result which was naturally evolved when the problem was presented for solution to one trained in the mechanics and practice of the art in question. To concede he was the first to do what he claims, does not, of itself, stamp the device with patentable novelty, for to do so would be to make mere mechanical novelty the test of patentability. That Mr. Phillips was an improver structurally; that he made his tumbler of such proportions as to carry coal sufficiently to properly agitate, but not so high as to throw and break it upon the shaft; that he placed such tumbler at a point where it did not sacrifice screen surface,-might be conceded. That he so located the parts that they could be assembled and furnished in a completed form in place on a segment, was an admirable idea, and the same may be said of his riveting the joint plate permanently to one segment, and adapting it for temporary attachment to its abutter, so that it could be quickly clamped to the spider rim and the adjoining segment, and as quickly detached. While all this may be said of his device, yet, to our judgment, underneath and underlying it all is the mere mechanical and commercial conception, and not the original, primary ingenuity or originating inventive faculty which mark the patentee. While he has produced a useful device, while it may have gone into quite extensive use, yet these elements, while often the accompaniments, are not necessarily proofs, of patentability. The different parts-segment, tumbler bar, and protector plates-were cleverly rearranged, adjusted, and assembled, but in their new relations they performed no new function, individually or collectively. The tumbler bar still tumbled the coal in precisely the same manner it did when placed elsewhere; the protector plate performed its individual function of strengthening the joint and preventing leakage. Its presence or absence neither added to nor detracted from the function of the tumbler, and the same may be said of the tumbler in connection with the protector plate. There was no interweaving and intermingling of functions; no new process or result was produced by their contiguity. Each had its independent function, which neither isolation or combination changed.

From the standpoint of complainants' proofs alone, we are satisfied the patent must be adjudged void, as lacking patentable novelty. For this reason we have not deemed it necessary to discuss in detail the large number of alleged prior uses shown in the proofs. But, as corroborating our view that Phillips' device was the natural development of the art as novel conditions and changed requirements called for new appliances, we may refer to the device proved by complainants' witness Stull. He shows that about the time of Phillips' conception, and without any knowledge of it, he devised a joint protector plate, combined with a tumbler, which he says suggested itself to him "as an easy and practicable method of preventing the escape of coal through the joint, and tumbling it, in its passage." His method was this: Over the joint between the abutting edges of two perforated plate segments he placed two angle irons, back to back. These were held in place by U clips or bolts, passed through the screen mesh holes, and secured by washers and bolts. The angle irons came from the colliery scrap pile, were too large, and carried

the coal too high. The device was discarded after a short time on that account, but witness says, and properly, we think, that it prevented leakage, and would have tumbled the coal satisfactorily had the angle irons been smaller. The fact that such a plan was followed is suggestive, however (see Haslem v. Glass Co., 68 Fed. 481), and shows that Phillips' and Stull's devices were the natural mechanical outgrowth of the progress in colliery practice. Let a decree be prepared dismissing the bill.

TRAVERS v. HAMMOCK & FLY-NET CO.

(Circuit Court, E. D. Wisconsin. March 2, 1896.)

PROCESS PATENTS-VALIDITY-MECHANICAL PROCESS.

The Rood patent, No. 296,460, for "the art of making hammocks," which describes a method of forming the ends by drawing a cord straight through the end loops of the hammock body to form the converging strands, which are gathered into the suspension loop or eye, construed as a patent for a process, and as covering mere mechanical operations, so that it is void on its face for want of patentability. Locomotive Works v. Medart, 15 Sup. Ct. 745, 158 U. S. 68, and Glass Co. v. Henderson, 15 C. C. A. 84, 67 Fed. 935, applied.

This was a suit in equity by Vincent P. Travers against the Gem Hammock & Fly-Net Company for alleged infringment of two patents relating to the art of making hammocks. Defendant demurs to so much of the bill as relates to patent No. 296,460, issued April 8, 1884, to Albert O. Rood, assignor to the complainant.

Figs. 4, 5, and 6 of the drawings accompanying the patent are diagrams showing different stages of progress in the manufacture of hammock ends, and Fig. 3 is a top view of a hammock having one of its ends finished and the other in process of construction.

This invention has for its object to simplify the mode of constructing hammocks, and particularly the ends thereof, which are the parts of hammocks containing the converging threads and the suspension eyes or loops. The invention consists, principally, in forming the hammock-body with loops in the ends thereof in any known manner; in then forming each end of the hammock by drawing a cord, from which

the converging strands are to be made, through the loops at the ends of the hammockbody in a straight line, and in then drawing this thread from between said loops, forming of it the converging strands of the hammock end, and finally uniting these strands into a terminal eye, all as hereinafter more fully described and claimed.

The two claims of the patent read as follows:

(1) The art of making hammocks which consists in forming the hammock-body with loops, b, b, in the ends thereof, in any known manner, then forming each end of the hammock by drawing the cord, E, from which the hammock end is to be made, in a straight line through the end loops, b, b, of the hammock-body, and in then drawing said cord from between said end loops, b, b, forming of it the converging strands of the hammock end, and in finally uniting these strands into a terminal eye, i, substantially as herein shown and described.

(2) The art of making hammocks, which consists in forming the hammock-body with loops, b, b, in the ends thereof, in any known manner, then forming each end of the hammock by drawing the cord, E, in a straight line through the loops, b, b, that are at the ends of the hammock-body, D, in then drawing this cord out from between the end loops, b, and holding it temporarily, in then coiling or winding the outer part of this cord, and in then forming from this coiled or wound portion the eye, i, at the end of the hammock, substantially as herein shown and described.

Winkler, Flanders, Smith, Bottum & Vilas, for complainant.
Benedict & Morsell, for defendant.

SEAMAN, District Judge. The bill of complaint alleges infringement, respectively, of two letters patent, viz.: First, No. 277,161, issued May 8, 1883; and, second, No. 296,460, issued April 8, 1884. Demurrer is interposed to so much of the bill as relates to the latter patent, No. 296,460, on the ground that the patent is for a process, and is void upon its face. This patent contains two claims of similar nature, and each stated as for "the art of making hammocks." I think each clearly states a process under the definitions of the patent law; that it involves merely mechanical operations without any chemical action or the operation of natural elements; and that, therefore, the process is not patentable under the rule held in Locomotive Works v. Medart, 158 U. S. 68, 15 Sup. Ct. 745, and Glass Co. v. Henderson, 15 C. C. A. 84, 67 Fed. 935. The question is clearly presented upon the face of this patent, and it does not seem to me that aid can be furnished by extraneous or expert testimony. Therefore it is well raised by demurrer, and will thus reach a final determination in the best method for all concerned. The demurrer is sustained.

WELSBACH LIGHT CO. v. COSMOPOLITAN INCANDESCENT GASLIGHT CO.

(Circuit Court, N. D. Illinois. January 29, 1897.)

PLEADING IN PATENT SUITS-CROSS BILL.

In an infringement suit, defendant sought to file a cross bill, setting up that, by reason of the expiration of a prior foreign patent, the monopoly of the patent in suit had terminated, and that, knowing this, complainant maliciously sought to injure defendant by distributing circulars, etc., asserting an exclusive right to the invention, and threatening defendant's customers with infringement suits, to restrain which defendant prayed an injunction. Held, that the cross bill would not lie, for the expiration of the foreign patent was mere matter of defense, and the alleged malicious acts were independent wrongs, unconnected with the matter of the original bill.

This was a suit in equity by the Welsbach Light Company against the Cosmopolitan Incandescent Gaslight Company for alleged infringement of a patent. The cause was heard on a motion by defendant for leave to file a cross bill.

Wm. Findlay Brown and John R. Bennett, for complainant.
Dyrenforth & Dyrenforth, for defendant.

JENKINS, Circuit Judge. This bill was filed to restrain the alleged infringement of letters patent of the United States No. 438,125, granted to Carl Auer Von Welsbach, for an "improvement in the manufacture of incandescent devices for gas burners." The defendant now moves the court for leave to file a cross bill which asserts, in substance, that under the law of the United States, and by reason of the expiration of a prior foreign patent, the monopoly granted by the patent in suit had come to an end prior to this suit. Notwithstanding which, and with knowledge of such facts, maliciously seeking to injure the cross complainant, and deprive it of the profit and advantages to which it is entitled by the use and sale of the patented article, and with a view to deceive and mislead the public by means of printed circulars distributed through the mail, the original complainant asserts itself to be the owner, under the patent, of the exclusive right to the use of the patented invention, and falsely asserts its right to recover damages from any person buying or using the same unless obtained from it, and threatens the customers of the cross complainant and its intending customers with suits for infringement, and with injunctions, and with suits for damages, in case of their purchase or use of the patented invention, if purchased from the cross complainant or from others. than the original company. An injunction is also prayed restraining the original complainant from the distribution of such circulars, and from the continuance of such threats.

If it be true, as asserted (and, for the purposes of the present motions, I assume it to be true), that, by reason of the facts stated, the patent had come to an end, the cross complainant has then a perfect and absolute defense to the suit brought for an alleged infringement of the complainant's patent. That defense required no cross bill for its presentation and assertion. It can be brought

to the attention of the court by plea or answer to the original suit as fully and completely as by cross bill.

It is, however, insisted that the cross bill can be maintained upon the ground that the original complainant, by its circulars and its threats, has intimidated customers and intending customers of the cross complainant, thereby inflicting upon it irreparable damages, which cannot be measured in any suit at law, and that, therefore, equity should extend its preventive arm, and stay the threatened injury. It may be assumed, for the purposes of these motions, that an original bill in equity would lie under the circumstances disclosed, but it does not follow that a cross bill can be sustained. In Tooth-Crown Co. v. Carmichael, 44 Fed. 350, I had occasion to consider the question under similar circumstances, and came to

the conclusion that a cross bill would not lie, because "the purpose of such a bill is to obtain the discovery of facts in aid of the defense to the original bill, or to obtain full relief to all parties touching the matter of the original bill." The defense there alleged anticipation of the patented invention, which, of course, went to the foundation of the complainant's right, and also asserted that the patent, if valid, could not properly be construed to cover the particular forms of artificial dentures claimed in the bill. Here, as there, the cross bill goes to the foundation of the right of the orig. inal complainant to his patented monopoly; for whether the invention be in fact anticipated, or the patent has terminated by operation of law, the monopoly granted by the patent is inoperative and ineffectual. It needs no cross bill here to aid in defense of the original bill, nor is there any relief touching the matter of the original bill which is sought by this cross bill. The matters which are complained of as working irreparable mischief are independent torts or wrongs asserted to have been committed by the original complainant upon the false assumption that its patent is valid. The same charge might well be asserted of any patentee seeking to restrain the infringement of his rights, if his patent be as yet unadjudicated by the court. The acts charged are independent, unlawful acts by the owners of the patent, founded upon its assertion of the continued validity of the patent. Whether those acts be lawful or unlawful depends, perhaps, upon the fact whether its patent has expired by virtue of the law; but these acts, however unlawful, do not touch the matter of the original bill, and have no connection with the assertion of any defense to the original bill, and therefore are not within the scope of a cross bill, for the discovery sought, if one be sought, must be for facts in aid of the original bill, or to obtain full and complete relief to all the parties with respect to matters charged in the original bill, not as to independent acts the lawfulness or unlawfulness of which may depend upon the question of right as asserted in the original bill. The acts charged may constitute the subject-matter of an independent suit, but are not, in my judgment, within the purview of a cross bill. I think that these motions are presented through failure to properly distinguish between a cross and an original bill; and, however great may be the wrong complained of in its effect upon the business of the cross complainant, it is not a wrong that can be remedied by means of a cross bill. I have carefully reconsidered my former decision, to which I have referred, and have examined the authorities presented, and am content with my former decision. I could not grant the relief here asked without extending the practice in equity proceedings beyond its prescribed bounds. To do this, however beneficial it might prove in the present instance (assuming the cross complainant to be entirely in the right), would be to work inextricable confusion in equity procedure, and to overturn the settled law of the land. The motions will be overruled.

78 F.-41