16 Blatchf. 220 | U.S. Circuit Court for the District of Southern New York | 1879
This suit is brought on letters patent No. 74,068, granted to the plaintiff, February 4th, 1868, for an “improvement in machine for forming sheet metal mouldings.” The bill was originally filed against the defendant Wilson alone, on the 19th of May, 1S69. He put in an answer and a replication was filed to that answer. Proofs on the part of the plaintiff were taken in February, 1871. Nothing further was done till November, 1873, when the plaintiff closed his opening proofs. The defendant took some proofs in November, 1873. At the April term, 1874, a decree was entered for the plaintiff, by default On the 13th of May, 1874, a written stipulation, en
The plaintiff’s expert, Mr. McIntire, in his testimony given February 7th, 1871, describes a machine for bending sheet metal to form metallic cornices, which was a working machine, and which he had seen in operation at the establishment of Ackerman & Borkel, in Worth street, New York. He says: “Q. 3. Will you look at the model, complainant’s Exhibit B, and state what it represents? A. I have examined the model marked complainant’s Exhibit B. It represents a machine adapted to bending sheet metal to form metallic cornices. Q. 4. Have you ever seen a machine in operation constructed like said model; and, if yea, when and where and by whom? A. I have seen a working machine in operation at the establishment of Messrs. Ackerman & Borkel, No.-Worth street, New York city, which was constructed and operated similarly to said model, complainant’s Exhibit B. Q. 5. Please look at complainant's Exhibit C, and state what it represents? A. It represents a true, full-sized model of a short section of a bar of solid met
The defendants now contend, that there can be no’decree against Ackerman and Borkel, because, (1) no replication has been filed to their answer; (2) because the use proved is a use by Wilson alone, and not a use by Ackerman and Borkel, or either of them. It is contended, that the evidence taken before Ackerman and Borkel were made defendants cannot be read against them, and that the patent is not, in fact, in evidence against, them.
As to the replication, the putting in of proofs by the defendants to sustain the allegations of their joint answer, after such answer was filed, and their allowing the plaintiffs to put in proofs in rebuttal, and proofs in contradiction of the allegations of such joint answer, without entering any objection on the record that there was no replication to such joint answer, estops the defendants from now raising such objection.
As to the other objection, the reference in the stipulation of May 13th, 1874, signed by the solicitor on behalf of Ackerman and Borkel as well as on behalf of Wilson, (and under which Ackerman and Borkel put in their answer,) to the fact that they had bought “the business of said Wilson in which the infringing machine or machines were used,” and that the accounting against them was to date from the time of such purchase, and that they were to be enjoined, and that they were not to object that they had not infringed jointly with. Wilson, taken in connection with the fact, that, in the joint answer, which is sworn to by Borkel, the machine charged in the bill as infringing is spoken of as “the machine-used by these defendants,” is sufficient prima facie evidence of the use of the machine by Ackerman and Borkel.
The defendants claim to have shown that the machine used by Wilson, and sold by him to Ackerman and Borkel, embodied the 2d and 4th claims of the plaintiff’s patent, before the plaintiff made the ifiventions. But, the whole evidence of the witness Conolly, taken together, shows that such machine did not embody either of those claims until after the plaintiff completed, and put into the shape of a model, the inventions covered by those claims.
The plaintiff’s lower or male die, whether E, forming a right angle at the apex, or F, a rounded die on the upper surface, is of such, a form that it cannot be “clogged or made imperfect by dirt or other foreign matter.” This being so, it is apparent, that, if the female die is placed above the male die, so that the female die cannot be “clogged or made imperfect by dirt or other foreign matter,” the-resulting smooth sheet metal mouldings will not have their surface marred by the interposition of dirt or foreign matter between the dies. Mr. Mclntire, the plaintiff’s expert, testifies, that the state of the art, prior to the plaintiff’s invention, was, that, so far as he knows, all machines had been made with the dies so arranged that opportunity was afforded for the collection of dirt, chips, &c., in or
There must be the usual decree for the plaintiff.