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The defendant's infringing machine does not use a counterweight, but does employ all the essential features of the combination described in claims 3, 4, and 5 of the Parsons patent, and therefore is an infringing machine. The decree of the circuit court is reversed, with costs, and this case is remanded to that court, with directions to enter a decree for the appellant in accordance with the views herein expressed.

PUTNAM, Circuit Judge, concurs as to claim 5.

(100 Fed. 459.)

HIGGIN MFG. CO. v. SCHERER.

SAME V. MURDOCK.

(Circuit Court of Appeals, Sixth Circuit. February 12, 1900.)

Nos. 700, 774.

PATENTS-VALIDITY-SHELL FOR WHEEL HUBS.

The device described in the Higgin patent, No. 480,093, for an improved band-shell for wheel hubs, is not so clearly lacking in patentable novelty, in view of the general prior art, of which the courts can take judicial notice, as to overcome the presumption of validity arising from the issuance of the patent, and justify a court in sustaining a demurrer on that ground to a bill for its infringement.

Appeal from the Circuit Court of the United States for the Eastern District of Michigan.

G. B. Parkinson, for appellant.
Charles F. Burton, for appellee.

Before TAFT, LURTON, and DAY, Circuit Judges.

TAFT, Circuit Judge. This suit is brought upon patent No. 480,093, issued August 2, 1892, to Henry Higgin, for an alleged new and useful improvement in band-shells for wheel hubs. The specification describes the invention as follows: C is a band-shell, preferably of annealed brass, adapted to take over and closely embrace the band.

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The shell has an inturned flange, c, adapted to take over and into the point of the band, and a groove or depression, c', adapted to take into a corresponding groove or depression b1, in the band. The shell is secured to the band by pressing it thereover until the depression in the shell takes into the depression in the band; the shell having sufficient spring to insure its closing tightly over the band. The joint thus made locks the shell in position, and affords a simple and ef ficient means of securing it in position without the use of special tools or machinery. The hub is more thoroughly protected, and a neater finish secured, when the shell is extended over substantially the entire surface of the band, thereby protecting and concealing the joints of the bands, with their fastening devices. By providing the inner end of the band with an annular shoulder or bead-ring, b, and causing the inner end of the shell to abut against that shoulder as shown in Fig. 3, the openings in the band are thoroughly protected, and an exceptionally clean-cut appearance is obtained. The bands may be manufactured with the grooves ready cut, or the grooves may be made in bands, not thus provided, by simple and inexpensive tools, thus enabling the carriage maker to apply the shells without the necessity

of providing a stock of bands especially prepared for that purpose. Higgin claims as his invention:

"(1) As an article of manufacture, a shell for hub-bands, having an inturned flange adapted to take over the points of the hub-band, and provided with an annular depression, substantially as and for the purpose specified. (2) As an article of manufacture, a shell for hub-bands, adapted to engage with the point of the hub-band, provided with an annular depression, and having a corrugated or knurled portion between its outer end and the annular depression, substantially as and for the purpose specified. (3) The combination, with the hub-band having an annular groove, of a shell adapted to engage with the point of the band, and provided with an annular depression adapted to take into the groove on the band, substantially as and for the purpose specified. (4) The combination, with the hub-band, B, having groove, b1, and beadring, b, of the shell-band, C, having flange, c, and depression, c1, and adapted to abut against the bead-ring of the band, substantially as and for the purpose specified."

The first ground of demurrer to the bill is that the patent upon which it is founded

"Is not valid, and was not at the time of its issuance a valid patent, for that the device therein shown and described was old, well known, and in common use, to such an extent, and so commonly, that the court will take judicial knowledge thereof; that it was found in very many articles in daily use, such as lamps, candlesticks, electric light fixtures, canes, umbrellas, capsules for covering bottles, pepper and salt boxes, and in many other articles of common, ordinary, and general use."

The district court sustained the demurrer.

We are not sufficiently satisfied, after an examination of the averments of the bill setting out the condition of the prior art, and the extent to which this device has gone into use, that it is so plainly unpatentable as to justify the sustaining of the demurrer. The battering, strain, and general rough usage to which the band-shell of the wagon hub is ordinarily subjected might lead the ordinary mechanic away from a device of such simple construction as the one here in controversy. Certainly the articles in which the same principle is applied for the fastening of caps or coverings do not present the same necessity for stout resistance to heavy blows as does the band-shell here patented. Without intimating an opinion as to the conclusion which we may reach after answer and evidence, all that we now hold is that the presumption of validity from the issuing of the patent is not so clearly overcome by the application of common knowledge as to warrant us in refusing to allow the complainant to go to the issue on the proof. The decree of the circuit court is therefore reversed, with costs. And the same decree will be entered in the case of the Higgin Manufacturing Company against James Murdock, Jr. (No. 774), where the same patent and the same question are involved.

(100 Fed. 462.)

PACIFIC STEAM WHALING CO. et al. v. ALASKA PACKERS' ASS'N. (Circuit Court of Appeals, Ninth Circuit. February 5, 1900.)

No. 536.

1. PATENTS-PRELIMINARY INJUNCTION AGAINST INFRINGEMENT-REVIEW ON

APPEAL.

The decision of a judge upon an application for a preliminary injunction against infringement will not be reversed on appeal, unless it appears, after a consideration of all the evidence upon which his action was based, that his legal discretion was improvidently exercised.

2. SAME-INFRINGEMENT-REBUILDING PATENTED MACHINE.

The right of the purchaser of a patented machine to repair it does not extend to its rebuilding, so as to make a practically new machine, and such rebuilding constitutes an infringement.

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

Wheaton & Kallock, for appellants.

John H. Miller, for appellee.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

ROSS, Circuit Judge. This is a suit in equity, brought to restrain the use of four machines alleged by the complainant to be an infringement of certain letters patent issued to one Matthias Jensen and others, designed for automatically filling cans with fish, in which the court below, upon an application upon the part of the complainant for a temporary restraining order pending the hearing of the cause upon the merits, denied the application as respects the machines numbered 69, 80, and 108, respectively, and granted the preliminary injunction as respects the machine designated in the record as "the machine without a number." The present appeal is by the defendants to the suit from that interlocutory order. (C. C.) 93 Fed. 672. The law is well settled that upon such an appeal the decision of the judge who made the order will not be reversed unless it appears, after a consideration of all the evidence upon which his action was based, that his legal discretion to grant or withhold the order was improvidently exercised. Blount v. Société Anonyme du Filtre, etc., 3 C. C. A. 455, 53 Fed. 98; Jensen v. Norton, 12 Č. C. A. 608, 64 Fed. 662; Southern Pac. Co. v. Earl, 27 C. C. A. 185, 82 Fed. 690; Thompson v. Nelson, 18 C. C. A. 137, 71 Fed. 339; Duplex Printing-Press Co. v. Campbell Printing-Press & Manufacturing Co., 16 C. C. A. 220, 69 Fed. 252. The record shows that the machine in respect to which the injunction was granted is one of six machines made under and by virtue of the patent upon which the bill is based, all of which were acquired by the appellant Pacific Steam Whaling Company prior to the time of the acquisition by the appellee of the Jensen patent. Those machines had been used by the whaling company at its various places of business in Alaska during the packing season for many years. The packing season ex

son.

tends but a few weeks each year, and after it is over it has been the practice of the whaling company to bring its machines to San Francisco, to have them put in proper order for the succeeding seaThe business of the appellant F. A. Robbins Press Works is that of repairing machinery, and to that company the whaling company took the four machines mentioned in the bill. Those numbered 69, 80, and 108, respectively, the court below found from the evidence introduced upon the hearing, were repaired by the press company, within the rule of law applicable to the matter, but the machine referred to in the bill as being without a number the court below found was entirely dismantled, except its legs, and a new machine built thereon. That fact is practically admitted by counsel for appellants, as well as in affidavits filed on their behalf at the hearing. It is further practically conceded on behalf of the appellants that this constituted an infringement of the complainant's patent. That it was such does not admit of question. Wilson v. Simpson, 9 How. 109, 13 L. Ed. 66; Mitchell v. Hawley, 16 Wall. 544, 21 L. Ed. 322; Young v. Foerster (C. C.) 37 Fed. 203; Singer Mfg. Co. v. Springfield Foundry Co. (C. C.) 34 Fed. 393; Gottfried v. Brewing Co. (C. C.) 8 Fed. 322; Shickle, Harrison & Howard Iron Co. v. St. Louis CarCoupling Co., 23 C. C. A. 433, 77 Fed. 739. Nor is the title of the complainant to the patent sued upon, or the validity of the patent, anywhere denied in the record; and, so far as its validity is concerned, it could not be very well denied by the whaling company, since the machines used by it are averred to have been made and sold under and by virtue of that patent. The case, therefore, presented to us is one in which the complainant has a valid title to a valid patent, which the defendants to the suit have confessedly infringed. Under such circumstances, the showing must be a very strong one that would justify an appellate court in reversing an or der granting a temporary injunction. It is contended on behalf of the appellants that they are solvent, and amply able to respond in money damages, and that the record shows that the complainant would suffer no irreparable damage by permitting the use of the infringing machine by the whaling company. At the same time it is contended on behalf of the appellants that, if the whaling company is not permitted to use the infringing machine pending the liti gation, it will suffer irreparable damage. As the record shows that the complainant and the whaling company are both engaged in the same business, of packing and selling salmon, it is difficult to see how the damage that the whaling company would sustain by being deprived of the use of the infringing machine would be any more irreparable than that sustained by the owner of the patent engaged in the same business if the infringing machine was permitted to be used by its competitor. Indeed, it would seem to be clear that the whaling company could suffer no irreparable damage by being deprived temporarily of the use of the machine in question, whereas the complainant's damage would very likely be irreparable; for it appears that prior to the construction of these can-filling machines salmon was packed by hand, and that the difference in the packing is mainly in the cost; that by hand being much slower, and there

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