12 F. 140 | U.S. Circuit Court for the District of Southern New York | 1882
This suit is brought upon reissued letters patent No. 9,297, to the orator, for an improvement in whip-sockets, and
The allegation in the answer as to knowledge, without an allegation of use, seems to have been made intentionally, in view of the evidence to support it, rather than inadvertently. The proof, at most, shows that but two sockets were made showing this invention, and that these were laid away with other specimens without the rubber'disks being in the grooves. Mesche, who made them, afterwards took a patent, which is one of those set up as anticipations, without this feature, and no use of them otherwise is shown. One of them, defendant’s Exhibit L, is in evidence, with a rubber disk made since in the groove. As so put together this exhibit does seem to show all the elements of this patent as construed. The evidence was seasonably objected to for the reason of the lack in the answer, and the question is whether such an answer, supported by proof, will defeat a patent. The section of the statute relating to the granting of patents provides that they may be granted if the invention was not known or used by them, as if either knowledge or use would prevent. Eev. St. § 4886. The section relating to defences, and the mode of making them, provides for notice stating not only the names and residences of the persons alleged to have had- prior knowledge of the inventions, but adds, “and where and by whom it had been used.”
In Gayler v. Wilder, 10 How. 477, it was held that these statutes were to be construed together, and with others on the same subject, and that prior knowledge of an invention not accessible to the public would not defeat a patent. The knowledge might be acquired in a foreign country, and the invention not be patented or described in a printed publication there, and such knowledge would not prevent or defeat a patent'by another in this country. The answer alleges knowledge by persons of New Haven, Connecticut, but not knowledge at New Haven or any .other'place. The proof goes beyond this, and shows such knowledge as there was to have been at New Haven; but affirmative defences, and especially this defence, as provided and regulated by the statute, must be alleged as well as proved, and proof objected to for want of allegation will not help out the defence. Roemer v. Simon, 95 U. S. 214. This defence cannot prevail as made, ■
There was some difficulty in having these rubber disks thick enough to well retain their places in the sockets and at the same time yielding enough to permit ready insertion and withdrawal of different-sized whips. Underwood invented cutting away portions of the disk at intervals, around between the outer edge and the perforation, making them more yielding in the interior, whereby this difficulty was, in some measure at least, overcome. His patent is for this improvement. The evidence of anticipatory devices, shows nothing like this. As the case is made up and presented, the patents must both be adjudged valid, and to be infringed.
Let a decree be entered for the orator for an injunction and an account, according to the prayer of the bill, with costs.