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John H. Clarke, for plaintiff in error.
George F. Arrel, for defendant in error.
Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

PER CURIAM. The question as to whether there was evidence to go to the jury upon the question of the contributory negligence of the deceased is a close one, perhaps somewhat closer than that before us upon the former writ of error, 142 Fed. 682. But the case has now been here four times, sometimes upon a writ of error by one side, and sometimes upon one sued out by the other. There must be an end of litigation. There is no such substantial difference between the former transcript upon this point and that now before us as to justify a reversal because the trial court submitted the question to the jury. The Ohio fellow servant act of April 2, 1890 (87 Ohio Laws, p. 150), is not void for repugnancy to the fourteenth amendment to the Constitution of the United States, and, as we have before held, was a valid law under the Constitution of Ohio. None of the errors assigned are well taken.

Judgment affirmed.

ÆOLIAN CO. v. HARRY H. JUELG CO.

(Circuit Court of Appeals, Second Circuit. May 3, 1907.) PATENTS-CONTRIBUTORY INFRINGEMENT-PRELIMINARY INJUNCTION.

A preliminary injunction to restrain contributory infringement of patents covering a piano player by the sale to purchasers of such players of music rolls to be used therewith, in violation of the license contracts under which the instruments were sold by complainant, held properly granted, although the rolls made and sold by defendant were also adapted to be used with other instruments, where the injunction was carefully limited by its terms so as to prohibit only sales of rolls "intended to be used” in players covered by the patents in suit and sold subject to such restrictions.

[Ed. Note.-Contributory infringement of patents, see note to Edison Electric Co. v. Peninsular Light, Power & Heat Co., 43 C. C. A. 485.] Appeal from the Circuit Court of the United States for the Southern District of New York.

This cause comes here on appeal from an order for preliminary injunction, upon bill and affidavits submitted by complainant and opposing affidavits submitted by defendant.

For opinion below see 145 Fed. 939.
Charles Neave, for appellant.
Livingston Gifford and Gifford & Bull, for appellee.
Before WALLACE, LACOMBE, and COXE, Circuit Judges.

PER CURIAM. Complainant for several years has, under certain patents which it owns, been manufacturing and selling self-playing pianos—it calls them Pianolas—to be operated with perforated paper music rolls; it also sells such rolls. The complaint avers that since March 31, 1905, it has sold its instruments only upon the conditions expressed in a certain notice which it avers has been affixed to all the pianolas so sold. The notice reads as follows:

"This Pianola, Number - is manufactured under patents owned or controlled by The Æolian Company, and is sold by us and licensed to be used under such patents and under our guarantee, only with attachments, improvements, and music-rolls especially designed and manufactured by us for use therewith. It must not be used with spurious imitations of any of our attachments, or with rolls not of our manufacture, otherwise the guarantee and license terminate. We guarantee the instrument to be of our standard workmanship and material and we will repair or replace any part found de fective in material or workmanship during the period of one year from the date of sale by us.

The Æolian Company." Defendant manufactures and sells perforated paper music rolls, adapted for insertion in complainant's instruments, and also adapted for insertion in several other varieties of self-playing pianos which are on the market and not covered by complainant's patent. The injunction restrains defendant from “directly or indirectly vending to others to be used music rolls adapted and intended to be used in mechanical musical instruments, or mechanical players for musical instruments, purchased from the complainant herein under patent license to be used only with music rolls made and sold by said complainant, or manufacturing or using the said rolls for such purpose.”

It will be observed that the injunction is carefully restricted; it does not prohibit defendant from selling generally, nor from selling rolls to be used with other instruments than complainant's, nor from sales to such owners of complainant's instruments as bought the same without restrictions. The evidence warrants a finding that in at least one instance defendants sold its rolls to be used with one of complainant's Pianolas after it had been informed by the purchaser that his instrument contained the notice in question and that complainant was insisting that under its terms he was not permitted to purchase rolls elsewhere than from the Æolian Company. Indeed, the evidence fairly warrants the conclusion that, unless restrained by injunction, defendants intend to press the sale of their rolls among purchasers of the Pianolas who have bought with full knowledge of the restrictions and have accepted the same. Upon this state of facts the injunction was properly issued.

Order affirmed.

BRUNSWICK-BALKE-COLLENDER CO. V. H. WAGNER & ADLER CO. (Circuit Court, s. D. New York. May 3, 1907.)

No. 8,793. PATENTS-INFRINGEMENT-POOL TABLES.

The Cunningham patents, Nos. 553,185 and 556,532, the former relating to the construction of a pocket for pool tables having return conduits for balls, and the latter to the conduit, if conceded invention, held not infringed. No. 559,790 to the same inventor, also relating to pockets, is void for lack of invention.

In Equity. On final hearing.

Philipp, Sawyer, Rice & Kennedy (James Q. Rice, of counsel), for complainant.

Dickerson, Brown, Raegener & Binney (S. L. Moody, of counsel), for defendant.

PLATT, District Judge. This is a bill in equity, based upon three patents, mentioned later; the improvements therein claimed being capable of conjoint use upon a single pool table, and the usual remedies are demanded. The only claim of patent in suit 553,185 is:

“In a pool table having ball troughs, or alleyways, for conducting the holed, or pocketed, balls from the vicinities of the pockets to a receptacle beneath the table, a ball receptacle comprising an outer dish-shaped portion, to receive the ball, and an inward, gutter-shaped extension fitting within the outer end portion of the alleyway of the table; said ball receptacle being securely fastened to the woodwork of the table, without fitting, or securement, to the exterior surface of the table body.”

The defense to this claim is that the patent is void for want of invention, and, if valid at all, must be so limited that defendant's device does not infringe. We find nine patents in the prior art showing various constructions of pool tables of the bottomless pocket, concealed conduit, type. Complainant's expert, after discussing them, admits that pool tables of that general character are old, and, further, that the combination of (1) “the table body”; (2) “the ball conduit thereof”; (3) “the usual pocket iron”; and (4) "a ball receiver, or ball receptacle, having dish-shaped or cup-shaped portion to receive the ball and deflect it toward the alleyways or conduits”-is old.

This being so, did it involve invention at the date of the application for the patent in suit to disclose an “inward, gutter-shaped extension fitting within the outer end portion of the alleyway of the table," and a way to dispose of the ball receptacle so that it might be “securely fastened to the woodwork of the table, without fitting, or securement, to the exterior surface of the table body”? As long ago as April, 1878, Boyle, in No. 203,108, had a vague notion of the advantage to be found by making the pockets on a pool table bottomless, so that the balls might be conveyed in conduits under the table to a general receptacle; but he did not explain how to connect the pocket with the concealed conduit, nor how to convey the balls properly in the conduit. Three years later, Jefferson, in No. 239,508, studied the same problem. He showed conductors leading from each pocket to a central conductor, which in turn leads to a general receptacle. He saw that the ordinary net pocket of Boyle must shake about when a ball was driven into it, and so undertook to correct that by offering “K,” which is a slanted sole-leather attachment, with strips to be buttoned on to the netting at such a point that the ball would be guided by the leather into the conduit. Brunswick, No. 324,004, August 11, 1885, took an appreciable step forward. He was the first to realize that to produce a successful concealed conduit system for pool tables, it was essential to provide a means for reliably and accurately insuring the delivery of the balls from the table into the conduits. Using the ordinary table and pocket iron, he fastened to the pocket iron a pocket of soft or yielding material, preferably of leather or worsted netting. This was extended down and made fast to a metal cup, which was screwed onto the exterior of the table. This cup is so arranged that it is in alignment with and connected to the alleyway or conduit.

In this state of affairs Cunningham came upon the scene, asking for the patent in suit. He avoided marring the exterior surface of the table by putting the metal cup of Brunswick below the pocket and inside the table. Jefferson had shown a sole-leather attachment, “K,” used to guide the ball to the conduit, and located inside the table. It was not too “cup-shaped,” it is true; but it curved like a cup in one direction, and it is admitted that it had a tendency, at least, to curve in the other direction. With Jefferson's suggestion before him, it was easy to find in Brunswick's device the cup-shaped part of his construction, and the gutter-shaped extension into the conduit is obvious therefrom. With his first patent in mind, Cunningham shortly proceeded to apply for his second patent, No. 559,790, dated May 5, 1896, of which claims 1 and 3 are in issue:

"1. In that species of pocket table provided with ball conduits, or concealed alleyways, the combination, with the table body, the ball conduit thereof, and the usual pocket iron, of a ball receiver and guide, which communicates, at its inner portion, with said ball conduit, and the outer upper portion, f, of which is curved upwardly toward and near to the pocket iron and is securely fastened at its upper edge to the depending portion of the leather covering of said iron, all substantially as and for the purposes set forth."

“3. In combination with the table body, the ball conduit thereof, and the usual pocket iron, a ball receiving and guiding device having a cup-shaped outer portion, f, extending up toward and fastened to the pocket iron, or its covering material, and composed of thick leather, molded or formed into the requisite shape, as and for the purpose set forth."

The first patent described a cup-shaped receiver with a series of perforations for the attachment thereto of the leather of the pocket iron

in about the usual manner.” It might have been either of metal or leather, and the third claim of this patent only differs from the first by calling for leather. The only substantial difference, therefore, between the two patents, is that in the one now under consideration the cup-shaped device is carried up nearer to the pocket iron. With the entire prior art before him, he cannot well be credited with invention for such a suggestion as that. The more one studies these two patents, the less he finds in them. A simple statement of what the patentee had done would have exposed their sterility. It is true that the greatest simplicity may embody the highest inventive thought; but one finds no such thing here. The second is void for lack of invention, and the first has, at best, so little merit that the defendant escapes infringement.

So much for the pockets and their connection with the conduits. Now as to the conduits themselves. The third patent in suit touches that matter. It is No. 556,532, dated March 17, 1896. The claims as finally allowed and now at issue are:

“1. The wooden ball trough for pool tables, provided with the rabbets, e, and with strips, C, C, of elastic material, such as is described, secured in the rabbets so that the ball will travel only on their upper and inner edges, as and for the purpose set forth.

"2. The wooden ball trough for pool tables, comprising the pieces, A, A, and b, b, provided with rabbets, e, in the pieces, A, A, and with the strips, C, C, of elastic material, such as is described, secured in the rabbets so that the ball will travel along their upper and inner edges, as and for the purpose set forth."

To construe them fairly we must glance at the prior art, and at the proceedings in the Patent Office. When an ivory ball rolls down a

wooden trough located within a pool table it naturally makes a noise, and this would not please the player at the game. Jefferson and Reingardt thought of that, and sought to avoid the trouble by lining the troughs with cloth or rubber. Augustine, No. 472,423, April 5, 1892, had a track with parallel ribs upon which the balls rolled, thus reducing friction; but the entire track was covered with leather or other suitable material to diminish noise. (See page 3, lines 42-45, specification.) Goss, No. 507,900, October 31, 1893, had a conduit which he called a “table chute.” It was composed of several parallel wires or rods covered with soft rubber to prevent injuring the balls, and so arranged as to form a circular wire cage in which the balls were carried along. Noise would be thereby materially diminished, of course; but the patentee says nothing about that feature of his construction. Roberts, 425,551, April 15, 1890, suggested a means of getting the balls on a bowling alley back to the player by using what he called a "noiseless bowling crease.” The crease upon which the ball is delivered by the player is covered with cork or linoleum, and this covering seems to extend over and be applied to the “slanting channel” in which the ball comes back to the player.

The use of skids upon which barrels are rolled in and out between truck and warehouse is well understood by everybody. This, and more, being the case, Mr. Cunningham went to the Patent Office. He attempted to claim a conduit with an open bottom (old in Ryan patent, 249,679, November 15, 1881), provided with two parallel ways, or skids, of rubber, or other noiseless material, upon which the balls should travel. He did not specify just how the balls should roll on the skids or how the skids should be attached to the conduits. He wanted the full benefit of the skid construction, so long as he kept the balls “wholly" thereon. He was rejected, and at once renewed his attack. This time, instead of asking for the entire skids, he limited their use so that “the ball must travel on the angular portions or edges thereof,” but was again rejected. He appealed to the board, who affirmed the examiner, but suggested the present claims, which were allowed. These claims limit him specifically to rabbets in which to secure his skids. He does not monopolize the right to secure them in grooves near the edges. He must come out to the very edge and use the well-understood rabbet device to obtain securement. In this apparent advance in the art there is really no advance at all.

His argument in support of his right to avail himself of the angular portions or edges of the skids to support the balls was rather persuasive, and may have merited a better fate at the hands of the Patent Office; but the trouble seems to have been that the patentee was in great straits. While the contest proceeded his employer (the complainant herein) was making his conduits, and they wanted to stamp the patent mark thereon as a warning to trespassers; and so he appears to have abandoned all chance of impressing the office with the merit of his request. He deliberately threw away the substance and caught at a shadow.

We need not waste words about the commercial success of the combined patents, nor upon infringement. In August, 1896, Cunningham applied for patent No. 573,262, which issued December 15, 1896.

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