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(176 Fed. 95.)

FUERST BROS. & CO. v. UNITED STATES.

(Circuit Court of Appeals, Second Circuit. December 7, 1909.)

No. 81 (4,168).

1. Customs DUTIES ($ 38*)-CLASSIFICATION—“COCOANUT OIL”–REFINED OIL.

In Tariff Act July 24, 1897, c. 11, § 2, Free List, par. 626, 30 Stat. 199 (U. S. Comp. St. 1901, p. 1683), the provision for "cocoanut oil” includes refined as well as unrefined oil.

(Ed. Note.-For other cases, see Customs Duties, Dec. Dig. § 38.*] 2. Customs DUTIES ($ 30*) CLASSIFICATION-REFINED COCOANUT OIL,"COCOA

BUTTERINE.

Refined cocoanut oil is not "cocoa butterine,” within the meaning of Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 282, 30 Stat. 172 (U. S. Comp. St. 1901, p. 1652).

[Ed. Note.-For other cases, see Customs Duties, Dec. Dig. $ 30.*

For other definitions, see Words and Phrases, vol. 8, p. 7005.) 3. Customs DUTIES (8 38*)-CLASSIFICATION-SPECIFIC DESIGNATION.

"Cocoanut oil,” in Tariff Act July 24, 1897, c. 11, $ 2, Free List, par. 626, 30 Stat. 199 (U. S. Comp. St. 1901, p. 1085), is a more specific term than "cocoa butterine,” in section 1, Schedule G, par. 282, 30 Stat. 172 (U. S. Comp. St. 1901, p. 1652).

[Ed. Note.-For other cases, see Customs Duties, Dec. Dig. § 38.*]

Appeal from the Circuit Court of the United States for the Southern District of New York.

Appeal from a decision (166 Fed. 1011) of the Circuit Court, Southern District of New York, in a customs case. The importation in question is refined cocoanut oil. The importers in their protest claimed that it was entitled to free entry as "cocoanut oil,” under Tariff Act July 24, 1897, c. 11, § 2, Free List, par. 626, 30 Stat. 199 (U. S. Comp. St. 1901, p. 1685). The collector assessed it for duty under section 1, Schedule G, par. 282, of said act (30 Stat. 172 [U. S. Comp. St. 1901, p. 1652)), which reads as follows:

"Cocoa butter or cocoa butterine, three and one-half cents per pound.”

The Board of General Appraisers affirmed the action of the collector, and the Circuit Court affirmed the Board. The importers appeal. Reversed.

Comstock & Washburn (J. Stuart Tompkins, of counsel), for importers.

D. Frank Lloyd, Deputy Asst. Atty. Gen. (William A. Robertson, Sp. Atty., of counsel), for the United States.

Before LACOMBE, COXE, and NOYES, Circuit Judges.

NOYES, Circuit Judge (after stating the facts as above). The term "cocoanut oil” in the free list is broad enough to include refined as well as unrefined oil. The merchandise in question is refined cocoanut oil, and consequently it is entitled to free entry unless it is more specifically provided for elsewhere.

The Circuit Court and the Board of Appraisers apparently held that the merchandise was properly assessed for duty as "cocoa butterine” because the importers had failed to show that it was not suitable for use as a substitute for cocoa butter.

We are by no means certain that the importers, having shown that the provision of the free list applied to this article, were obliged to go further and offer evidence to negative the application of the cocoa butterine paragraph. Refined and unrefined cocoanut oil might both be used as substitutes for cocoa butter without making “cocoa butterine" a more specific designation for them than "cocoanut oil."

But, assuming that the burden was upon the importers to show the nonapplication of the "cocoa butterine” paragraph, we think that they sustained it. We are fully satisfied from the evidence that refined cocoanut oil is not cocoa butterine, and that if it could be used as a substitute for cocoa butter, still it is more specifically described in the provision of the free list than in paragraph 282 (Act July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 172 (U. S. Comp. St. 1901, p. 1652]).

The case of United States v. Oriental American Co. (C. C.) 129 Fed. 249, T. D. 25,179, is directly in point and is approved.

The decision of the Circuit Court is reversed.

(176 Fed. 96.)

E. L. WATROUS MFG. CO. V. AMERICAN HARDWARE MFG. CO.

(Circuit Court of Appeals. Seventh Circuit. January 5, 1910.)

No. 1,326.

PATENTS (8 328*)-INFRINGEMENT-Door CHECK AND CLOSER.

The Bailey patent, No. 652,828, for a door check and closer, as limited by its terms to meet the requirements of the Patent Office, in view of the prior art, held not infringed.

Appeal from the Circuit Court of the United States for the Northern District of Illinois.

Suit in equity by the E. L. Watrous Manufacturing Company against the American Hardware Manufacturing Company. Decree for defendant (161 Fed. 362), and complainant appeals. Affirmed.

The bill in the court below was to restrain the infringement of letters patent No. 652,828, issued to Herbert L. Bailey, July 3, 1900, for an improvement in door checks and closers. Upon hearing, the bill was dismissed for want of equity. The facts are stated in the opinion.

Wallace R. Lane, for appellant.
Henry L. Clapp, for appellee.
Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

GROSSCUP, Circuit Judge. Appellant's patent is illustrated in the following diagram:

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The operation of the device patented is clearly described in the descriptive portion of the patent, especially when read in connection with Fig. 4 of the diagram, as follows:

"Referring by letter to the accompanying drawings, A indicates the doorframe; B, a pin or projection depending from the top of the frame; C, the door ; D, a bracket secured to the inner side of the door near the top thereof, and E a bifurcated jaw pivoted to the bracket and adapted and arranged to engage the pin B upon the door-frame when the door is closed. The pivoted bifurcated jaw is provided with an angular tallpiece or projection F, adapted and arranged to engage a shoulder G upon the bracket when the jaw is swung out or extending in position to engage the pin on the door as the door swings to. A spiral spring H is secured at its ends, respectively, to the bracket and to the jaw at such points as that it shall swing across the dead-center formed by its two points of attachment and the pivot connecting the jaw to the bracket, so that when the jaw is open—that is, swung out in the position shown in Fig. 3—the contractile force of the spring tends to yieldingly maintain the jaw in such position. When, however, the jaw is forcibly swung upon its pivot, as by engagement therewith of the pin B, as soon as the jaw has swung sufficiently for the spring to pass the dead-center the contractile force thereof will tend to draw the jaw inward to the position illustrated in Fig. 2. This tendency of the spring causes the device to forcibly close the door after the door has been checked by the engagement of the jaw with the pin B, the checking force resulting from force necessary to swing the spring across the dead-center. Of course when the door is forcibly drawn open the jaw will be caused to swing out again in the opposite direction, and the shape of the notch therein and the location of the pin B are such that at the time the jaw becomes disengaged from the pin the jaw will have been swung outward on its pivot until the spring H has passed the dead-center, when the parts will be retained in this position until the door is again closed."

The functions of the device are to use the spring, first, as a buffer, to resist the strength of the slam of the door, and secondly, as a means to pull the door shut, and to hold it shut-these functions being brought about in succession by the arrangement of the spring and the frog, whereby, due to the angle of the frog, the pressure of the spring is exerted against the forcible closing of the door until the dead center has been passed, but the dead center passed, the tension of the spring is exerted toward drawing the door shut and holding it shut.

Bailey's claim, as originally filed and as subsequently allowed (the interlineations and the erasures indicating the changes in the claim as originally applied for, and showing it as finally allowed), is as follows:

"In a door check and closer, the combination with a bracket secured to the near the upper edge thereof

depending from the top of the door frame door A and a pin or projection on the third telji tette

of a bifurcated jaw pivoted to the bracket and adapted and arranged to engage said pin, a spring secured at its ends, respectively, to said jaw and bracket so as to swing across the dead center when the jaw is swung upon its pivot and a stop for said jaw, substantially as described.”

The original claim being disallowed on the following citations: Becker, #334,087, Dec. 14, 1836, Door Checks and Closers, and Mallory, #512,202. Jany. 2, 1894, 'Door Checks-Trippers' and German patent to lIoing, #86,732, Door Checks. The most that applicant has done is to add the spring of Mallory to the device of Hoing.”

Thereupon the amendments were made, as indicated in the insertions and erasures.

An inspection of these patents, and of the patent of Conklin, No. 589,418, and the English patent of Schou, No. 10,955, convinces us that the claim, as thus filed, was too broad-Mallory, Conklin and Schou clearly embodying the functions and the arrangement of angle and frog, whereby, upon the passing of the dead center, the line of draft is changed, as above set forth. The mechanical adjustments, only, are somewhat different, and by amending the claim upon these citations, Bailey has limited himself to the mechanical respects in which his device differs from the preceding devices.

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Considering the Bailey patent, therefore, as a limited one, the Wells device, patent No. 770,837, does not answer to the call of his claim. True, it reaches the same result, and through the performance by the device of the same functions, but in this larger respect it follows only the prior art. It does not use a bracket secured to the door "near the upper edge thereof” (and this is one of the amendments that saved the Bailey patent in the Patent Office from citations of the prior art); nor is "a pin or projection depending from the top of the door frame" employed to engage with the jaw--another amendment that saved the Bailey patent in the Patent Office from the prior art. The Bailey patent, in terms being so limited-and made so to meet the requirements of the Patent Office—we are not at liberty to enlarge or alter it.

The decree of the Circuit Court is affirmed.

(176 Fed. 99.)

JONES et al. v. F. A. HARDY & CO.
(Circuit Court of Appeals, Seventh Circuit. January 4, 1910.)

No. 1,557.
PATENTS ($ 328*)-INFRINGEMENT-EYEGLASSES.

The Finch patent, No. 666,928, for eyeglasses, construed, and held not infringed. Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.

Suit in equity by Edwin T. Jones and others against F. A. Hardy & Co. Decree for defendants, and complainants appeal. Affirmed.

For opinion below, see 162 Fed. 320.
H. P. Doolittle and Wm. M. Stockbridge, for appellants.
L. M. Hopkins, for appellees.
Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

BAKER, Circuit Judge. Appellants' bill for alleged infringement of patent No. 666,928, January 29, 1901, to Finch, assignor, was dismissed for want of equity on the ground that appellees' device did not infringe.

The claim reads:

"In eyeglasses the combination, with the eyeglass-frame or lens-mountings, of a bridge having bends at the extremities of its bow portion, said bends being substantially perpendicular to the plane of the lenses, and projections extending forwardly from the bends to the frame or lens-mountings, and springheld lever-arms extending across the bridge, and suitably fulcrumed on the frame or mountings, their inner extremities or nose-pieces being normally spring-pressed toward the bow of the bridge, whereby there is co-operative gripping action between the nose-pieces of the lever-arms and the bow of the bridge, in a plane substantially perpendicular to that of the lenses."

The bridge described in the claim is the "saddle-bridge" of the prior art, quite generally used in spectacles; that is, in glasses having holding-arms that extend back over the ears of the wearer. Spring-held lever-arms, with nose-pieces at the inner ends thereof, were likewise old, and had frequently been used in eyeglasses or "nose-pincers." We find it unnecessary to set forth the prior art in relation to the controversy whether Finch was broadly entitled to a monopoly of the

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