-increasing diameter" is not infringed by the Reynolds device, as no such rings or ribs or anything approximating to them is shown in the defendant's hod. The decree of the court below must be affirmed.

[Supreme Court of the United States.]

DOLAN V. JENNINGS; KIBBE ET AL. v. JENNINGS.

Where final decrees were rendered in the circuit court in favor of two joint owners of certain patents, not being partners, and one of the complainants died after said decrees were rendered and appeals were filed and allowed and the citation ran to the surviving complainant, and no order was procured, directed to the proper representatives of the estate of the deceased owner, or notifying them of the appeals, and they did not voluntarily appear, Held that the cause of action did not survive to the remaining owner and that the Supreme Court had no jurisdiction.

APPEALS from the Circuit Court of the United States for the South ern District of New York.

Mr. John R. Bennett for the appellants.

Mr. A. v. Briesen for the appellee.

Mr. Chief Justice FULLER delivered the opinion of the Court: These are appeals from final decrees rendered in the Circuit Court of the United States for the Southern District of New York, awarding to Abraham G. Jennings and Warren P. Jennings, complainants, damages against Thomas Dolan, of Philadelphia, and Kibbe, Chaffee, Shreve & Co., of New York, for the infringement of Letters Patent No. 218,082, for lace purling. A Design Patent No 10,448 for a design for fringed lace fabric was also proceeded on in the bills of complaint, but was held not to have been infringed by defendants. Final decrees were rendered in each suit in favor of Abraham G. Jennings and Warren P. Jennings against Dolan and Kibbe et al., respectively, on the 12th of February, 1887.

On the 25th of March, 1887, a petition for appeal was filed in each case on behalf of the defendants, entitled "Abraham G. Jennings, survivor of Abraham G. Jennings and Warren P. Jennings," and against Dolan and Kibbe et al., and the appeals were allowed.

The bond in No. 265 was approved March 10, 1887, and entitled “A G. Jennings, surviving complainant in A. G. Jennings and W. P. Jennings v. Thomas Dolan," and recited that Dolan and his sureties were

"held and firmly bound unto the above-named complainants in the sum of thirty-five hundred dollars to be paid to the said complainants." The citation ran, "to Abraham G. Jennings, surviving complainant, &c.," and was served March 24, 1887.

In No. 266 the bond was entitled "A. G. Jennings, surviving complainant in A. G. Jennings and W. P. Jennings v. Henry R. Kibbe," ́and the other defendants, and recited that the persons signing were "held and firmly bound unto the above-named A. G. Jennings and W. P. Jennings in the sum of twenty-seven hundred dollars, to be paid to the said A. G. Jennings and W. P. Jennings." This bond was filed March 10, 1887. The citation ran to "Abraham G. Jennings, surviving complainant, &c.," and was served March 24.

The bills commenced "Abraham G. Jennings and Warren P. Jennings, doing business at the city of New York, county and State of New York, and citizens of the State of New York," and set up that Abraham G. Jennings and Warren P. Jennings were "the sole and exclusive owners" of the patents in question. It nowhere appeared from the pleadings, proofs, proceedings, or decrees that the complainants claimed to own or did own the patents as partners, though there was some evidence that there was a firm styled A. G. Jennings & Son, or A. G. Jennings & Sons, or Jennings & Co. Sundry licenses were put in evidence, describing Abraham G. Jennings and Warren P. Jennings as the owners of the patents and the granting of the licenses accordingly. The death of Warren P. Jennings was not suggested on the record by the appellants, except as the titles to the petitions for appeal and the bonds on appeal, and the directions of the citations might be considered as such. But we understand his death after decree to be conceded. No order was procured, directed to the proper representatives of the estate of Warren P. Jennings or notifying them of the appeal, nor have they voluntarily appeared.

The proper course of proceeding upon this subject has been wholly disregarded. (Revised Statutes, section 955; act of March 3, 1875, section 9; 18 Statutes, 470; Rule 15.) So far as disclosed by these records, the cause of action did not on the death of one of the complainants survive to the other, nor could there have been, nor was there, any severance between Abraham G. Jennings and the legal representatives of Warren P. Jennings; nor do we think that the defect can now be cured. More than four years have elapsed since the final decrees were entered, and, as we have never had jurisdiction over the legal representatives of the deceased complainant, it is impossible for us to obtain it now.

In Knickerbocker Life Insurance Company v. Pendleton, (115 U. S., 339,) after judgment had been rendered here reversing the judgment. below, which had passed in favor of the plaintiffs below, the court discovered that the writ of error was sued out and citation directed and served against only one of those plaintiff's, and that the preliminary 782 c P-22

appeal bond was made to him alone. The supersedeas bond was, how ever, executed to all the plaintiffs, and the subsequent proceedings generally bore a plural title. The special circumstances of the case were held to justify the amendment of the writ of error and the issue of a new citation.

In Mason v. United States, (136 U. S., 581,) the application to amend being made more than two years after the entry of judgment, and the omitted parties being in no way in court, the application was denied and the writ of error dismissed. (Estis v. Trabue, 128 U. S., 225.)

We are compelled to hold the objection fatal to our jurisdiction, and the appeals must be dismissed.

[U. S. Circuit Court-District of New Jersey.]'

AMERICAN LINOLEUM MANUFACTURING COMPANY v. NAIRN LINOLEUM COMPANY.

Decided December 22, 1890.

55 O. G., 142.

SUITS FOR INFRINGEMENT-EXPERT TESTIMONY.

On a suit for infringement of Letters Patent, where complainant calls an expert witness to point out resemblances between the patent and the alleged infringing device, and asks him to interpret the claims of the patent in so doing, he cannot be required to refrain from considering the prior state of the art in giving his testimony.

OBJECTIONS to testimony before Examiner. Motion to strike out.

Mr. Walter D. Edmonds for the complainant.

Mr. Edward N. Dickerson for the defendant.

LACOMBE, J.:

The question presented on these motions is briefly this: Whether, when a complainant calls an expert to explain the meaning of his pat ent, he may insist that such expert shall, both on direct and cross examination, be strictly confined to an interpretation of that patent, without any consideration of or reference to the state of the art prior to the Letters Patent. The complainant contends that, inasmuch as it is well-settled law that the Letters Patent sufficiently prove novelty and patentability, a prima facie case is made out when proof is also given of infringement by the defendant. That is undoubtedly so if the complainant chooses to confine himself to the Letters Patent and a statement of the acts done by the defendant. In that case the court will interpret the words of the patent in the sense in which they are ordinarily employed, and with the knowledge of the invention thus

acquired will determine whether the acts done by the defendant amount to an infringement. Here, however, the complainant did not choose to rely upon his Letters Patent. alone, but called an expert to point out resemblances between the patent and the alleged infringing process, a stipulation having set out specifically what that process in fact was. Such testimony is admissible on the theory that the language of the patent is obscure, that judges are not always supposed to possess the requisite knowledge of the meaning of the terms of art or science used therein, and that it would be unintelligible to the court unless its words and phrases were translated or explained by one skilled in the art-by one who, from his experience, is able to say that such words and phrases conveyed to those skilled in the art, when the patent was granted, some meaning broader or narrower or otherwise different from what they would convey to others not thus skilled. Unless the expert's testimony goes to that extent it is superfluous, because the court will be able without it both to interpret the Letters Patent and to recognize infringement. If, however, such testimony is found necessary, and an expert is called, he should not be required to discharge his mind of the very knowledge as to the prior state of the art, which alone qualifies him to testify as such expert.

In the case at bar timely objection was made to the fifth question, which reads as follows:

Please compare the process of producing oxidized oil made use of by the defendants, as described in said admission and testimony, and also the mechanism made use of by them in the application of said process, as similarly described and shown in the drawings referred to, with the subject-matters described in the said Letters Patent, and specifically claimed in the claims thereof, and point out such resemblances asy ou may find to exist between the process and apparatus as used and as patented; and in giving your answer and interpreting claims of said Letters Patent you will please refrain from any consideration of or reference to the state of the art prior to the Letters Patent in suit relating to such process and apparatus, except such as may appear upon the face of the patent itself.

This question, of course, assumes that the witness is to ascertain the meaning of the Letters Patent; otherwise he would have no basis of comparison with the defendant's process. It expressly notifies him that he is expected to interpret its claims. Such testimony being admissible only from one skilled in the art, this question, which requires him to ignore the very experience which alone makes him a competent witness, is itself incompetent. Inasmuch, however, as the question was answered, and as it is not usual to rule upon objections in these cases fragmentarily, the testimony may remain in the case, if complainant so wishes, but subject to cross-examination on the lines indicated by the cross-questions submitted on this argument.