it there to some one residing in Ohio for use in that State. This act would constitute an infringement; but could the complainant maintain an action against the infringer? Clearly not. None of his rights would be invaded. The patentee could sue, because he still retains the right to sell the invention for use elsewhere; but not the complainant. As the patentee has not parted with his right to sell in the county of Wayne, it is manifest that he can now sell driers in that county for use elsewhere if he sees fit. It is also plain that as this right to sell is not expressly transferred to the complainant, he cannot treat as an infringer one who simply sells a drier in Wayne county, whether he be the patentee or a third person. In short, it is plain that the complainant has not received all that the patentee could give. is right under the patent is less than the whole. Some part of the Government grant to the patentee has been withheld from the complainant. The case of Pickhardt v. Packard, (C. D., 1885, 122; 23 Blatchf., 23; 22 Fed. Rep., 530) is not in conflict with these views, for there the complainants received from the patentee "the right to make, use, and sell and vend to others to use and sell the invention throughout the United States." It follows that the action in its present form cannot be maintained. [U. S. Circuit Court-Eastern District of Missouri.] HOSTETTER COMPANY v. BRUEGGEMAN-REINERT DISTILLING COM PANY. Decided May 9, 1891. 56 O. G., 530. TRADE-MARK-INFRINGEMENT INJUNCTION. As it appears that the plaintiff manufactures and sells "Hostetter's Bitters" and is the owner of trade-marks, brands, labels, etc., used in connection with such sale; that the defendant makes an article closely resembling such bitters, which it sells in bulk, advising its customers to refill bottles that had originally contained Hostetter's Bitters with the spurious article, and to offer them for sale, it is held that the plaintiff is entitled to an injunction restraining the defendant from selling the spurious article, and that the customer using the bottles and labels in the way indicated are guilty of a wrongful act, which a court of equity will enjoin. ON BILL for injunction. Mr. George Dennison and Mr. M. L. Gray for the complainant. THAYER, J.: The complainant is engaged in the manufacture and sale of Hostet ter's Bitters, and is the owner of the trade-marks, brands, labels, etc., used in connection with the sale of such bitters. It charges that de fendant has sold and intends to sell "as and for Hostetter's Bitters” a spurious article or preparation of bitters not manufactured by the complainaut, with intent to deceive the public and to deprive the complainant of a portion of its patronage and of profits that it would otherwise realize by the sale of the genuine article. The proof does not establish that defendant has itself sold a spurions article of bitters put up in bottles made in imitation of those in use by complainant, or that it has counterfeited the complainant's labels, trade-marks, etc.; but the proof does show that defendant manufactures an article of bitters which closely resembles Hostetter's Bitters in appearance and flavor, and that it has sold the same in bulk to its customers, advising them at the time of such sales to refill bottles that originally contained Hostetter's Bitters with the spurious article, and to put the bottles thus refilled on the market as containing genuine Hostetter's Bitters. It is most probable, I think, that in accordance with such counsel and advice a spurious article has been sold by some of defendant's customers in the manner last described, and that complainant has been thereby damaged to some extent and that the public has been deceived. Under these circumstances I think the complainant is entitled to an injunction restraining the defendant from selling a spurious article of bitters as and for Hostetter's Bitters. Customers of defendant who have thus been advised and induced to use genuine bottles and labels in the manner above mentioned are clearly guilty of a wrongful act, which a court of equity will enjoin; and a person who counsels and advises another to perpetrate a fraud, and who also furnishes him the means of consuminating the same, is himself a wrong-doer, and, as such, is liable for the injury inflicted. (Société Anonyme, etc., v. Western Distilling Co., 42 Fed. Rep., 96). The defendant cannot shield itself from an injunction by the plea that it has not itself sold a spurious article in a false dress. The fact that it has advised its customers to perpetrate a fraud of that description, and that it has furnished them the spurious article, and that some of its customers have probably acted on the suggestion, is sufficient to render them liable to an injunction. A restraining order will be awarded at defendant's cost. [U. S. Circuit Court---Southern District of New York.] NATIONAL TYPOGRAPHIC COMPANY ET AL. v. NEW YORK TYPOGRAPH COMPANY ET AL. A foundation patent is infringed by a machine in which each of the mechanisms performs the same function as the corresponding mechanism in the patented machine in substantially the same way and with substantially the same result, even though there are differences in form and structure tending to simplicity and perhaps improvement. 2. PRESUMPTION OF VALIDITY. The fact that the patent has been unquestioned for more than five years, durIng which time the machines have been put on the market and largely advertised and over a million dollars have been invested in their manufacture, even if there has been no prior adjudication in its favor, sufficiently fortifies the prima facie presumption of the patent. 3. EVIDENCE—INJUNCTION, A preliminary injunction will be denied when in the patent upon which suit is brought there is a disclaimer of what is covered by another application of the same inventor and the application or a copy thereof is not furnished. ON MOTION for injunction. Messrs. Betts, Atterbury, Hyde & Betts for the complainants. Messrs. Kerr & Curtis for the defendants, Hall, Starring, and Van Wormer. Messrs. Lowrey, Stone & Auerbach for the Press Publishing Company. LACOMBE, J. That the machines manufactured and sold by the defendants may be lighter, smaller, cheaper, more easily operated, and more efficient; that they may be a decided improvement on the Mergenthaler machine, and may, as such, commend themselves more readily to the public; that they are themselves patented, and that if put in open competition with the earlier machines they would prove more attractive to purchasers and users-each of which points is pressed with great force by the defend ants-is wholly immaterial, if the complainants' main contention is a sound one-viz., that the Mergenthaler "linotype" is covered by a foundation patent; that it embodies a combination wholly new in the printing art, which marks the first great step in advance taken for over four hundred years, and which, though susceptible, as all new foundation inventions are, of subsequent improvement, has yet demonstrated its ability, practically and efficiently, to perform the work it was designed to do. If upon the case now presented it appears that Mergenthaler is a pioneer inventor, he is to be secured the fruits of what he invented and covered by his patent, even as against a subsequent inventor who, though he may have greatly improved it, still uses the original invention which lies at the foundation of the art. (See cases cited in notes to section 894, Rob. Pat.) Three patents are declared upon, (Nos. 313,224, 317,828, and 345,525;) but this motion for prelimi nary injunction is based solely upon the second and third. As to the third, (No. 345,525,) there is a disclaimer of what is covered by another application of the same inventor, which application is not in evidence and is now in interference in the Patent Office with some third person. Such application, which would limit with exactness the measure of the disclaimer, is a proper matter for consideration by the court when interpreting the patent; and inasmuch as the complainant, who presuma bly could do so, does not furnish a copy of such application, the motion for preliminary injunction under that patent should be denied. The decision of this motion therefore hinges upon the second patent. The claim relied upon is as follows: 1. In a machine for producing printing-bars, the combination of a series of independent matrices, each representing a single character, or two or more characters, to appear together, holders or magazines for said matrices, a series of finger keys representing the respective characters, intermediate mechanism, substantially as described, to assemble the matrices in line, and a casting mechanisın, substantially as described, to co-operate with the assembled matrices. The product of the combination of machinery described in the patent and thus claimed is a line of type cast in a solid bar presenting on its printing-edge any combination of letters and printers' marks which the operator may desire, produced automatically. By its use a great change is introduced into the printer's art, whereby the type-setting of single types is dispensed with and the matter is set up from "slugs" or "bars," each containing, not a single letter nor a single word, but any conceivable combination of words and figures. That such a change in the art is almost revolutionary seems to be practically conceded, the defendants insisting, however, that the merit of the invention which effected it must be shared so largely with others earlier in the field, that Mergenthaler can at most claim but an extremely small part of it for himself. Upon the papers, however, it appears that Mergenthaler was the first man who united in a single machine the instrumentalities which, by means of the operation of finger-keys, assembled from magazines or holders independent disconnected matrices, each bearing a single character, carried each individual character independently one by one to a common composing-point, where they were placed in line and were thereupon brought in contact with and closed the face of a mold of the exact length of a predetermined line, into which mold, by the subsequent operation of the same machine molten metal was injected and a cast taken, which cast consists of a line-bar of type-metal having on its printing-edge any desired combination of characters, and which is ready as it leaves the machine for imposition on the form. Some such combination was required to solve a problem with which inventors in the field of the printer's art had struggled for years, and there is not found in any of the earlier patents and methods which have been put in evidence by the defendants anything which fairly anticipates it. Some of the advantages secured by the Mergenthaler machine had existed separately before; but all of them could not and did not exist until some one made the combination which lies at the foundation of that machine. When that was once made, the way was open for a new departure in the printers' art. The defendants themselves in the circular which they issue recommending their own machine to the public enumerate as among the benefits secured by it the getting rid of the disadvantage due to individual type, with its dangers of "squabbling," the abandonment of single type as the unit without having to provide the too large cases required when "logotypes" are used, the avoidance of the necessity of keeping a large stock of type, the adoption of the line-bar cast automatically from assembled matrices as the unit of composition, and the securing of a "new dress" every day. These same results, however, are all achieved by Mergenthaler's invention, which, moreover is not a mere paper machine, but one practically operative. The patent which covers it may therefore be fairly considered a foundation patent, and its claim should be broadly construed. When thus construed infringement seems plain. Though there are differences in the form and structure of the intermediate mechanism tending to simplicity and perhaps improvement, and in the form of the casting mechanism, still each of these mechanisms, as it is embodied in the defendants' machine, performs the same function as the corresponding mechanism in the Mergenthaler machine, in substantially the same way, and they are combined to produce the same result. The combination which is covered by the claim is the same in both. The question remains whether the prima facie presumption of the patent has been sufficiently fortified by proof of public acquiescence, there being no prior adjudication in its favor. The patent bears date May 12, 1885. Since that time over a million dollars have been invested in the purchase of factories, the erection of plants, and the development of the machinery in all its mechanical details. Machines embodying the invention have been manufactured and set to work, principally in the offices of various newspapers of large circulation. Most of these newspapers, it is contended, belong to a syndicate which is in some way interested in the patent, and their machines were purchased at a price which gave no financial profit to the stockholders of the corporation which owns the patent. But it does not appear that the use of those machines was merely experimental, nor that they were offered only to such papers. On the contrary, the complainant corporations have apparently endeavored to advertise and promote the sale of their machines both here and abroad. In 1889 and again in 1890, a machine of Mergenthaler's attracted the notice of the Franklin Institute, which is claimed to be a scientific society of high standing and which awarded two medals in recognition of its ingenuity. Certainly there is no reason to suppose that that branch of the printing art which has occasion to use such machines has for years been ignorant of the fact that an invention of the character described was claimed by Mergenthaler, was being put into practical use, and was offered to the public, but, although such invention met a public need, was manifestly of great utility, apparently solved a problem that had been waiting solution for hundreds of years, and seemed destined to work a revolution in the methods of composition for the press, no one undertook to trespass upon the rights secured by the claims of the patent until the defendants' machine was put upon the market within a few months past. The complainauts gave due warning by written notice to the defend ants, or to those having a common interest with them, that any attempt to manufacture and sell machines such as that of the defendants would |