107 F. 719 | 2d Cir. | 1901
The suit is upon letters patent No. 608,720, dated August 9, 1898, to William C. Shaw for a collar turning and ironing machine. As stated in the specification, it embodies “mechanism for turning the rolls of turn-down collars, and for turning the tips and finishing the edge of stand-up collars; and it consists, substantially, of a vertical semicircular plate, over which the collars are turned, and grooved sadirons, adapted io move in the arcs of circles over said semicircular plate, for ironing the turns
“(1) In a collar turning and ironing machine, the combination of a curved flange-shaped former,' over which the collar is folded and curved into proper shape for wear, a grooved iron arranged opposite the former, and means for moving the grooved, iron into engagement with the former, and for moving one of said parts upon the other, substantially as set forth."
The alleged infringing machine is made under patent No. 627,889, granted June 27, 1899, to defendant Asher. The patent sued upon is a very recent one, and there is no such proof of long-continued, acquiescence by the public as would raise a prima facie case in the patentee’s favor. Under such circumstances, it is the practice in this circuit to refuse preliminary injunction when there has been no adjudication sustaining the patent, if there appears to be any fair question as to invention, anticipation, construction, or infringement. Dickerson v. Machine Co. (C. C.) 35 Fed. 143.
It will be noted that the claim sued on may be interpreted as containing either three or four elements. Complainant contends that it covers (1) “a curved covered flange-shaped former”; (2) “a grooved iron arranged opposite the former”; (3) means for moving the grooved iron into engagement with the former; (4) means for moving one of sáid parts' upon, the other. Defendant contends that it covers (1) and (2) as above; (3) means for moving the grooved iron into engagement with the former, and for moving one of said parts upon the other. In the machine shown in the patent there are,two pivoted arms, having operating handles. By manipulation ’of these arms1 and handles the sadirons are brought from the shelf <jn which they have been heated, and placed in engagement with the former, and by further manipulation of said arms and handles the sadirons, are moved upon the former. In defendant’s machine there is mechanism by Which the sadiron is brought into engagement with’the former, but when that has been done the operator .ceases to operate such mechanism, and with his hands moves the former back and forth under the sadiron.
' It is quité manifest that there is presented a substantial question as .to infringement, which can be settled only upon construction of the patent, and that requires a presentation of the state of the art and a history of the invention in the patent office. The case would , seem to be one in which preliminary injunction should not be granted without proof of prior adjudication. Complainant relies upon a decision-of the patent office in an interference proceeding, in which eight different applicants were involved, of whom only Shaw and- Asher took testimony. That decision, however, only settled the question of priority as between Shaw and Asher, and is. not such'.an adjudication as the practice calls for, where there is substantial question as to construction and infringement. Dickerson v. Machine Co., supra; Ironclad Mfg. Co. v. Jacob J. Vollrath Mfg. Co. (C. C.) 52 Fed. 143; Rogers Typographic Co. v. Mergenthaler Linotype Co. (C. C.) 58 Fed. 693.
The order, appealed, from is reversed, with costs .of this appeal.