219 F. 219 | 3rd Cir. | 1914
Appeal from a decree made after a hearing by the United States District Court for the Western District of Pennsylvania granting a preliminary injunction restraining the appellants herein, defendants below, from manufacturing and selling a device known as a “barrel jack,’’ alleged to infringe letters patent No. 1,111,-219, granted September 22, 1914, to Alexander R. Daugherty, of Kit-tanning, Pa. The bill was filed November 4, 1914. The injunction was granted November 9, 1914i
The allegations of the bill are those such as are usually employed in suits for infringement of letters patent.
Sale of the Daugherty barrel jack commenced in the early part of 1914, patent having been applied for January 7, 1914. The sales indicated acceptance by the public. The testimony heard by the District Court shows that James McMaster, one of the appellants, conceived the idea of the barrel jack introduced in evidence by appellants as the “McMaster Barrel Jack” in March, 1914, and that upon March 28, 1914, he applied for letters patent for a barrel jack, application being, allowed September 10, 1914; but that final government fee for issuing the patent has not yet been paid. One of the McMaster appellants saw the Daugherty barrel jack before the device herein alleged to infringe was conceived of. A witness testified that the appellant Waverly Oil Works, selling agents for the McMaster barrel jack, asked the appellee for the exclusive right to sell the Daugherty jack, and it is shown that, after application for a patent therefor was filed, a Daugherty barrel jack was shown to one or both of the McMaster brothers, and that one of them said he thought he could build a better jack or could improve on the one shown.
There is no application or drawing or specification of any kind for letters patent introduced in evidence by appellants whereby we can ascertain with precision just how the device which appellants claim is their invention is constructed. Accompanying the record, however, is a device exhibited and treated by the appellants as a model of their barrel jack. Examination of it satisfies us that the District Court did not err in holding that, in making it, appellants employed a mechanism intended to procure a jack which would meet the public demand for the barrel jacks put on the market by the Daugherty Company. The McMaster device appears to be specially designed for raising and supporting a barrel. It has a forwardly extending arm in combination with a member adapted to embrace the barrel. The arm extends downward, and, if sunk into the ground or rested upon a depression in the floor, will effect a slightly forward inclination of the barrel upon the jack. The argument of the appellants that their jack does not raise the barrel to a tilted, but to a horizontal, position, is not persuasive; for it is too plain that opportunity to use the McMaster jack in a way to effect a forward inclination of the barrel can be easily availed of.
The fact that the device of the appellants is collapsible does not appear to be material to the present consideration of the case. Standard Typewriter Co. v. Standard F. T. S. Co., 181 Fed. 500, 104 C. C. A. 248.
Nor can appellants gain by the point that they and appellees had applications for patents pending at the same time without interference having been declared for the reason that, as indicated, the evidence shows no substantial difference in mode of operation of the two devices-.
Finding no error in the action of the District Court, the order appealed from is affirmed.