U. S. 423, 433, 11 Sup. Ct. 150; Andrews v. Thum, 15 C. C. A. 67, 67 Fed. 911.

Nor does the fact that better material is used in constructing the device, such material being well known as adapted to the purpose for which it is used, make the device patentable.

In Hotchkiss v. Greenwood, 11 How. 248, 266, where it was held that the substitution of porcelain for metal in making door knobs of a particular construction was not patentable, the court said:

"No one will pretend that a machine made, in whole or in part, of materials better adapted to the purpose for which it is used than the materials of which the old one is constructed, and for that reason better and cheaper, can be distinguished from the old one, or, in the sense of the patent law, can entitle the manufacturer to a patent. 串 It may afford evidence of judgment and skill

in the selection and adaptation of the materials in the manufacture of the instrument for the purposes intended, but nothing more."

See, also, Hicks v. Kelsey, 18 Wall. 670; Dunbar v. Myers, 94 U. S. 187, 197; Florsheim v. Schilling, 137 U. S. 64, 11 Sup. Ct., 20.

Applying these general principles to the facts of this case, we are of opinion that the conclusions arrived at by the circuit court were correct. The judgment of the circuit court is affirmed, with costs.

CLUNE v. MADDEN et al.

(Circuit Court, D. Indiana. November 5, 1896.)

No. 9,231.

1. PATENTS-INVENTION-FOLDING BEDS.

There is no invention in the use of a pin or hook on the back of a folding bed lounge to automatically engage with an eye on the headrest when the two sections are folded together, thus holding the back firmly in place.

2. SAME.

The Clune patent, No. 394,957, for a folding bed lounge, is invalid as to the first claim for lack of invention.

This was a suit in equity by Michael Clune against Thomas Madden and others for alleged infringement of a patent.

Chester Bradford, for complainant.

V. H. Lockwood, for defendants.

BAKER, District Judge. This is a suit in equity in the usual form for infringement of the first claim of letters patent No. 394,957, issued to the complainant, December 25, 1888. The claim involved reads as follows:

"(1) A bed lounge, composed of two folding sections, hinged together, the lower one having a back rigidly attached thereto, and a fastening for the same, composed of two parts, one of which is fixed at or near the top of the inside of the head of the upper folding section, the other at or near the top of the back, so that when the lounge is folded up the two parts will engage with each other, securing the headrest of the frame to the back, substantially as shown and described."

The defenses relied on are noninvention and noninfringement. The only novelty in the combination claimed by the complainant con

sists in the use of an eye on the headrest of the lounge and a pin or hook on the back so placed that the two will automatically engage when the two sections are folded together, and thus hold the back firmly in place. In view of the common and diversified use of similar devices for the accomplishment of substantially similar purposes, and especially in view of the Braun patent, No. 177,462, it seems impossible to find in the claim involved in this suit any such advance in the prior state of the art, or any such new and useful combination, as is necessary to constitute invention. In my opinion, mere mechanical skill, without any exercise of the inventive faculty, would have suggested to any ordinarily skillful mechanic familiar with the manufacture of bed lounges, the use of a pin or hook to be inserted in the eye found on the headrest of the Braun patent to support the back of the lounge, and hold it firmly in place. Indeed, such a pin or hook is distinctly suggested in the specifications of the Braun patent in these words:

"The back, C, is provided with a groove, hook, or spring-catch, or other device for securing the upper head section on the lower stationary section, and to the back when folded over; the lower part to form the head of the lounge."

The foregoing views make it unnecessary to consider the question of infringement. The bill will be dismissed for want of equity, at complainant's costs.

October 26, 1896.)

MCDOWELL et al. v. KURTZ.

(Circuit Court of Appeals, Third Circuit.

No. 11.

1. PATENTS-INFRINGEMENT-PRELIMINARY INJUNCTION.

The proof of infringement in this case was so clear and free from doubt as to justify a preliminary injunction.

2. SAME-PUBLIC ACQUIESCENCE.

Where plaintiff's have manufactured and sold their device without opposition for upward of five years, there is sufficient proof of public acquiescence; and it is immaterial that a large number of their devices were not marked "Patented," when it appears that enough were so marked to give general notice of the patent.

8. INJUNCTION-DISTRICT JUDGE HOLDING CIRCUIT Court.

The authority of a district judge, when holding a circuit court under Rev. St. § 609, is co-extensive with that of any judge sitting in the same court; and the restrictions of Rev. St. § 719, relative to the granting of injunctions by district judges, do not apply.

4. PATENTS-PROTECTION FOR PIPE THREADS.

The Kurtz patent, No. 440,168, for a band or ring for protecting the screw threads of pipes, held valid and infringed.

Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.

This was a suit in equity by Jacob H. Kurtz, trading as the National Manufacturing Company, against D. F. McDowell and others, trading as the Pittsburgh Ring Company, to restrain the infringement of a patent. From an interlocutory order granting a preliminary injunction, defendants appeal.

James C. Boyce, for appellants.

Wm. L. Pierce, for appellee.

Before ACHESON and DALLAS, Circuit Judges, and WALES, District Judge.

ACHESON, Circuit Judge. This is an appeal from an interlocutory order or decree granting a preliminary injunction restraining the appellants, who were the defendants below, from infringing letters patent No. 440,168, for a band or ring for the protection of the screw threads of pipes, granted on November 11, 1890, to John A. Kurtz, and now owned by the appellee, the plaintiff below. The court below held that the defendants infringed the first claim of the patent, which claim is as follows:

"The device for protecting the screw-threaded ends of pipes, consisting of a band provided with flanges on each end of the band, and adapted to engage the screw threads of the pipes, substantially as set forth.”

The court below was of the opinion that none of the prior devices brought to its attention anticipated the device of the Kurtz patent, and that the bands or rings manufactured by the defendants were a clear infringement of the first claim of that patent. The court further found that for upward of five years the plaintiff had continuously manufactured rings under the patent, and had built up a large trade therein, without any attempt to infringe on the part of others, until the defendants, "who, during negotiations for a contemplated purchase of complainant's plant, business, and patents, had full opportunity to examine complainant's methods, inspect his machinery, and learn the growing character of his business," began, shortly before the bringing of this suit, to manufacture the rings complained of. Four objections have been urged to the decree which is before us for review, and these objections we will consider in the order in which they are stated in the brief of the appellants' counsel.

1. It is insisted that the alleged infringement is not shown to be clear and free from doubt. It is to be noted, however, that the patented device is simple in construction and operation, and is easily understood. The case is one in which infringement is determinable upon a mere inspection of the two rival devices. After a thorough examination of the earlier patents, which were cited in the court below in opposition to the allowance of an injunction, and are relied on here as sustaining assignments of error, we are not able to see that the Kurtz invention was anticipated by any of them. It may be that this field of invention was narrow when Kurtz entered it, and that the first claim of the patent in suit is to be construed strictly. Nevertheless, the owner of the patent is to be protected from colorable changes in matters of pure form. The judgment of the court below was that the difference between the protecting ring of the Kurtz patent and the defendants' ring was one of mere form, and not of substance, and that, "so far as means, methods, and functions go, the gist of the two devices is the same." This conclusion appears to us to be correct.

77 FEDERAL REPORTER.

We cannot discover any material difference between the two devices. They do the same work in substantially the same way, and accomplish substantially the same result.

2. The second stated objection to the interlocutory decree is "that the patent has never been sustained by a court, nor sufficiently acquiesced in by the public." To this it is enough to say that, until the defendants began to infringe, the plaintiff had no occasion to apply to the courts to protect his patent, and that, if public acquiescence need be shown to entitle the owner of a valid patent to a preliminary injunction against clear infringement, such acquiescence satisfactorily appears here in the facts stated in the opinion of the court below. It is shown, indeed, that a large number of the plaintiff's rings were not marked "Patented"; but a sufficiently large number of them were so marked to give general notice that the ring was patented. There was ample proof of public acquiescence.

3. We do not think that sufficient doubt as to whether Kurtz was the original inventor of the patented ring to defeat the application for the preliminary injunction was raised by the affidavit of Harry Hipwell, especially in view of the rebuttal affidavits upon that subject.

4. The fourth objection is based upon the provisions of section 719 of the Revised Statutes of the United States, relating to the issuing of an injunction by a district judge. But that section does not apply to this case. Vulcanite Co. v. Folsom, 3 Fed. 509. The injunction here was not issued by the district judge under section 719. When the case was heard below, and the injunction was granted, the district judge was holding the circuit court, under section 609, Rev. St. U. S.; and his authority was co-extensive with that of any other judge sitting in the same court. Robinson v. Satterlee, 3 Sawy. 134, 140, Fed. Cas. No. 11,967. Therefore, his action in granting the injunction had the same force and effect as if the court had been held by the circuit justice, or a circuit judge, or by a full bench. Industrial & Mining Guaranty Co. v. Electrical Supply Co., 7 C. C. A. 471, 58 Fed. 732, 737. The decree appealed from is the decree of the circuit court.

Upon a careful consideration of the whole record it seems to us that the proofs justified the allowance of a preliminary injunction, and therefore the interlocutory decree granting the same is affirmed.

SCHENCK et al. v. DIAMOND MATCH CO.

(Circuit Court of Appeals, Third Circuit. November 9, 1896.)

No. 23, September Term, 1896.

PATENTS-INVENTION-INFRINGEMENT-FRICTION-MATCH DEVICE.

The Pusey patent, No. 483,166, for a friction-match device designed to be carried in the pocket, held to show sufficient invention to sustain the patent, it appearing that the device, though simple, was new in the art, and was cheap and convenient, and supplied a distinctiy felt want; and the patent also held infringed. 71 Fed. 521, affirmed.

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

This was a suit in equity by the Diamond Match Company against John H. Schenck and John M. Moore, trading as Dr. J. H. Schenck & Sons, and the Binghamton Match Company, for alleged infringement of letters patent No. 483,166, issued September 27, 1892, to Joshua Pusey, for a friction-match device, designed to be carried in the pocket. The circuit court sustained the patent, found infringement, and entered a decree accordingly. 71 Fed. 521. fendants appealed.

Charles A. Brodek, for appellants.

Joshua Pusey, for appellee.

De

Before ACHESON, Circuit Judge, and BUTLER and WALES, District Judges.

BUTLER, District Judge. The decree of the circuit court must be affirmed. The record shows nothing to sustain either of the defenses set up. The defendants' device is undistinguishable from the plaintiffs' except in slight unimportant formal differences-apparently introduced to avoid liability for infringement.

The other defense-lack of patentable novelty-presents little greater difficulty. While the invention displayed is of a low or der, it is sufficient to support the patent. The device, though simple, was new in the art, and was cheap, convenient, and supplied a want distinctly felt. Manufacturers of matches immediately recognized its usefulness, and sought the privilege of making it. The defendants were among the first to do so, and seem to have entertained no doubt respecting the validity of the patent, until their efforts to obtain such privilege on their own terms had failed. The defendants may well be regarded as experts in the art, and their conduct was an unbiased and emphatic expression of judgment in favor of the patent; their present expression and that of their experts are probably entitled to less weight.

The effort to prove anticipation by the Farnhams failed. Without considering the question whether this defense is admissible under the pleadings, it is sufficient to say that we are satisfied the defense is not proved. Nothing is shown but occasional, tentative experiments by the Farnhams, made years ago to meet their personal and temporary wants. Precisely what they accomplished is uncertain; no sample of their device is exhibited. Whatever it may have been it was never applied to nor intended for the public use; it was a mere makeshift, for a temporary purpose, which disappeared with the occasion that called for it, never known to anybody but the Farnhams, and now is almost forgotten by them.

The decree is affirmed.

v.77F.no.1-14