7 F. 859 | U.S. Cir. Ct. | 1877
This is a suit in equity to restrain the infringement of letters patent No. .119,705, issued to E. A. Heath on the tenth day of Oetober, 1871, for a metallic cuspidor. The hill of complaint prays for an injunction, account, and assessment of damages. The answer denies that Heath was the original and first inventor of the alleged improvement in cuspidors described and claimed in his letters patent, hut that he was anticipated by one William H. Top-ham, to whom letters patent were granted on the second of August, 1870. The word “cuspidor” is derived from the Por. tugúese verb cuspo, to spit; cuspidor, a spitter. The English cuspidor is a spittoon of a peculiar form. Not much stress, therefore, can be laid upon the fact that Topham calls his patent “an improvement in spittoons,” and Heath calls his “an improvement in cuspidors.” The difference between a spittoon and a cuspidor is one of form, and the form of the cuspidor is not new. The characteristic and valuable feature of both articles is their self-righting quality, arising from their weighted bottoms. The functions of the weighted bottom in each are the same, and Topham’s has the merit of being the older. It is in evidence that he made papier mache cuspidors with weighted bottoms as early as June or July, 1871, anterior to the date of the patent to Heath. What, then, has Heath done? He has improved a cuspidor by increasing the weight of the bottom, whereby it is rendered
As the defendants justify tinder the Topham patent there must be a decree in their í¿ vor, and it is ordered accordingly!
