such a case of wrongdoing as calls for the court's interference by injunction, though it may probably exercise such power in an extreme case. On Petition for an Order Restraining Complainant, and for Other Relief. Edward S. Beach, for complainant. William A. Macleod, for petitioners. Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge. ALDRICH, District Judge. Upon this petition for relief against what is claimed to be an unwarrantable use of the opinion of this court, after decision and before mandate was handed down, we need not examine or discuss the question of jurisdiction. Neither need we discuss the question of the power, nor the extent of the power, of this court in respect to punishment for contempt in misuse or abuse of its process. Nor is the power of the court over its own process, as between the parties, necessarily controlled by the rule of noninterference with press publications as to disputed rights and claims of different parties as to the scope of its decisions. It is probably true that, in a case of honest disagreement or misunderstanding as to the true import of a decision, or in an extreme case of abuse or misuse of process for the purpose of impairing or destroying rights sought to be established by the court through its decision, the court may proceed summarily in reference thereto. Such power, however, would be exercised with reluctance, and ordinarily only in an extreme or clear case. The circular letter complained of sets out more than the court decided, but an examination of the opinion d closes no ambiguity or uncertainty as to what was decided; and, on the whole, we do not think the facts set out in the petition constitute a case of such wrongdoing as calls for our interference. At the most, it was an extravagant claim by a party as to the scope of the decision, based upon his interpretation of the opinion which this court had handed down. Petition denied. (113 Fed. 627.) LEPPER et al. v. RANDALL. (Circuit Court of Appeals, Third Circuit. February 3, 1902.) No. 12, Sept. Term, 1901. 1. PATENTS-INFRINGEMENT-DOCTRINE OF EQUIVALENTS. A patentee is not to be denied protection commensurate with the scope of his actual and distinctly described invention by wholly excluding him from the benefit of the doctrine of equivalents, even as against one who has made only such changes as are palpably colorable and of such character as to show that they were studied evasions of the particular devices described in the patent. & SAME-HAM BOILING WRAPPERS. The Merrill & Lepper patent, No. 624,839, for a wrapper for hams, claim 3, which claims a wrapper "and lacing devices on the back thereof," is infringed by a wrapper which is in all respects identical with the patented article, except that the fastenings are straps and buckles, instead of a lacing cord engaged with hooks, studs, or eyelets. Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania. E. Hayward Fairbanks, for appellants. Before ACHESON, DALLAS, and GRAY, Circuit Judges. DALLAS, Circuit Judge. This is an appeal from a decree dismissing a bill which charges infringement of letters patent No. 624,839, dated May 9, 1899, for "wrappers for hams." 105 Fed. 975. The specification states that: The "invention consists of a wrapper for boiling a ham therein, more particularly a boneless ham, the same being formed of a piece of canvas or other suitable fabric adapted to envelop a ham, and means for tightly compressing the wrapper thereon and preventing opening thereof, whereby the ham is guarded against disintegration and its juices are retained within the wrapper, thus producing superior results in the flavor, compactness, and appearance of the ham." The drawings accompanying the specification exhibit a mat or piece of fabric upon which there are four rows of hooks, arranged at right angles, so as to form a quadrilateral figure within the ends of the wrapper. For engagement with these hooks, a cord is provided, and together they constitute a lacing device, by means whereof the ham is tightly and closely secured within the mat. The only claim in question is as follows: "(3) A wrapper of the character named, formed of a mat and lacing devices on the back thereof, between the corners and center thereof, in series at an angle to each other and to the sides of the mat." As was said by the court below: "This invention met with a good deal of success, between 10,000 and 15,000 wrappers being sold during one year. Not long after its introduction to the public, the defendant began to make and sell a wrapper which is in all respects identical with the patented article, except that the fastenings are straps and buckles, instead of a lacing cord, engaged with hooks, studs, or eyelets." 51 C.C.A.-22 The learned judge who decided the case below had no doubt "that the defendant's straps and buckles are an equivalent of the complainants' cords and hooks," and in this we agree with him; but he held that the complainants were not entitled to invoke the doctrine of equivalency, and this ruling we think was erroneous. By the changes in phraseology which were made pending the application, nothing can fairly be said to have been surrendered or disallowed which the third claim as finally approved plainly included. That claim, as broadly expressed, is for "lacing devices"; and it is not to be implied that either the patent office on the one side or the applicant on the other contemplated any limitation of it which would admit of its evasion by means so palpably colorable as the substitution of straps for cords and buckles for hooks. We cannot impute to either of them an intention to render it practically valueless and its inclusion in the patent a vain thing. Hillborn v. Manufacturing Co., 16 C. C. A. 569, 69 Fed. 958, 28 U. S. App. 525; Société Anonyme Usine J. Cleret v. Rehfuss (C. C.) 75 Fed. 657, 661. It may be conceded that the contrivance claimed, though unquestionably new and useful, was comparatively trivial in character, and it is not necessary to decide whether or not its conception was a primary one; for in no case is a patentee to be denied protection commensurate with the scope of his actual and distinctly described and claimed invention by wholly excluding him from the benefit of the doctrine of equivalents. That doctrine, therefore, should have been applied in this case; for it is plainly obvious that the departures made by the defendant from the patent in suit are merely formal, "and of such character as to suggest that they are studied evasions of those described in the claim in issue.' Mfg. Co. v. Detroit Time-Register Co., 36 C. C. A. 375, 391, 94 Fed. 524; Boston & R. Electric St. Ry. Co. v. Bemis Car-Box Co., 25 C. C. A. 420, 424, 80 Fed. 287. Bundy The decree of the circuit court is reversed, and the cause will be remanded to that court, with direction to enter a decree in the usual form for the complainants. (113 Fed. 629.) AMERICAN COAT PAD CO. OF BALTIMORE CITY v. PHOENIX PAD CO. (Circuit Court of Appeals, Fourth Circuit. February 4, 1902.) No. 422. 1. PATENTS-SUIT FOR INFRingement-PRELIMINARY INJUNCTION. Where a patent sued on is unadjudicated, and its validity and infringement are denied by defendant, who sets up valid defenses, there should be strong proof of acquiescence to warrant the granting of a preliminary injunction. 2. SAME-UNADJUDICATED PATENT-ESTOPPEL TO CONTEST VALIDITY. A corporation, owner of a patent, brought suit against another corporation for infringement. Defendant denied validity, and pleaded prior use and anticipation, but before trial purchased the stock of complainant, and took an assignment of the patent. A person who had owned one share of stock in complainant corporation, and who was at the time of the institution of the suit employed by it as superintendent, after the sale of the stock obtained a patent for a similar article, and a new corporation was formed to manufacture thereunder, in which he became a stockholder and officer. The assignee of the earlier patent commenced a suit against him and the new corporation for infringement. Held that, the patent never having been adjudicated, the former suit afforded no ground warranting the issuance of a preliminary injunction against either defendant, who pleaded substantially the same defenses as were set up therein, since such suit did not establish a public acquiescence in the patent, nor create an estoppel against the individual defendant, who was not a party to the record, and whose position in the two suits, even if considered a party to the former suit in fact, was no more inconsistent than that of complainant. & SAME-SUIT AGAINST CORPORATION-ESTOPPEL OF STOCKHOLDER. In a suit for infringement of a patent against a corporation and a person who is a stockholder and officer therein, the fact that the latter, as an individual, may be precluded from denying the validity of the patent, cannot affect the rights of his codefendant. 4 SAME-GROUNDS FOR INJUNCTION-UNFAIR COMPETITION. The fact that one employed by the owner of a patent in manufacturing the patented article subsequently obtains a patent for a similar article which he claims to be an improvement, and engages in the manufacture and sale of such article under his own patent, affords no basis for an injunction on the ground of unfair competition. Appeal from the Circuit Court of the United States for the District of Maryland. Richard S. Culbreth (Frederick M. Feldner, on the brief), for appellants. Arthur Steuart, for appellee. Before SIMONTON, Circuit Judge, and PURNELL and WADDILL, District Judges. PURNELL, District Judge. The appeal is from a decree of the circuit court of Maryland in a patent case, granting a preliminary injunction restraining appellants, defendants below, until the further order of the court, from infringing the patent rights to which the appellee, plaintiff below, claims to be entitled under letters patent No. 359,441, issued to Edward Goldman, dated March 13, 1887. The title of appellee to the letters patent is set out in the verified bill, supported by the affidavits of Gustav Goldman, president of the appellee company, and others. Assuming title to the letters patent to be as stated, it is as follows: From Edward Goldman, patentee by assignment September 29, 1890, to the Eureka Coat Pad Company, and by assignment from the Eureka Coat Pad Company March 16, 1901, to the Phoenix Pad Company, appellee. The assignments are not controverted or questioned. This title is not denied. An answer under oath was waived in the usual form, but defendants below, appellants here, verified the answer, and filed therewith affidavits and exhibits consisting of certified copies of letters patent referred to in the answer. Several issues of fact are raised by the pleadings, a consideration of which at this time would tend to embarrass the trial court in the consideration of the case on the final hearing, and this court, should the case be again brought here by appeal. Loew Filter Co. v. German-American Filter Co., 47 C. C. A. 94, 107 Fed. 950. The cause is not in a condition to be heard as to these matters now, and it must be understood what is said is upon the record as now before the court, and not as to the merits as they may be hereafter presented. It is stated in the brief of counsel for appellee and in the opinion of the court, which it is said the trial judge delivered before leaving the bench, that the validity of the plaintiff's patent and infringement by defendants are not denied. This statement must refer to something said on the hearing, of which this court knows nothing. An examination of the pleadings discloses the fact that defendant corporation, in the first allegation of its answer, sets out in full the answer of the Phoenix Coat Pad Company (to which it alleges the Phoenix Pad Company is to all intents and purposes successor) in 1889 to a bill filed by the Eureka Pad Company, denying the Goldman patent, alleging two prior patents, No. 41,073, January 5, 1864, to Moses A. Thompson, and No. 236,267, January 4, 1881, to Daniel T. Smith, and that Edward Goldman was not the inventor of the coat pad described, but the same was used many years before by parties in Cincinnati, Baltimore, and New York, naming them. The paragraph is adopted by defendants as part of their answer. Another suit (The Eureka Coat Pad Company v. H. M. Marcus & Bro.; 1890) is referred to as involving the Goldman letters patent, and it is conceded that neither of these cases came to a final hearing. There has been no adjudication as to the validity of said letters patent. The validity of the Goldman letters patent is therefore denied in the pleadings. The infringement of plaintiff's letters patent is set out in paragraph 8 of the bill, and in the eighth paragraph of the defendants' answer are these words: "The defendants deny the allegations of paragraph 8 of the bill." In the following two paragraphs of the answer defendants admit they have manufactured coat pads, but explain at some length this was done under letters patent No. 673,331, issued to Louis Bouchat, January 10, 1901, and setting out the difference between the coat pad thus manufactured and the coat pad for which the Goldman letters patent provide, and an improvement claimed in such coat pads so manufactured over the Goldman patent. The validity and infringement are thus denied, and clear-cut issues raised. An examination of the record discloses several defenses set up,-no patentable subject |