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Christman v. Rumsey.

surrounded on the outside by two thicknesses of finely perforated copper, and a covering of perforated metal outside of the perforated copper. Below this is a solid well point for driving. This solid point is enlarged near its upper part, so as to be larger in diameter than the pipe above, and thus afford additional protection to the finely perforated copper. The defendants allege that their structure does not infringe the claims of Christman's re-issue. They insist that their perforated tube and driving well point are like those used by Suggett before Christman's invention, and that their finely perforated copper, if substantially wire gauze, is the wire gauze of Phelps and Holton and of De Buffon and of Hewitt and of Hughes; that they use no wires, and have no wire grating and no head piece; that their driving point is solid from where the tapering begins, and not at all open; that the plaintiffs' structure cannot have its tapering part enlarged at its upper part; and that it required no invention to cover the perforated part of Suggett's apparatus with wire gauze or finely perforated copper sheets.

The defendants' apparatus can be driven, and then remain as a pump bottom and a filter. The filter in it is substantially wire gauze, and such filter is protected, in driving, by the perforated outside metal. The enlargement of the top of the point may be an added protection, but the office of the metal pipe outside of the finely perforated copper is to protect the latter while the structure is being driven and afterwards. Such outside perforated metal pipe, while it protects the copper inside of it, permits the water to freely pass inwardly through it, and it is substantially an open grating. The combination found in the first claim of the plaintiffs' reissue is substantially found in the defendants' structure. The defendants have substantially a wire gauze filter with a protecting grating or guard outside of it, of sufficient strength for the purpose required, and a tapering driving point. The perforated tube inside of the copper is an addition, which does not destroy the combination of the copper with the protecting guard outside of it. The plaintiffs' tapering part

Christman v. Rumsey.

may have a less part of it solid than the defendants' tapering part, but all that is necessary is to have enough of it solid or compact, beginning at the lowest point, to enable it to be driven, according to the nature of the soil. It is in evidence,

, that structures like that described and shown in the specifications and drawings of Christman's original and re-issued patents were driven by him in 1865, and have worked successfully ever since. If the solid point for driving is sustained by a rigid metallic tubular grating that connects it with the pump tube above, that is all that is essential. Whether this connection be by a head piece or collar, where the open grating is of wires, or whether the head piece is omitted because unnecessary, where the grating is of inflexible metal, is not of the essence of Christman's invention. In either case, the structure is equally carried by the driving of the tube, so as to arrive at its resting place in a condition to act perfectly as a filter. It, therefore, appears that the combination covered by the first claim of the plaintiffs' re-issued patent is found in the defendants' structure. It also appears, that such combination is not found in any of the prior structures adduced by the defendants, and that it involved the exercise of in vention to arrive at such combination, in view of everything that previously existed.

The combination covered by the second claim of the plaintiffs' re-issue seems to be a combination of the grating above the tapering part with the wire gauze inside of such grating, excluding the tapering part and the driving point, and to have no exclusive relation to a driven well, though capable of use in it. Aside from driving, the combination of the grating and the wire gauze, as a filter, is the same thing, as a combination, whether the wire gauze is inside of the grating or outside of it, so long as the apparatus is at the lower end of a pump tube. In this view IIewitt and Ilughes anticipated Christman as to such second claim, and it is invalid, provided the testimony is available to the defendants. Hughes, Hewitt, Field and McCue testify to substantially the same prior arrangement. None of them are named in

The American Cotton Tie Supply Company v. Bullard.

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the answer. Although the testimony of Hughes was objected to, on that account, when taken, the testimony of the other three witnesses was not objected to.

Although the second claim is invalid, for want of novelty, the plaintiff can recover on the first claim, under $ 60 of the Act of July 8th, 1870, (16 U.S. Stat. at Large, 207,) now $ 4,922 of the Revised Statutes, although no disclaimer has been made as yet as to the second claim, provided that, prior to the entry of a decree herein, as to such first claim, they make a disclaimer, under $ 4,917 of the Revised Statutes, as to the second claim, it not appearing that there has been, heretofore, any unreasonable neglect or delay to enter such disclaimer; but, as such disclaimer was not entered before the commencement of this suit, the plaintiffs will not be entitled to recover any costs of this suit. (Rev. Stat. U. S., $ 4,922.)

Let a decree be ertered for an account of profits and damages and for a perpetual injunction, as to the first claim.

J. J. Greenough and Irving G. Vann, for the plaintiffs.

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John L. BULLARD AND OTHERS.

IN EQUITY.

The plaintiff was the owner of patents covering improvements in metallic cot

ton ties, consisting of buckles and hoops, for compressing bales of cotton. Neither the plaintiff nor any prior owner of the patents bad granted any licenses to make buckles or ties, but they had made and sold the ties. The buckles were stamped, “Licensed to use once only,” and were sold with invoices declaring that the ties were licensed to be used once only, as baling

The American Cotton Tie Supply Company v. Bullard.

ties. The defendant bought the buckles so once used, from cotton mills and junk dealers, and put up some with new hoops, and some with pieces of the original hoops pieced together, and sold them as cotton ties: Held, that the defendant had infringed the patents, and ought to be enjoined from further infringement.

(Before BLATCHFORD, J., Southern District of New York, September 29th, 1879.)

BLATCHFORD, J. The bill in this case sets forth that the plaintiff is “ a joint stock company, duly and legally organized under the laws of the State of Louisiana, and having its principal place of business in New Orleans, in said State.” It does not aver that the plaintiff is a corporation or that it is a citizen of the State of Louisiana. It avers that the defend

. ants are citizens of the State of New York. The plaintiff is referred to in some of the affidavits as a corporation, and it is, doubtless, a corporation created by the State of Louisiana. This being so, the bill can be amended, and it must be, to show a capacity in the plaintiff to sue.

The bill is founded on re-issued letters patent No. 5,333, granted to James J. McComb, March 25th, 1873, for an “improvement in cotton bale ties,” (the original patent having been granted to George Brodie, March 22d, 1859, and reissued to him April 27th, 1869, and extended for seven years from March 22d, 1873,) and on letters patent No. 31,252, granted to J. J. McComb, January 29th, 1861, for an “improvement in iron ties for cotton bales," and extended for seven years from January 29th, 1875. The plaintiff

' is the owner of both of the patents.

The specification of No. 5,333, (called the Brodie patent,) sets forth that the invention is one of "improvements in cotton ties, or metallic bands and their connections, for baling." It says: "My invention relates to the combination with open slot ties of metallic bands having their ends free and held in position by the expansion of the bale.

* Fig. 6 is a top view of the open slotted link, shown in Figs. 7, 13 and 14.

* Figs. 6, 7, 13 and 14 show an open slotted link or tie. In Fig 7 this is shown in connection with pins, and in Figs. 13, 14 and 15 in connection with the band alone,

VOL. XVII.-11

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The American Cotton Tie Supply Company v. Bullard.

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the ends being turned under the link and held in position by the pressure exerted by the expansion of the bale. In the latter mode of use, the slack may be readily taken up by forming the loop in the iron at the moment of making the fastening, and passing the end thus looped through the opening in the side of the link. The band is thus slipped sidewise through the opening into the slot, instead of thrusting it through endwise.” The 3d, 4th and 5th claims of the patent are as follows: “3. The combination of an open slot for introducing the band sidewise, with a link having a single rectangular opening for holding both ends of a metallic band, and the band. 4. An open slotted link, when combined with metallic bands, the ends of which are turned under the link and held in position by the expansion of the bale. 5. The method of baling cotton with metallic bands, and of taking up the slack of the band, by bending the same at any desired point into the form of a loop, and passing such loop sidewise, through an open slit, into the slot intended to receive it, and over the bar of the clasp intended to hold it.”

The specification of No. 31,252, (called the McComb patent,) sets forth that the invention is “ a new and improved

a mode of fastening iron hoops on cotton bales.” It says:

The nature of my invention consists in the use of a peculiarly shaped buckle, as a fastening or tie for the ends of the iron hoops which it is desired to substitute in place of the hemp ropes now made use of in baling cotton, said iron hoops being so much safer in case of fire.

The tie or buckle is a piece of wrought iron or other metallic substance, about the eighth of an inch thick, an inch and three-quarters wide, and two inches long, (the size being modified to suit the width of the hoop used,) with an oblong hole or aperture cut or punched through the centre. The diagram No. 1, lettered A, B, C, D, represents the exact size of one of the ties or buckles, with aperture cut to receive a hoop an inch wide. The sides A, B, and D, C, are equal and parallel, as are also the sides B, C, and A, D. The letters M, I, J, K, L, shows the shape of the aperture or hole which

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