8TANDA,RD FOLDING BED CO. t1. KEELER.
693
to the Richards patent in the other suit. Indeed, I may say that the Corliss air dash-pot, and the exhibit Colt's armory door-check, now for the first time introduced as evidence, have raised a doubt in my mind as to the soundness of the construction put upon the second claim of the Richards patent in the Elliott suit. From a working exhibit introduced by the defendants it would seem to make little or no difference so far as checking the motion of the door before slamming, whether the adjustable. screw is placed at the side or bottom of the cylinder, provided the piston does not fit too closely the bore of the cylinder. In other words, I am not clear in my own mind that there is not found in the Corliss dash-pot the substance of what is described in the second claim of the Richards patent. Further, in the exhibit Colt's armory door-check it is admitted that the device consists of a cylinder, a pistou, equivalent, an adjustable vent, a weight, and a valve, which permits the air to enter the cylinder when the weight is raised by the opening of the door.. If we substitute a spring for the weight, the combination of devices here shown comes close' to those found in the second claim of Richards' patent. For the purpose of deciding this motion I am not called upon to critically compare the Richards device with the Corliss dash-pot or the Colt door-check. It is sufficient for me to say at this time that, after hearing the arguments of counsel, and upon a careful examination of the evidence and exhibits,a doubt is cast upon my mind whether, in view of the prior state of the art, the defendants infringe the second claim of the Richards patent. It is my duty, therefore, to deny this motion, and to postpone the determination of the questions now raised to final hearing. Motion denied.
STANDARD FOLDING BED
Co. v.
KEEf.ER et
ale
(Oircuit Oourt, D · .MassachusettlJ. February 20,1889.) PATENTS FOR INVENTIONS-INFRINGEMENT-TERRITORIAI, RIGHTB OF ABSIGNll:EB.
One who purchases a patented article from the owner of the patent-right for a certain territory, has no right to sell the same in the course of trade.in ter·' ritory for which another owns the exclusive territorial right.
In Equity. On motion for preliminary injunction. Bill by the Standard Folding Bed Company againstC. P. Keeler and -others for the infringement of a patent. E. Y. Rice, for complainant. J. H. Taylor and Browne &< Browne, for defendants. COLT, J. Under the agreed statement of facts it is admitted that the .complainant is 'tlie oWller of the exclusive right under letters' patent ,granted to Lyman W. Welch, numbered 311,623 and 364,875, for improvements in folding beds, for certain territory, including the states of :New York and Massachusetts; that the Welch Folding Bed Company, of
..
FEDEI.UL REPORTER ,\'01.87. Grand Rapids, Mich., own the said patents for certain territory other than Massachusetts and New York, including the state of Michigan, and manufacture and sell the folding beds made under the patents in Michigan. It is further admitted that the defendants purchased a car-load of' said beds from the Welch Folding Bed Company at Grand Rapids, Mich., for the purpose of selling them in Massachusetts, and that they after'wards sold, and are now engaged in selling, the said beds in Boston. The sole question presented by this motion is whether the purchaser of a patented article sold by the assignee of a patent-right fora certain defined territory, can, in the course of trade, sell the article in another territory, for; which another person has the exclusive territorial right. This exact question has not been as yet determined by the supreme court. In view, however, of the decision in A.darns v. Burke, 17 Wall. 453, and of the decisions of the circuit courts since that time, I think it may be fairly said that the right to sell is not conferred upon such purchaser under the patent laws, and that therefore this motion for an injunction should be granted. 'fhe supreme court, in Adams v. Burke, expressly limit the case to the right of the purchaser to use, and they thereby restrict the opinion of Judge SHEPLEY in the court below (1 Holmes, 40) to that extent. "Whatever, therefore." says Mr. Justice MII,LER, "muy be the rule, when patentees subdivide territorially their patents, as to the exclusive right to make and to sell within a limited territory, we that in the class of machines or implements we have described, when they are once lawfully made and sold, there is no restriction on their use to be implied· for the benefit of the patentee or his assignees or licensees." As thus restricted to the use, the supreme court were divided in opinion, , Justices BRADLEY, SWAYNE, and STRmm dissenting. Mr. Justice BRADLEY, in his dissenting opinion, takes the position that the patent act gives to the patentee a monopoly of use as well as of manufaeture throughout the United States, and that it authorizes not only an assignment of the whole patent, or any undivided part thereof. but to grant the exclusive right under any patent to make, use, and to grant to others to make and use the thing patented within any specified portion of the and that the only consistent construction to be given to the whole act is to limit all the privileges {Jonferred by it to the district marked out. The precise question now raised was before the circuit court in Hatch v. Adams, 22 Fed. Rep. 434, and Judge McKENNAN there held that the purchaser qad no right to sell the article in the course of trade outside 'ofthe desigriafedlimits covere'd by the grant of his vendor. This casewasfollowed by Judge WHEELER in Hatch v. Hall, rd. 438. See, also, the sElme Cllse in 30 Fed. Rep. 613. I agree with the conchlsioI'ls of JUdge MCKE;NNAN in Hatch v. Adams upon: the' precise point' now raised as to the purchasright to Both in the light of the more recent cases, and as a question of legal construction' tinder the patent law, I think thisIUotion should be granted. Motion grlllited.· .
INDURATED FIBRJfco. 'II. AMOaKEAG INDURATED FIBRE WARE
co.
695
INDURATED FIBRE CO. 'II. AMOSKEAG INDURATED FIBRE WARE
Co.
(Oircuit Oourt, D. NIJU'JHampBMre. January 21, 1889.) TRADE-:MARKs-"INDURATED FmRE."
The words, "indurated fibre, "as applied to wares made of wood'pulp, which has been condensed and subjected to baths in linseed oil and resin and baked. designate wood fibre which has been subjected to a hardening process, and refer to ingredients, quality, and characteristics, and areuot so arbitrary and fanciful as to authorize a preliminary in;unction in an action to restrain their use as an infringement ofa trade-mark. '.
In, Equity. On motion for preliminary injunction. Wilbur ,F:. Lunt, for complajnant. Livermore &: Fish,. for defendant.
CoLT, J. This is a motion'for a preliminary injunction. The princip!l.1 issue raise!l.i" whether the words "indurated fibre" are the proper aubject of a trade-mark. The plaintiff corporation is called the "Indurated Fibre Company," and is located in Portland, Me., and the defendantcorporation , is. called the" 4mQskeag Indurated Fibre Ware Company, and is located in Manchester, N.H" Upon the papers before me, itmay be said, !think. ,that theplaiutiffis the owner :of the words in question, provided they are the subject of a valid trade-mark, and also that the defendant stamps its wares with the same words, and further, that the wares made by the two companies are generally similar in composition and appearance. To grant a motion of this character I must be clearly satisfied of the plaintiff's legal rights. If I have serious doubt upon the question of the right of the plaintiff to a trade-mark in the words claimed, this motion should be denied, anel the issues now raised should be left for determination upon final hearing. Upon consideration of the affidavits and the authorities referred.toby counsel, I have a grave doubt whether these words can constitute a valid trade-mark. It seems to me that they do not sufficiently point either by themselves or by association, to the origin, manufacture or ownershfp of the article produced, but that they rather indicate the qualitr, class, grade, or style of such article; or, to express the distinction in another form, that they are not arbitrary or fanciful words, but are descriptive rather of the quality. ingredients, or characteristics of the In<;lurated fibre ware is made of wood'p.ulp.Fromthe description given in the affidavits it appears that this process consists, in a general way, of first forcing the water out of the Plllp and condllnsing it, then putting the article in a hot bath of linseed 1 A name alone is not a trade-mark when it is understood to signify, not the particular manufacture of a certain proprietorl...but the kind or description of thingwbich is ,1XI3nufacLured.lIostetter v. }1'nes, 17 ·.l"ed. Rep. 620; Battery Co. v. Electric CO' I 23 'Ii'ed. Rep; 276. Anything descriptive of the properties, l!tyle, or quality of an merely, is open to aU. Sewing-Machine Co. v. The Gibbens ,Frame, 17 F!ld. Rep. 623. The wordf "compressed yeast" indicate the chara<,'1ier and, composition of an article, ,and,are not the' .u.bject of a trade.mln'k. ',Fl.eischmann v. Newman, 2 N.Y; Supp. 608. .In gellenl, as to .whall wor,ds'wil! be protected as a trade-mark, see Manufacturing Co. v. Stone Co., 35 Fed. Rep. 896, and note; People v. Fisher,3 N. Y.Supp.786,