Union Paper Bag Machine Co. v. Atlas Bag Co.

U.S. Circuit Court

Union Paper Bag Machine Co. v. Atlas Bag Co.

6 F. 398, 1881 U.S. App. LEXIS 2144

DecidedFebruary 7, 1881

StatusPublished

This text of 6 F. 398 (Union Paper Bag Machine Co. v. Atlas Bag Co.) is published on Counsel Stack Legal Research, covering United States Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Union Paper Bag Machine Co. v. Atlas Bag Co., 6 F. 398, 1881 U.S. App. LEXIS 2144 (uscirct 1881).

Pincite

Opinion

Butler, D. J.

Claims 2 and 5 of the plaintiff’s patent, are, very clearly, for equivalent devices. The blade B, and the. plate E, are intended for separate, independent use. When the former is detached and removed, as contemplated to be when not in use, the latter supplies its place, and performs its office. „ Both cannot be used at the same time. Paragraph 14 of the specifications, and the testimony of the experts on each side, as well as an examination of the plaintiff’s drawings and model, show that one of these devices is the mere equivalent of the other. The complaint, as exhibited by the testimony, and urged by counsel, is that the defendants have infringed the fifth claim. It goes no further. [399]*399Whether the introduction of this claim into the re-issue of the patent, where it is first found, was improper, need not be considered. From what has been said it is plain that whatever would constitute an infringement of this claim, would also be an infringement of the second; and that whatever would anticipate the latter, would also anticipate the former. The proofs show,, quite satisfactorily, that a device to facilitate the manufacture of paper bags, substantially identical in construction, form and manner of use, with that described by the plaintiff’s second claim, and consequently the exact equivalent of that described in the fifth, was constructed and used, more than two years prior to the application for the Howlett and Kirk patent, and nearly as long before the invention, described therein, was made.. This feature of their combination, or tool as they denominate it, was not, therefore, new. That it may have been invented by Miss Kirk, is unimportant. Granting it to have been, it follows that it was not the joint invention of the patentees. Embracing it in their patent, did not, therefore, confer upon them a right to its exclusive use, except in the particular combination therein described. It is not even clear that the invention was original with Miss Kirk; and if it was, it is not clear that the use which she permitted to be made of it, would not have forfeited the right to a patent even in her own name, at the time the patent here involved, was applied for. As this view of the case disposes of it, an examination of other questions presented by the defence, is unnecessary.

The bill must therefore be dismissed. A decree will be entered accordingly, with costs.

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Butler, D. J.

Claims 2 and 5 of the plaintiff’s patent, are, very clearly, for equivalent devices. The blade B, and the. plate E, are intended for separate, independent use. When the former is detached and removed, as contemplated to be when not in use, the latter supplies its place, and performs its office. „ Both cannot be used at the same time. Paragraph 14 of the specifications, and the testimony of the experts on each side, as well as an examination of the plaintiff’s drawings and model, show that one of these devices is the mere equivalent of the other. The complaint, as exhibited by the testimony, and urged by counsel, is that the defendants have infringed the fifth claim. It goes no further. [399]*399Whether the introduction of this claim into the re-issue of the patent, where it is first found, was improper, need not be considered. From what has been said it is plain that whatever would constitute an infringement of this claim, would also be an infringement of the second; and that whatever would anticipate the latter, would also anticipate the former. The proofs show,, quite satisfactorily, that a device to facilitate the manufacture of paper bags, substantially identical in construction, form and manner of use, with that described by the plaintiff’s second claim, and consequently the exact equivalent of that described in the fifth, was constructed and used, more than two years prior to the application for the Howlett and Kirk patent, and nearly as long before the invention, described therein, was made.. This feature of their combination, or tool as they denominate it, was not, therefore, new. That it may have been invented by Miss Kirk, is unimportant. Granting it to have been, it follows that it was not the joint invention of the patentees. Embracing it in their patent, did not, therefore, confer upon them a right to its exclusive use, except in the particular combination therein described. It is not even clear that the invention was original with Miss Kirk; and if it was, it is not clear that the use which she permitted to be made of it, would not have forfeited the right to a patent even in her own name, at the time the patent here involved, was applied for. As this view of the case disposes of it, an examination of other questions presented by the defence, is unnecessary.

The bill must therefore be dismissed. A decree will be entered accordingly, with costs.

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Bluebook (online)

6 F. 398, 1881 U.S. App. LEXIS 2144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/union-paper-bag-machine-co-v-atlas-bag-co-uscirct-1881.