the machinery or its adjustments, and who only used it for crush ing or pressing cereals, the purpose for which it was made and sold. If it was already known to those skilled in the art that increased pressure would produce the desired result, so that the public did not need to be told either what pressure to apply, or that unusual pressure was to be applied, in order to secure the desired degree of hardness in the flakes, there would have been no room for invention, and nothing to sustain a patent, in making the requisite adjustments for this purpose. If, on the other hand, it did require invention to discover that a particular adjustment, or a particular temperature in the rolls, would produce a new and useful product, different from any theretofore obtained by the use of rolls upon crushed cereals, it would be essential to the validity of a patent resting on such a discovery to show clearly and unmistakably that the invention consisted in and depended upon such adjustment or temperature, giving some intelligent guide as to what degree of closeness, or of speed, or of temperature, of the rolls was required, or, at least, what degree of cooking was essential to the invention. The words "pressing and drying" convey no indication that the rolls are to be set closer than they are set when ordinarily in use for crushing corn. On the contrary, they convey the idea that they are to be set further apart, so as to press and dry, and not crush, the granules. The term "warm-rolling" conveys no information or suggestion that the rolls are to be raised to a degree of heat sufficient to convert starch into dextrine. This term conveys no definite idea as to the degree of heat to which the rolls must be raised in producing the dry, hard flakes of the patent. The term "warm-rolling" does not naturally suggest to the mind such a degree of heat as is necessary to convert starch into dextrine.

The process does not seem to me to present anything novel in any of its steps, or materially different from what was familiar in the methods of the treatment of grain in common use. And the product of the process is not shown by the specification and claims to constitute any new or useful product, nor can the flake, containing dextrine as its most important and distinguishing feature, be produced without subjecting the wet granules of corn to a cooking temperature, which is not disclosed in the patent. I do not think the complainant is entitled to maintain its patent for a product of corn in the form of a flake, which consists, in part, of soluble starch and dextrine. The applicant, at and for some time after the granting of the patent, warmed his rolls artificially, and only dispensed with such artificial heat after discovering that the friction of the rolls produced sufficient heat to secure the desired degree of dryness and hardness in the flake.

I am not satisfied that the defendants infringe the complainant's process, even if its patent were held valid. The defendants sprinkle their granules of corn with water at the temperature of from 80° to 120° Fahrenheit, and carry them through a system of conveyors to a bin, from which, in about three hours, they are elevated and passed between rolls having only such heat as is produced by the

friction of the rolls. In view of all the evidence in the case, I am of opinion that the complainant has failed to maintain its bill, and that the same must be dismissed, for want of equity, at its costs.

CAMPBELL PRINTING-PRESS CO. v. PRIETH et al.

(Circuit Court, D. New Jersey. January 7, 1897.)

1. PATENTS-PRELIMINARY INJUNCTION-ADJUDICATIONS IN OTHER CIRCUITS. Upon an application for a preliminary injunction, based upon a final decree in another circuit, the court, so long as that decree stands unrevoked and unmodified, will not consider any suggestions that it is irregular and of doubtful validity.

2. SAME-BOND FOR DAMAGES.

Upon an application for a preliminary injunction, based upon a final decision in another circuit, where the case made is practically the same, and no special hardship to defendant is shown, the court will not permit a bond to be given to respond in damages, in place of the temporary injunction prayed. This was a suit in equity by the Campbell Printing-Press Company against Benedict Prieth and others, to restrain the use of a machine alleged to be an infringement of a patent relating to printing presses. The cause was heard upon an application for an injunction pendente lite.

Louis W. Southgate, for complainant.
Alexander & Dowell, for defendants.

KIRKPATRICK, District Judge. The facts of this case, as presented by the bill of complaint and answering affidavits, are these: That the complainant is the assignee of a patent, No. 376,053, issued to one Stonemetz for improvements in printing presses; that it has brought suit against Marden & Rowell in the United States circuit court in the district of Massachusetts for the improper use of a machine similar to the one now complained of, charging it to be an infringement upon said patent; that, after hearing, the said circuit court adjudged the complainant's patent to be valid, held the Marden & Rowell machine to be an infringement, and enjoined its use by them. From this decree an appeal was taken, and afterwards dismissed, on motion of the defendants in said suit, without prejudice. A new hearing was asked on the ground of newly-discovered evidence, and granted; but such proceedings were had that at this time there stands a final decree in the United States circuit court for the district of Massachusetts, dated December 16, 1895, adjudging the Marden & Rowell machine to be an infringement of the complainant's patent, and an injunction against the use of the infringing machine. It also appears that the Marden & Rowell machine was manufactured by the Duplex Printing-Press Company; that the suit against Marden & Rowell was defended by counsel of the Duplex Company; that, after the entry of the said interlocutory decree, a suit was instituted by the complainant against the Duplex Printing Press Company in the United States circuit court in the district of Michigan to restrain the manufacture by them of ma

chines similar to the Marden & Rowell machine; that an injunction was granted by the United States circuit court for the district of Michigan; and that, upon an appeal to the circuit court of appeals of the Sixth circuit, the defendants were permitted, for reasons given, to complete the machines then in course of manufacture upon giving a bond in the sum of $25,000. It is admitted by the defendants that the machine now being used by them is similar to the Marden & Rowell machine, which was the subject-matter of the litigation in the United States circuit court of Massachusetts, and it is alleged by them to be one of the machines for the manufacture of which a bond was exacted in the circuit court of appeals of the Sixth circuit. It is a well-settled principle, and one beyond controversy, that when a full, fair, and bona fide hearing has been had upon the merits of the case, and the validity of a patent, or any claim thereunder, passed upon by one circuit court, such determination shall, upon an application for a preliminary injunction, be sufficient ground for granting the same by another circuit court, when the parties are practically the same; and the suggestion of newly-discovered evidence will not be regarded, unless it be of so great weight as to satisfy the court that, if presented at the former hearing, it would have been sufficient to have changed the result. Accumulator Co. v. Consolidated Electric Storage Co., 53 Fed. 796; Electric Manuf'g Co. v. Edison Electric Light Co., 10 C. C. A. 106, 61 Fed. 834. But it is contended that the decree of the United States circuit court of the district of Massachusetts, while apparently final, is irregular, and of doubtful validity. With these questions this court will not deal. So long as the decree of the circuit court of the district of Massachusetts stands unrevoked and unmodified, the comity which exists between federal courts justifies this court, upon an application of this kind, in accepting its conclusions.

This view was adopted by the United States circuit court for the district of Michigan, where a preliminary injunction was granted as of course, prohibiting the manufacture of machines similar to the Marden & Rowell machines, the use of which had been enjoined in Massachusetts. It was recognized in the circuit court of appeals for the Sixth circuit, where, it is true, the injunction of the circuit court of Michigan was so far modified as to permit the defendants to continue manufacturing upon their giving bond in the sum of $25,000; but that appears to have been upon the ground that the complainants were not at that time actively engaged in the manufacture and sale of these patented machines, while the defendants had in their employ a large number of men, who would have been thrown out of work by the continuance of the injunction of the United States circuit court for the district of Michigan. Both courts recognized the rights of the complainants as determined by the United States circuit court of the district of Massachusetts, though at that time the decree was only interlocutory, and gave such relief as the nature of the case presented to them seemed to require.

It appears, from the complainant's bill filed herein, and the affidavits annexed thereto, that, since the date of the decree of the 77 F.-62

circuit court of appeals for the Sixth circuit, the condition of things has been changed. The complainants are now endeavoring to get the full benefit of their invention by the manufacture and sale of their patented machines to the trade. To permit another machine to successfully compete with them, and drive them from the market, by the use of their own patented invention, and remit them to their action for damages in perhaps a multitude of suits, is not the protection contemplated by law. Edison Electric Light Co. v. Philadelphia Trust, Safe Deposit & Ins. Co., 60 Fed. 397; Philadelphia Trust, Safe Deposit & Ins. Co. v. Edison Electric Light Co., 13 C. C. A. 40, 65 Fed. 551.

This application is resisted upon the ground of the great hardship it will inflict upon the defendants Prieth, and the confusion an injunction would cause in the conduct of their business of publishing a daily newspaper. The affidavits disclose the fact that the infringing machine has only just now been installed; that it had been in operation but a few days prior to the filing of this bill of complaint; that the old Hoe press used by the defendants, and upon which their work had theretofore been done, is still in their possession, and capable, at slight expense, of being put in condition to do their work; so that, if given a few days' time, the defendants will be able to conduct their business as cheaply and expeditiously as before the Duplex press was installed. They will not be subjected to any inconvenience which they might not have anticipated.

It is charged in the bill that defendant Prieth had notice of com plainant's claim that the machine furnished by the Duplex Company was an infringement upon their patents. This is substantially admitted by defendants when they say:

"The agents of the Campbell Printing-Press Company finally attempted to cajole us into purchasing one of their multipresses by threats of suit, and alleging that they had compelled various papers to settle on a basis of $2,500. I personally investigated the matter, and found that such was not the fact, except as to settlement of Marden & Rowell suit."

I think the complainants are entitled to an injunction, as prayed for in their bill.

VOLKMANN v. DOHNHOFF.

(Circuit Court of Appeals, Second Circuit. January 7, 1897.) PATENTS-INFRINGEMENT-VENDING MACHINES.

The Sielaff patent, No. 378,982, for a vending machine, being an apparatus for the sale and delivery of small articles, which is put in operation by the introduction of a coin of determinate size, construed, and held not infringed as to claims 1 and 3.

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

This was a suit in equity by John H. Volkmann against Hermann Dohnhoff for alleged infringement of a patent for a vending machine. The circuit court dismissed the bill, and the complainant has appealed.

Arthur v. Briesen, for appellant.

Rowland Cox and Wm. Lowell Putnam, for appellee.
Before LACOMBE and SHIPMAN, Circuit Judges.

SHIPMAN, Circuit Judge. The bill in equity in this case was based upon the alleged infringement by the defendant of claims 1 and 3 of letters patent No. 378,982, dated March 6, 1888, and issued to Max Sielaff for a vending machine, which is an apparatus for the sale and delivery of small articles, and is put into operation by the introduction into the machine of a coin of determinate size. The machine of the patent belongs to that class of machines in which the coin becomes a part of the means which deliver the package to the purchaser, and the invention was the described means by which a coin of the determined diameter was alone permitted to put in motion the mechanism which transmitted the package. In the machine of the patent, the coin of the proper and determinate size is dropped into a slit formed in one, or partly in one and partly in the other, of two movable arms, pivoted one above the other, called, respectively, the "transmitter" and the "transmitted arm." The coin, if of the right diameter, is suspended between one end of the slit and a ledge, or stationary support, at the other end; but, if it is of too small diameter, it will fall through, and be inefficacious. If it is of the proper diameter, a pull upon the transmitter pushes it against the coin, which is thus brought into contact with the transmitted arm, and in turn pushes it so that the mechanism for delivery is operated.

The two claims which are said to have been infringed are as follows:

"(1) In a mechanism for transmitting motion by means of a coin, d, of determinate size, the combination of the movable coin-grasping arms having a coinreceiving slot or slit, through the medium of a coin hold, in which slot or slit motion can be transmitted from one to the other of said arms, with the stationary ledge, c, bounding one end of said slot or slit, the arrangement being such that the coin, when dropped edgewise into the slot or slit, will be suspended in that position between one end of the slot and the stationary ledge, c, at the opposite end, substantially as and for the purposes hereinbefore set forth."

"(3) The combination, with the coin-guiding tube, k, and the mechanism for delivering a determinate supply of any ware, of the movable coin-grasping arms, having a coin-receiving slot and the stationary ledge, c, between which and the opposite end of the slot the coin is suspended in edgewise position; that one of the movable arms to which movement is transmitted through the coin being connected to, and adapted to operate, the said delivering mechanism, substantially as and for the purposes hereinbefore set forth."

In the defendant's machine, two slides, not pivoted, but sliding one above the other, and disconnected from each other, until they are locked or wedged together by a coin of the proper size, correspond to the transmitter and the transmitted arm, and are called the "actuating" and the "delivery" slide. The coin is dropped through a slit, and rests upon two stationary, downwardly beveled lngs, one on each side of the frame, and below the center of the coin, which is prevented from falling by the fact that its upper edge rests in the slit through which it was dropped, midway between the ends of the slit. When the actuating slide is pulled out, a horn which projects from its