the accused, and we can discover no ground on which the ruling receiving it can be upheld. It was written and sent after the offenses charged in the indictment had been committed. The corre spondence between Moody and the accused while the transactions evidencing the scheme to defraud were taking place was competent, because the letters were verbal acts constituting a part of the res gestæ. It was also competent because the letters from the accused were admissions of facts contained in them, and a response to the letters of Moody, and the latter were necessary to a correct understanding of the scope and effect of the admissions. It is urged that the last Moody letter was competent because it was a reply to a letter from the accused soliciting further remittances from Moody. The contention is fallacious unless it can be maintained as a correet legal proposition that a request admits in advance the statements made in response. This would be a very dangerous doctrine, and finds no color of support in the law of evidence. If only that part of the reply refusing to make further remittances had been read, no harm would have been done; but, as has been stated, the letter was, in substance, a narrative of past events, of which there was no other evidence, and an argument to demonstrate that the accused had been guilty of a scheme to defraud Moody. It is also urged that the letter was admissible as a tacit admission by the accused of the truth of its statements, it having been proved that the accused did not reply to it. Admissions, of course, may be inferred from silence as well as from express statements, but it has been uniformly held by the courts that the failure to reply to a letter is not to be treated in a criminal or in a civil action as an admission of the contents of the letter. In Com. v. Eastman, 1 Cush. 215, the court said: "The letters, however, if properly identified, would not, of themselves, authorize any inference against the defendants. They were only the acts and declarations of others; and, unless adopted or sanctioned by the defendants by some reply or statement, or by some act done in pursuance to their suggestion, they ought not to prejudice the defendants. Letters addressed to an individual, and received by him, are not to have the same effect as verbal communications. Silence in the latter case may authorize the inference of an assent to the statement made, but not equally so in the case of a letter received, but never answered or acted upon. So far as these letters might be shown by other proof to have been acted upon or sanctioned by the defendants, so far they would be competent evidence."

In People v. Green, 1 Parker, Cr. R. 17, the court said:

"The maxim, 'Qui tacet consentire videtur,' has also been applied between the parties to certain mercantile dealings; as where an account current was sent to the party by letter, and no objection made to it within a given time, established by convenience or by commercial usage. But it could not, in principle, be applicable to facts stated in a letter which the party was not bound or interested to answer. It would be placing a man entirely at the mercy of another if he was bound by what others chose to assert in addressing letters to him. In no case could his silence be considered an admission of such facts."

It could not be applicable to any case where the letter only tends to support a charge of guilt, and where it has been followed by no action, and no response on the part of the person receiving the let ter. The same principle has been repeatedly applied in civil actions.

Fairlie v. Denton, 3 Car. & P. 103; Gaskill v. Skene, 14 Q. B. 664; Learned v. Tillotson, 97 N. Y. 1; Bank v. Delafield, 126 N. Y. 418, 27 N. E. 797; Gray v. Ice Cream Co., 162 N. Y. 397, 56 N. E. 903, 49 L. R. A. 580.

We conclude that the assignment of error based upon the reception of the Moody letter has been well taken, and for that reason the judgment must be reversed.

(106 Fed. 914.)

POTTER DRUG & CHEMICAL CORP. v. PASFIELD SOAP CO.
(Circuit Court of Appeals, Second Circuit. February 7, 1901.)

TRADE-MARKS-INJUNCTION.

No. 82.

Complainant was proprietor of the word "Cuticura" as a trade-mark for a toilet soap. Defendant placed on the market a soap which it called "Cuticle." There was nothing in the box, wrapper, or general get-up of the package which tended in any way to induce the purchaser of the latter soap to believe that he was purchasing the former. Held insufficient to authorize injunction at suit of complainant.1

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

This cause comes here upon appeal from a decree of the circuit court, Eastern district of New York, dismissing a bill in equity to restrain defendant from selling soap which, it is alleged, wrongfully simulated complainant's soap.

J. E. Maynadier, for appellant.
Noah Tebbetts, for appellee.

Before LACOMBE and SHIPMAN, Circuit Judges.

PER CURIAM. The complainant manufactures a soap which it calls "Cuticura Soap." The same has been advertised at considerable expense, and has become somewhat widely and favorably known. Defendant sells a soap which it calls "Cuticle Soap." The opinion of the circuit court sets forth in minute detail the manner in which the soaps of the respective parties are prepared for the market,— how they are put up, wrapped, lettered, etc. It is unnecessary to repeat this description. The opinion may be found in 102 Fed. 490. We have little doubt that in selecting a name which began with the first five letters of that applied to complainant's soap, and which referred, as that did, to the skin, the defendant had some expectation that he might succeed in effecting some sales, at least, on the strength of complainant's advertising; and if we were able to find anything in box, wrapper, lettering, or general get-up of the package which might tend in any way to produce confusion in the mind of the purchaser, we should not hestitate to grant the relief prayed for. But

1Unfair competition in trade, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.

this element of attempted deceptive resemblance, usually prominent, and, when prominent, controlling (Sterling Remedy Co. v. Eureka Chemical & Mfg. Co., 25 C. C. A. 314, 80 Fed. 105: Proctor & Gamble Co. v. Globe Refining Co., 34 C. C. A. 405, 92 Fed. 357), is wholly wanting, and its absence is not supplemented by any proof that the use of the first five letters of complainant's trade-word is in itself sufficient to mislead. Under these circumstances, we concur in the conclusion of the circuit court. Decree affirmed, with costs.

(106 Fed. 918.)

BRAMMER v. SCHROEDER.

(Circuit Court of Appeals, Eighth Circuit. February 25, 1901.)

No. 1,420.

1. PRIMARY AND SECONDARY PATENTS-APPLICATION OF DOCTRINE OF MECHANICAL EQUIVALENTS.

One who invents and secures a patent for a machine or combination which first performs a useful function is protected thereby against all machines or combinations which perform the same function by equivalent mechanical devices; but one who merely makes and secures a patent for a slight improvement on an old device or combination, which performs the same function before as after the improvement, is protected against those only who use the very device or improvement he describes and claims, or colorable evasions of it.

2. MECHANICAL EQUIVALENTS-INTERPRETATION.

The term "mechanical equivalent," when applied to the interpretation of a pioneer patent. has a broad and generous signification; but when it is applied to a slight and almost immaterial improvement in the progress of an art it has a very narrow and limited meaning, while in its application to all that great mass of inventions which falls between the two extremes its significance is proportioned to the character of the advance or invention under consideration, and is so interpreted by the courts as to protect the inventor against piracy and the public against unauthorized monopoly. 3. COMBINATION PATENTS-LAW OF MECHANICAL EQUIVALENTS HAS SAME APPLICATION AS TO OTHER PATENTS.

The doctrine of mechanical equivalents is governed by the same rules and has the same application in a case in which the infringement of a patent for a combination is in question as in cases where the issues are over the infringement of patents for machines or compositions of matter. 4. PATENT FOR COMBINATION-INFRINGEMENT NOT AVOIDED BY USE OF DIFFERENT MEANS OF OPERATION.

One who appropriates a new and useful patented combination cannot escape infringement by the use of mechanical devices to unite or operate the elements of the combination which differ from those which are pointed out for the purpose, but which are not claimed in the patent.

5. DRAWINGS PART OF SPECIFICATION OF PATENT.

Drawings are a part of the specification of a patent, and for the purpose of ascertaining the sufficiency of the description of the invention must be read with it.

6. CLAIM OF PAtent not INVALID FOR FAILURE TO INCLUDE OBVIOUS OPERATIVE DEVICES.

A claim for a machine or for a combination of mechanical devices is not invalid or insufficient because it fails to include mechanical devices

for uniting or operating the machine or combination which readily suggest themselves to a mechanic skilled in the art, or which are pointed out in the specification and drawings as means for the purpose.

7. FIRST CLAIM OF LETTERS PATENT No. 535,465 SUSTAINED.

The first claim of letters patent No. 535,465, to John Schroeder, for improvements in means for operating washing machines, is sustained.

8. PATENT No. 535,465 INFRINGED BY COMBINATION SECURED BY PATENT No. 606,044.

A combination of mechanical devices described in and claimed by letters patent No. 606,044, to Henry F. Brammer, infringes the first claim of letters patent No. 535,465.

(Syllabus by the Court.)

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

Paul Bakewell and W. J. Roberts (L. G. Susemihl and F. R. Cornwall, on the brief), for appellant.

Frank D. Thomason, for appellee.

Before CALDWELL and SANBORN, Circuit Judges, and ADAMS, District Judge.

SANBORN, Circuit Judge. This is an appeal from a decree adjudging the appellant, Henry F. Brammer, to be guilty of an infringement of the first claim of letters patent No. 535,465, for improvements in the means for operating washing machines, issued to the appellee, John Schroeder, on March 12, 1895, upon an application filed by him on October 23, 1894. The machine by which the alleged infringement was effected was constructed in accordance with the description contained in letters patent No. 606,044, issued to Henry F. Brammer on June 21, 1898. The subject of these inventions was the translation of the continuous rotary motion of a horizontal shaft in the same direction into the reciprocating rotary motion of a vertical shaft in opposite directions. The problem which the inventors were seeking to solve was to provide the simplest and most efficient means to accomplish this translation. Each used a combination of mechanical devices to solve this question, and the serious issue in this case is whether or not the combination of the appellant was an infringement upon that claimed and secured by the grant to the appellee. Of course, Schroeder was not the first to conceive the idea, or to provide some means of translating continuous rotary into reciprocating rotary motion. The problem is as old as mechanics, and doubtless its solution is nearly as old as the question. Many devices had been conceived and many means had been provided to accomplish the desired end before either of these parties entered the field, so that neither can be said to be a pioneer in this department in mechanics in the broad and general sense of that term. The appellee claims, however, that he has invented and secured by his patent a new and useful combination of mechanical elements to accomplish the desideratum which they were both seeking, and that the appellant has departed from the old combinations and devices, which were open to him, and has appró

priated and used the combination of elements claimed in and secured to him in his earlier patent, or a combination of some of these elements with obvious mechanical equivalents of others. The appellant insists that he has not used all the constituent elements of Schroeder's patent, and that the doctrine of mechanical equivalents has no application, or a very limited application, to a case of an infringement of a patent for a combination, and that under this rule he is not an infringer.

It is not true, however, that the doctrine of mechanical equivalents is inapplicable to an infringement of a combination. A novel combination of old elements which accomplishes a new and useful result, or one which accomplishes an old result in a new and better way, is as much entitled to a patent under the statutes of the United States as an invention of a machine or a composition of matter, and a patent for it is protected by every rule and presumption of law applicable to any infringement of this character. It may be, and undoubtedly is, true that the doctrine of mechanical equivalents has a very limited application to a large majority of patents for combinations; but that is not because they are patents for combinations, but because they are not primary inventions. The general rule of the patent law is that one who invents and secures a patent for a machine or combination which first performs a useful function is thereby protected against all machines and combinations which perform the same function by equivalent mechanical devices; but one who merely makes and secures a patent for a slight improvement on an old device or combination, which performs the same function before as after the improvement, is protected against those only who use the very device or improvement he describes and claims, or mere colorable evasions of it. Adams Electric Ry. Co. v. Lindell Ry. Co., 77 Fed. 432, 440, 23 C. C. A. 223, 231, 40 U. S. App. 482, 498; Stirrat v. Manufacturing Co., 61 Fed. 980, 981, 10 C. C. A. 216, 217, 27 U. S. App. 13, 42; McCormick v. Talcott, 20 How. 402, 405, 15 L. Ed. 930; Railway Co. v. Sayles, 97 U. S. 554, 556, 24 L. Ed. 1053. In other words, the term "mechanical equivalent," when applied to the interpretation of a pioneer patent, has a broad and generous signification; but where it is applied to a slight and almost immaterial improvement in the progress of an art it has a very narrow and limited meaning, while in its application to all that great mass of inventions which falls between the two extremes its significance is proportioned to the character of the advance or invention under consideration, and is so interpreted by the courts. as to protect the inventor against piracy and the public against unauthorized monopoly. This general rule of law, like every other principle of jurisprudence, applies equally to all patents, whether for combinations, machines, or compositions of matter. In the very nature of things, patents for combinations are generally issued when the art to which they relate is old, when other means have been used to accomplish the desired result, and when the state of the art is such that the field for invention is narrow. The very fact that they are combinations of old elements indicates that they usually come into existence when the art they illustrate is not new. The result is that