ed on certain assignments, as shown more fully in the opinion delivered in the circuit court. 72 Fed. 777. The decree in that court was for complainant, and the defendant has appealed. George A. Mosher, for appellant. Ward & Cameron (Walter E. Ward, of counsel), for appellee. PER CURIAM. The bill was filed to restrain the infringement of a patent by the defendant, and for an injunction and accounting. The complainant's title is founded upon an agreement made in March, 1889, between the defendant and the firm of A. H. Newton & Co., by which the defendant transferred to that firm a number of patents of which he was the owner. The bill alleges that by a mutual mistake of the parties to the instrument, and by the mistake of the draftsman, the patent in suit was omitted from the enumeration of those intended to be transferred. The rights acquired under that agreement by the firm of Newton & Co. were assigned by them, in August, 1889, to Alfred H. Newton, and by him, in March, 1893, to James J. Dooley, and by Dooley, in February, 1894, to the complainant. Previous to the assignment from Alfred H. Newton to Dooley, and in December, 1891, a receiver of all the property and ef fects of said Newton was duly appointed by the supreme court of the state of New York, in proceedings supplementary to execution, founded upon a judgment obtained in that court against him. The receiver duly qualified, and on the 13th day of April, 1891, pursuant to the order of the court authorizing him to do so, sold and conveyed to one Vermilyea all the right, title, and interest of Alfred H. Newton in the patent in suit. May 5, 1895, Vermilyea sold and assigned all his right, title, and interest in the patent to the defendant. present bill was filed in January, 1895. The The evidence is overwhelming that it was the purpose of both parties to the agreement of March, 1889, to include, among the patents transferred, the patent in suit, and that it was omitted by inadvertence from the list of those mentioned in the agreement. The obstacle in the way of the complainant consists in her want of title to the patent. The proceedings supplementary to execution, as authorized by the laws of New York, are a substitute for, and in all respects have the same force and effect as, an ordinary creditors' bill. The receiver, in such proceedings, becomes invested with the title to all the property-equitable as well as legal-belonging to the judgment debtor at the time of their institution; and the court has the powers of a court of equity in such a suit to compel him to appropriate his property, including that out of the state (see Fenner v. Sanborn, 37 Barb. 610), and transfer it to the receiver, towards the satisfaction of the judgment. In Ager v. Murray, 105 U. S. 126, it was decided that, notwithstanding a patent cannot be seized and sold on execution, it can be reached by a creditors' bill, and applied to satisfy a judgment against the owner, and a transfer by him be compelled for that purpose by the court. Although in the present case the court did not-as it might have done-compel Newton to make New a written transfer to the receiver of his title to the patent, it is entirely clear that any equitable title which he may have had vested in the receiver, and passed by the sale to Vermilyea, and from Vermilyea to the defendant, by the assignment from Vermilyea. ton never acquired anything but an equitable title to the patent,the right to compel a reformation of the agreement of March 6, 1889. He did not acquire the legal title, because, without an assignment such as the statute requires to effect the transfer of a patent interest, that title remained in the prior owner, the present defendant. Wilder v. Gayler, 10 How. 498. As that equitable title had, at the date of his assignment to Dooley, passed to the receiver, and the complainant's title is derived through that assignment, she took nothing by the instrument. The decree is reversed, with costs to the appellant, and with instructions to the circuit court to dismiss the bill. WESTINGHOUSE AIR-BRAKE CO. v. NEW YORK AIR-BRAKE CO. et al. (Circuit Court, S. D. New York. October 13, 1896.) 1. PATENTS-VALIDITY AND INFRINGEMENT-AIR BRAKES. The Westinghouse patent, No. 360,070, for a fluid pressure automatic brake mechanism, construed, and held valid and infringed as to claims 1, 2, 4, and 5, and not infringed as to claim 3. 2. SAME. The Westinghouse patent, No. 376,837, for fluid pressure automatic brake mechanism, construed, and held infringed as to claim 1 (65 Fed, 99, reaffirmed), and not infringed as to claims 3 and 4. This case, which comes up for hearing upon pleadings and proofs, is a suit in equity to enjoin infringement of certain letters patent of the United States. These patents are three in number, viz.: No. 360,070, to George Westinghouse, Jr., March 29, 1887, for "fluid pressure automatic brake mechanism," complainant alleging infringement of claims 1 to 5, inclusive; No. 376,837, to George Westinghouse, Jr., January 24, 1888, for "fluid pressure automatic brake mechanism," complainant alleging infringement of claims 1, 3, and 4; and No. 393,784, to Harvey S. Park, December 4, 1888, complainant alleging infringement of claims 1, 3, 4, 5, 7, 8, 9, 10, 12, 13, 14, 15, and 16. J. Snowden Bell, George H. Christy, and Frederick H. Betts, for complainant. Frederick P. Fish and Charles Neave, for defendants. LACOMBE, Circuit Judge (after stating the facts). Judicial oninion as to the validity and construction of these three patents has been so fully expressed in the various decisions already rendered, and which are referred to below, that no extended disquisition is either necessary or proper in this court. Reference may be had to the opinions cited, for a statement of the reasons which have induced the conclusions hereinafter briefly indicated. Suit was brought in this court upon 376,837 and the Park patent, and came on for hearing before Judge Townsend, who sustained the validity of both patents, found infringement of 376,837, and noninfringement of the Park patent. Westinghouse Air-Brake Co. v. New York Air-Brake Co. (Nov. 20, 1893) 59 Fed. 581. This suit was appealed to circuit court of appeals in the Second circuit, and Judge Townsend's decision as to these two patents was affirmed. Id. (Oct. 15, 1894) 11 C. C. A. 528, 63 Fed. 962. Defendants medified their device, and the suit at bar was brought to enjoin the sale or use of their new "Quick-Action Triple Valve B." Application was made upon elaborate affidavits for a preliminary injunction, the motion was argued at great length, was duly considered by this court, and an opinion filed December 24, 1894, sustaining the va lidity of No. 360,070 (which had not been in issue in the earlier suit), and finding infringement of claims 1, 2, and 4 of that patent, and also of claim 2 of 376,837. Id., 65 Fed. 99. Suit was also brought in the circuit court for the district of Maryland on No. 360,070, to enjoin still a different form of mechanism; and the cause coming on before Judge Morris, March 11, 1895, he held claims 1, 2, and 4 to be valid, and found infringement of claim 2, but not of claims 1 or 4. Westinghouse v. Power-Brake Co., 66 Fed. 997. An appeal from the preliminary injunction issued in the suit at bar came up for hearing before the circuit court of appeals in the Second circuit, and was decided May 28, 1895. The decision sustained the circuit court as to patent 360,070, but reversed as to 376,837, on the sole ground that the question was "too doubtful to be resolved in favor of the complainant upon a motion for a preliminary injunction, and should be reserved for disposition upon the final hearing of the cause." New York Air-Brake Co. v. Westinghouse Air-Brake Co., 16 C. C. A. 371, 69 Fed. 715. An appeal from Judge Morris' decision was subsequently decided by the circuit court of appeals, Fourth circuit, November 11, 1895. That court sustained him as to claims 1 and 4 of 360,070, but reversed as to claim 2, holding that it is fatally defective in claiming only a result, and not identifying the specific means by which that result is achieved. Westinghouse Air-Brake Co. v. Boyden Power-Brake Co., 17 C. C. A. 430, 70 Fed. 816. In the light of these decisions, the questions now presented are to be disposed of. Patent No. 360,070: Claims 1, 2, and 4 were sustained by this court on motion for preliminary injunction, and infringement found. The court of appeals in this circuit has sustained that decision in these words: "We agree with the court below that the defendants' apparatus is an infringement of the first, second, and fourth claims of patent No. 360,070, and deem it unnecessary to add anything to the opinion." In the record now presented at final hearing there is nothing which calls for any modification of the opinion already expressed. To enter into any extended discussion of the case as to this patent would be a work of supererogation, inasmuch as the case in the Fourth circuit, above cited, has been taken by certiorari to the supreme court, and because of the existing difference of opinion between the courts of appeal in the two circuits has been advanced on the calendar, so that it will be submitted to that tribunal for final disposition within the current month. The fifth claim of this patent was not passed upon on the motion. It differs from the fourth only in adding a check valve to the combination of that claim. It is not disputed that defendants' device contains a check valve, and, if it be held to infringe the fourth claim, it infringes the fifth as well. The third claim contains, as an element, "a second admission of air from the auxiliary reservoir to the brake cylinder." Manifestly, this is a narrower claim than those discussed when the case was here before; and, since the patentee has chosen to make a "second admission of air" material, infringement is not found in a device which substitutes a "single admission of air," although such single admission be continuous. Patent No. 376,837: In reversing the former finding of this court as to the first claim of this patent, the court of appeals did not pass upon the merits. It held only that the question was too doubtful to be resolved upon motion for a preliminary injunction, but should be reserved for final hearing upon a complete record, where abundant opportunity has been given to reply to testimony, expert or other, and to cross-examine all witnesses. An examination of the record as it now stands has not changed the conclusion of this court as heretofore expressed, and it is therefore unnecessary to do more than refer to the former opinion as stating the reasons for holding the first claim to be infringed. The third and fourth claims have not been passed upon by this court, and were not presented to the court of appeals. Both of them contain, as an element of the combination, "a passage establishing communication between said supplemental piston and an auxiliary reservoir." The complainants contend that this passage is to be found in defendants' port, p. Inasmuch as this court finds "an auxiliary reservoir" in the space which is contained in the chamber, P, above the piston, and in the port or passage, p, below the cut-off, 14, in the sliding valve, it is manifest that there is no "passage establishing communication" between the supplemental piston and such "reservoir." If this court is right in holding that the space referred to is "an auxiliary reservoir." then it abuts directly on the supplemental piston, and any "passage" between the two is dispensed with. For this reason it is thought that the third and fourth claims of No. 376,837 are not infringed. Park patent No. 393,784: The court of appeals in this circuit has held that this is a subordinate patent, and must receive a narrow construction. The feature which Park introduced into the quickaction operation was the working of the emergency valve piston by train-pipe pressure. This specification states that the object of the invention is "to enable a better, quicker, and more certain action to be had of pneumatic controlling devices for air brakes, and at the same time have the valve controlling the direct passage of the pressure from the train pipe to the brake cylinder under the direct action of the train-pipe pressure." In describing the operation of his device, the patentee says: "The train-pipe pressure through the pipe, Z, will act on the under side of the valve, S, opening the valve," etc.; and also: "It will be thus seen that the valve, S, is controlled in both opening and closing by the train-pipe pressure, and, with this construction, the train-pipe pressure performs the office of both opening and closing the valve." Many of the claims contain words describing the valve or the valve and pas sages as "actuated by train-pipe pressure," or "controlling the pressure to the brake cylinder direct by train-pipe pressure," or some equiv alent phrase. Other claims there are which contain no such phrase; but, since Park's invention was a device for working the emergency |