22 F. 94 | U.S. Circuit Court for the District of Southern New York | 1884
Since the announcement of the decision of the court in this case, on the twenty-first of August, 1884, (21 Fed. Rep. 631,) dismissing the bill of complaint, and before the entering of any formal decree to that effect, the plaintiff has made a motion for leave to file a supplemental bill of complaint in the nature of a bill of review. The motion is founded on a petition which purports to be the petition of the plaintiff by his solicitor, and is not signed or sworn to by the plaintiff, or any agent or attorney in fact of his, but is signed and sworn to by the solicitor, and is supplemented by an affidavit made by the solicitor, stating that the reason why the petition was not signed and verified by, the plaintiff was because the plaintiff is in Europe, and has been there for several years last past, and for the further reason that the facts and statements set forth in the petition are within the knowledge of the solicitor.
The petition sets forth that since the decision of August 21, 1884, the petitioner has discovered new matter of consequence in the cause; particularly, that John W. Hyatt, Jr., and David'Blake obtained letters patent of the United States, No. 89,682, on the fourth of May, 1869, a printed copy of the specification of which is annexed to the petition; that the defendant, as assignee of I. Smith Hyatt and John W. Hyatt, (who is the same person who is called John W. Hyatt, Jr., in No. 89,582,) obtained letters patent of the United States, No. 156,-352, on the twenty-seventh of October, 1874, a printed copy of the
To this petition the defendant interposed a demurrer, assigning for cause (1) that it does not appear by the petition that the petitioner could not, with reasonable diligence, have discovered tne alleged new matters set forth therein prior to the hearing and decision of this case, and could not have duly presented the same to the attention of the court at a prior stage of the case; (2) that it does not appear, by inspection of the petition, and of the copies of the specifications thereto annexed, that the alleged new matter is in any way material or controlling upon the merits of this ease; (3) that the petition is not verified by the plaintiff, or by any one authorized to act for him in that behalf, but by a solicitor only; (4) that the petition does not disclose any matter of equity whereon or wherebv the prayer of the petition should be granted.
1. The first cause of demurrer is well assigned. .The cases of Smith v. Babcock, 3 Sumn. 583; Baker v. Whiting, 1 Story, 218; Walden v. Bodley, 14 Pet. 156; India-rubber Comb Co. v. Phelps, 8 Blatchf. 85; Hitchcock v. Tremaine, 9 Blatchf. 550; Prevost v. Gratz, Pet. C. C. 364; Livingston v. Hubbs, 3 Johns. Ch. 124; Ruggles v. Eddy,
2. The new matter is not material. In the first decision, it was said, as to camphor and alcohol, that “neither alone is a solvent of xyloidine. ” This is not a statement made in the specification of the plaintiff’s patent. The claim of that patent covers eight different solvents of xyloidine, of which the use of camphor and alcohol conjointly is one. As to all of the solvents claimed, the specification says, that the “invention relates to the preparation and use of certain solvents of xyloidine, and which differ from the ordinary or known solvents of xyloidine, in that these menstrua which are employed are not, necessarily, in themselves, solvents of xyloidine, but become so by the addition of the bodies, compounds, or substances herein referred to.” This statement, as applied to alcohol, is a statement that alcohol may be or may not be, in itself, a solvent of xyloidine, but that it is unimportant whether it is or is not, the invention being the compound or mixture or joint action of camphor and alcohol. Therefore, it was said, in the last decision, that “whether either alone is or is not a solvent of xyloidine is of no importance.” The patent covers a combination of camphor and alcohol. The infringement in question is a use of that combination. The anticipating description to be looked for is a description of the use of that combination.
Parkes, in No. 2,359, said that he dissolved gun-cotton in alcohol.It is sufficient that he said he did, whether he did or not. In No. 2,675 he said that he distilled alcohol over chloride of calcium, and used it as a solvent of gun-cotton. It is sufficient that he said he did, whether he did or not. In No. 1,313 he says he takes the solv
Without passing on any other points raised by the demurrer, it is sustained, and the petition is dismissed, with costs.