Kiesele v. Haas

U.S. Circuit Court for the District of Southern New York

Kiesele v. Haas

32 F. 794, 1887 U.S. App. LEXIS 2852

CourtU.S. Circuit Court for the District of Southern New York

DecidedNovember 25, 1887

StatusPublished

This text of 32 F. 794 (Kiesele v. Haas) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kiesele v. Haas, 32 F. 794, 1887 U.S. App. LEXIS 2852 (circtsdny 1887).

Pincite

Opinion

Coxe, J.

On the fifteenth of May, 1877, letters patent No. 190,769 were granted to the complainant for a new and improved composition for casting ornamental figures consisting of paraffine, stearine, and pulverized sugar.

The defenses are non-infringement and want of novelty. The complainant proved the purchase from the defendants at their business establishment of two statuettes made in imitation of Bartholdi’s “Liberty,” it being stated at the time by the employe who made the sale that they were manufactured by the defendants. A piece of one of these statuettes was analyzed, and was found to contain the ingredients of the patent and nothing else. The defendants admit that the infringing figures “seem to be” made by them, but they assert generally that they do not use the complainant’s composition. When, however, they are asked if these figures contain the ingredients of the patent they answer that they do-not know. The denial, in substance, is this: Although the defendants do not know what the statuettes sold by them aré made of, they do know that these statuettes do not contain paraffine, stearine, and sugar. A denial so vague, illogical, and incomplete, in circumstances like the present, amounts almost to a confirmation of the proof which it is intended to overthrow.

One witness was called to prove prior use, but as there is no allegation in the answer under which the testimony is admissible, (section 4920, [795]*795Rev. St.,) the court is not at liberty to consider it. The objection was taken before the examiner, and the defendants were thus notified at 1ho earliest possible moment of the complainant’s position, and vet no motion to amend the answer was addressed to the court.

The patent granted to Henry Hirsch, March 5, 1872, does not anticipate the complainant’s patent or affect it in the remotest degree. The compound covered by the Hirsch patent consists of paraffine, bees-wax, and gypsum.

The complainant is entitled to the usual decree.

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Coxe, J.

On the fifteenth of May, 1877, letters patent No. 190,769 were granted to the complainant for a new and improved composition for casting ornamental figures consisting of paraffine, stearine, and pulverized sugar.

The defenses are non-infringement and want of novelty. The complainant proved the purchase from the defendants at their business establishment of two statuettes made in imitation of Bartholdi’s “Liberty,” it being stated at the time by the employe who made the sale that they were manufactured by the defendants. A piece of one of these statuettes was analyzed, and was found to contain the ingredients of the patent and nothing else. The defendants admit that the infringing figures “seem to be” made by them, but they assert generally that they do not use the complainant’s composition. When, however, they are asked if these figures contain the ingredients of the patent they answer that they do-not know. The denial, in substance, is this: Although the defendants do not know what the statuettes sold by them aré made of, they do know that these statuettes do not contain paraffine, stearine, and sugar. A denial so vague, illogical, and incomplete, in circumstances like the present, amounts almost to a confirmation of the proof which it is intended to overthrow.

One witness was called to prove prior use, but as there is no allegation in the answer under which the testimony is admissible, (section 4920, [795]*795Rev. St.,) the court is not at liberty to consider it. The objection was taken before the examiner, and the defendants were thus notified at 1ho earliest possible moment of the complainant’s position, and vet no motion to amend the answer was addressed to the court.

The patent granted to Henry Hirsch, March 5, 1872, does not anticipate the complainant’s patent or affect it in the remotest degree. The compound covered by the Hirsch patent consists of paraffine, bees-wax, and gypsum.

The complainant is entitled to the usual decree.

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Bluebook (online)

32 F. 794, 1887 U.S. App. LEXIS 2852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kiesele-v-haas-circtsdny-1887.