and sell various articles of the jewelry of the design invented by the complainants, and secured to them by their letters patent. Responsive to that charge, the respondents deny the same, and aver that the same is not true; and they also insist that the claim is bad, because it embraces more than one letter of the alphabet, which proposition is so obviously without merit that it is not deemed necessary to enter into any discussion of the topic. Perry v. Starrett, 14 O. G. 599; Simonds on Design Patents, 79. Speaking in the general sense, it is doubtless true that the test of infringement, in respect to the claims of a design patent, is the same as in respect to a patent for an art, machine, manufacture, or composition of matter; but it is not essential to the identity of the design that it should be the same to the eye of an expert. If, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same; if the resemblance is such as to deceive such an observer, and sufficient to induce him to purchase one, supposing it to be the other, the one first patented is infringed by the other. Gorham Manuf'g Co. v. White, 14 Wall. 511, 528. Apply that rule to the case before the court, and it is so obvious that the charge of infringement is sustained by the proof, and by the comparison of the opposing exhibits, that it is scarcely necessary to give the matter any further examination. Both the testimony of the complainants' expert, and the comparison of the exhibits made by the court, are decisive that the manufacture by the respondents is, in the sense of the patent law, substantially the same as that of the complainants, which show that the complainants are entitled to an account. Decree for complainants. MILLER and others v. BUCHANAN and another. (Circuit Court, S. D. New York. August 21, 1880.) 1. PLEADING-ANSWER-IMPERTINENCE.-The answer of the defendant contained, inter alia, the following language: "Further answering, these defendants admit, on information and belief, that a decree was rendered in the suit of the above-named complainants against S. J. Foree et al., at the date as alleged in said bill; but these defendants, on like information and belief, deny that said decree was rendered after full consideration, but, on the contrary, aver, on such information and belief, that the said decree was made, and said finding had, without a full reading of the proofs in the cause, or a careful consideration of the briefs of the counsel filed therein; the court, as these defendants are advised and believe, without taking time to consider, deciding said cause and granting said decree even before counsel had completed the argument and presentation of the same." Held, upon exception, that such language was neither impertinent nor scandal ous. 2. SAME-SAME-INSUFFICIENCY.-When a bill for the infringement of a patent substantially alleges that the defendants have used the process claimed in the first claim of the patent, the answer is not insufficient for want of a specific denial of such allegation, where such answer expressly denies that the defendants have practiced the invention described in the first claim.-[Ed. In Equity. Exceptions to Answer. This was a suit for the infringement of letters patent. The complainants excepted to the answer for impertinence and insufficiency. The matter excepted to as impertinent was as follows: "Further answering, these defendants admit, on information and belief, that a decree was rendered in the suit of the abovenamed complainants against S. J. Foree et al., at the date as alleged in said bill; but these defendants, on like information and belief, deny that said decree was rendered after full consideration, but, on the contrary, aver, on such information and belief, that the said decree was made, and said finding had, without a full reading of the proofs in the cause. or a careful consideration of the briefs of the counsel filed therein; the court, as these defendants are advised and believe, without taking time to consider, deciding said cause and granting said decree even before counsel had completed the argument and presentation of the same." Hatch & Stem, for plaintiffs. Samuel S. Boyd, for defendants. BLATCHFORD, C. J. The first exception specified that the matter excepted to is impertinent, not that it is scandalous. The bill alleges that the decision in the suit against Foree was made "after full consideration." The answer denies that it was made after full consideration, and then proceeds to allege that it was, "on the contrary," made under certain alleged circumstances, which, if proved, would go to show that it was not made after full consideration. But there is nothing in the circumstances alleged which makes the allegation scandalous, or which contains any imputation on the court. The matter excepted to is neither impertinent nor scandalous. The second exception is for insufficiency, and seems to be based on the idea that while the bill alleges substantially that the defendants have used the process claimed in the first claim of the patent, the answer does not specifically deny that allegation. But the answer expressly denies that the defendants have practiced the invention described in the first claim. The exceptions are overruled, with costs. MOCRARY V. THE PENNSYLVANIA CANAL Co. (Circuit Court, E. D. Pennsylvania. October 28, 1880.) 1. PATENT-RE-ISSUE-IMMATERIAL VARIATION FROM DEVICES IN ORIGINAL PATENT.-An immaterial difference between a re-issue and the original patent, which does not affect the mode of operation, the manner of construction, or the function performed, will not invalidate the re-issue. 2. SAME-REFUSAL OF INJUNCTION WHERE GREAT INJURY WOULD RESULT TO DEFENDANT.-Where the allowance of an injunction would cause much greater injury to respondent than benefit to complainant, the decree will be only for an account. #Reported by Frank P. Prichard, Esq., of the Philadelphia bar. This was a bill in equity complaining of the infringement of re-issued letters patent No. 5,630, for an improvement in coupling and steering canal-boats. The respondent denied the novelty of the invention, and alleged also that the re-issue was for a different invention from that described in the original invention. The case was heard on bill, answer, and proofs. J. J. Combs, for complainant. Henry Baldwin, Jr., for respondent. PER CURIAM. The bill here is founded upon a re-issued patent to the complainant for "improvement in coupling and steering canal-boats." This re-issue is alleged to be invalid, as being for a different invention from that described in the original patent. The difference between the two patents consists in a slight change in the points of attachment of the coupling and centering chain, D, to the stem of the forward boat, which appears only in the drawing attached to the re-issue. It is altogether immaterial, inasmuch as the mode of operation, the manner of construction, or the function performed are not in anywise affected. The remaining defences do not require a detailed discussion. It must suffice to say that they are not sustained. The allegation of infringement is supported by satisfactory evidence, which the respondent's proofs have not overthrown, and none of the prior patents exhibited cover the complainant's invention. There must, therefore, be a decree for the complainant; but, inasmuch as the allowance of an injunction would cause much greater injury to the respondent than benefit to the complainant, the decree will be only for an account. THE SCOTS GREYS V. THE SANTIAGO DE CUBA.* THE SANTIAGO DE CUBA v. THE SCOTS GREYS. (District Court, E. D. Pennsylvania. January 4, 1881.) 1. ADMIRALTY - COLLISION - MEETING OF VESSELS IN NARROW CHANNEL-DUTY ARISING FROM SPECIAL CIRCUMSTANCES.- Two steamships approached each other on the same side of a narrow, curving channel, across which a flood-tide was sweeping. One was deeply laden, and coming with the tide; the other, light, and stemming the tide. At the point where it seemed probable that they would meet they could not pass without danger. Held, that it was the duty of the light vessel to have slowed down until the other had passed the dangerous point, and that not having done so she was responsible for the damages caused by a collision. 2. SAME-INAPPLICABILITY OF ORDINARY RULES OF NAVIGATION.-The ordinary rules of navigation applicable to places affording ample sea-room are not applicable under such circumstances as existed in this case. In Admiralty. These were a libel and cross-libel, filed, respectively, by the steamships Scots Greys and Santiago de Cuba, to recover damages for a collision between the two vessels in the Delaware river. The collision occurred at or near a buoy which marks the eastern extremity of Horseshoe shoal. This shoal is a sandbar, somewhat resembling in shape a horseshoe, with both heels on the western or Pennsylvania shore, and the toe extending out into the river to within a short distance of the eastern or New Jersey shore, the channel curving around its eastern extremity. The collision occurred about noon, with a flood-tide and north-west wind. The Scots Greys was coming up the river, deeply laden, and the Santiago de Cuba was going down light. Both vessels were approaching the Horseshoe buoy, the Scots Greys being the nearest to it. The Santiago de Cuba blew one whistle to indicate to the Scots Greys her desire to pass to the westward, and ported her helm. This signal was not heard on, nor answered by, the Scots Greys. As the vessels continued to approach, the Santiago de Cuba again blew one whistle, which was neither *Reported by Frank P. Prichard, Esq., of the Philadelphia bar. v.5,no.4-24 |