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of Twitchell is the idea of momentarily and after the preliminary injunction had issued quickly applying it to the tire valve and es- in said action of A. Schrader's Son, Inc., 5. tablishing fluid conditions; the particular Protex Manufacturing Co., 254 F. 438, kind of gauging mechanism selected among put out a new gauge known as the Rex the many alternative or equivalent forms is gauge, and claimed it had no gauge bar at immaterial.

all. The court granted a motion for prelim[6] In my opinion the claims of the pat- inary injunction. ent in suit sued upon are valid, and the Not only have the courts uniformly upheld patent in suit is a pioneer patent' entitled the patent in suit, but there has also been to a wide range of equivalents. This opin- evidenced general acquiescence in its validion is supported by the decisions of the ity, first by the plaintiff in this suit, who courts in former actions in each of which when, action was brought against it for inthe patent has been sustained.

fringement purchased the patent, and also In Twitchell v. Northam Auto Pressure by Prest-O-Lite Company and others who Gauge Co. (no opinion filed), the defendant have consented to decrees. claimed that the gauge in question in that The commercial success of the patent in suit, known as the Sandham gauge, had a suit has been very great, and the small numhousing which was not open at one end, or, ber of infringers shows that its validity has if it was, did not have at such end a seat been very generally recognized. for fitting against the air valve, or an anvil Twitchell sold 175,000 of the gauges withfor unseating it. These parts are turned at out any hold-up feature, his sales in all were a right angle in between the ends of the 200,000 in about two years, from which it Sandham gauge. The court, after a trial, appears that there must have been a great held all four claims of the patent in suit need for such a gauge in order for a new valid and infringed.

article to meet with such success within that In Twitchell v. Rudolph & West Co. (Su- time, considering the much smaller number preme Court, District of Columbia), the de- of automobiles then in use. fendant showed that the housing of the As I have herein before held the patent in gauge was closed at its inner end, with suit to be valid and a pioneer patent, and the exception of a small passage.

The therefore entitled to a wide range of equirpress-on foot with valve opener were at alents, I will now consider the question of right angles to the gauge, and opposite to infringement. them was a pump; the gasket used in the Claim 2 of the patent in suit comprises the press-on foot being capable of holding the following elements: (1) A housing open at gauge while pumping is going on. The one end; (2) a seat at such end for fitting court, after a trial, held claims 1, 2, and 3 against the air valve casing of a pneumatie of the patent in suit valid and infringed. tire; (3) means also at such end for unseat

In A. Schrader's Son, Inc., v. E. Edelmann ing such air valve; (4) a spring-held gauge & Co. the defendant claimed that this gauge bar within said housing projecting through avoided the patent because it had no an opening in the outer end thereof; (5) & "spring-held gauge bar" as set forth in the piston head at the inner end of the gauge claim. For the first time in any action on bar. the patent in suit we find in the Edelmann The only apparent material differences begauge the added improvement of a "hold- tween the said claims are as follows: Claim up” indicator, which was not the invention 1 provides for a housing adapted to fit over of Edelmann. The court granted a motion and inclose the casing of an air valve. Claim for a preliminary injunction, and thereafter 2 provides for a seat to fit against the air a decree was entered on consent.

valve casing. Claim 3 provides for a seat In A. Schrader's Son, Inc., v. Protex Man- with a central opening and a fixed part exufacturing Co., 254 F. 438, the defendant tending through said opening. claimed that it did not have a gauge bar at The defendant's structure is shown in the all but had a gauge sleeve; that the gauge drawing which is Plaintiff's Exhibit 27, and sleeve was not spring-held; that there was the numbers of the several elements shown no opening in the outer end of the casing; on said drawing will be used in describing and that, even if there was an opening, the the same. gauge sleeve did not extend through it. The The housing 1 is open at its upper end court granted a preliminary injunction, and and the gauge registers by passing out on the trial held the patent valid and in- through the open end of the housing, it also fringed.

has an opening in the lower end through a In A. Schrader's Son, Inc., v. Protex Tire round rubber cushion 2, and projecting down Gauge Co. (no opinion filed), the defendant, through said cushion a valve pusher or open

zero.

3 F.(20) 999 er 3 which opens the check valve in the tire. has been determined to be spring-held in the The flexible rubber tube 10, called by defend- sense covered by the patent, and this withant a capsule, reaches up through the spring. out regard to whether it was flat or tubular. The periphery of the rubber tube 11 is The defendant contends that the gauge clamped at the bottom between the washer bar is the calibrated portion in both the 8 and the rubber cushion 2.

patent in suit and defendant's device, and In the defendant's structure the spring is that it is not spring-held in the defendant's a tension spring not a compression spring, device and plaintiff's commercial structure, but the two forms of springs are common- because when the pressure of the air is replace alternatives one for the other. The lieved the calibrated portion does not fall to upper end of the rubber tube 10 rests its zero position but remains up. against part 6, and over that part 6, which This contention is erroneous, for the reais a cylindrical form, and secured to the son that during the operation the indicator upper end of the spring, is placed the gauge cannot move until the tension of the spring bar.

is overcome, and defendant's real or priThe gauge bar in the defendant's structure mary gauge bar, as distinguished from its inis cylindrical instead of flat, and, instead of dicator, is literally spring-held in the same going down between the turns of the spring, way as in plaintiff's patent in suit, and when that is, passing down through the center of relieved of the pressure of the air falls to the spring, as in the patent in suit, it passes down into the housing outside of the spring The causing of the extension to remain up where the gauge bar and the spring and the is an added improvement but not the invenhousing overlap to give a compact short con- tion of the defendant, and, even if it was, struction.

the invention of a mere improvement would The defendant's structure has the same not relieve from infringement, when, as in characteristics of adaptability for temporary the suit at bar, the improvement would be reading of the pressure as that of the patent uesless without the patent in suit. It therein suit. It is nonattachable, and is put in fore seems clear to me that the defendant's place and a tight joint made by hand pres- device has a spring-held gauge bar, and sure. It is compact, of rugged construction, therefore the defense of noninfringement is easily carried in the operator's pocket, and, reduced to the claim of the defendant that if put in a tool chest, will stand the rough its device, the Wein gauge, has no piston usage it will there receive.

head at the inner end of the gauge bar. Defendant contends that the rubber cap

That the defendant's structure has a pissule 10 and spring employed in the defend- ton seems to be clearly shown by reference ant's article are not and cannot be said to to United States patents No. 8,361 to Faber, be in any sense the mechanical equivalent of No. 16,428 to Allen, and No. 599,682 to Burthe piston designated as 6 in the patent in dick, cited by the defendant as part of the -suit, and, further, that the defendant's de- prior art, and the testimony of the experts, vice differs from the patent in suit in that as the expert for the defendant said that he the defendant's indicator element is not at found a piston in the patent No. 599,682 to tached to anything that could be character- Burdick. ized as a piston, and when it is forced out Other forms of pistons are shown in the of its casing by frictional means it is re- prior art cited by the defendant, but they do tained in a definite position to indicate the not require detailed consideration; it being degree of pressure which has been exerted sufficient to call attention to the forms shown upon the capsule, and when the air pressure in United States patents No. 39,114 to Breis relieved the spring operates to collapse voor and No. 190,790 to Snyder. the capsule, and does not operate to restore The elastic piston and the sliding piston the indicator bar to its primary position.

have both been known as pistons for many As I understand it, the defense on lack of years, and have been used interchangeably, infringement is that the defendant's device, and effect the same result in substantially the the Wein gauge, has no spring-held gauge same way. bar and no piston head at the inner end of I can find no functional difference between the gauge bar.

the Burdick piston and the piston in defendThe existence of a spring-held gauge bar ant's structure, and Burdick in his patent in the defendant's structure, the Wein gauge, calls the part 16 a piston and the part 15 seems to be beyond question and not to be a cap or head. The only structural differdenied in the face of the Protex and Edel- ence is that the defendant's rubber tube is mann decisions, supra, because in both of closed at the top to avoid leakage where the them, as well as in the Rex, the gauge bar tube contacts with the piston.

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All of the claims 1, 2, and 3 of the patent Quaker Shoe Company, bankrupt. On eerin suit call for "a piston head at its inner tificate of review of order of referee. Disend”; nowhere in said claims is there any missed. mention of a sliding piston head.

Reber, Granger & Montgomery and J. Of course the fluid exerts a lateral pres. Howard Reber, all of Philadelphia, Pa., for sure which in the patent in suit is confined

trustee. against movement by the cylinder wall, and

Furth, Singer & Bortin and David Borin the defendant's structure by the sides of tin, all of Philadelphia, Pa., for bankrupt. the rubber sleeve, but this pressure is negligible compared to the longitudinal pressure

THOMPSON, District Judge. The order which is the effective pressure and moves the of the referee certified for review was only thing which can be moved; that is, the brought before the court upon a certificate piston head or pressure head.

of the referee. It appears by the record In the defendant's structure the piston certified that the bankrupt did not file with head is the same as in Burdick, and is at the the referee a petition for review in accordinner end of the gauge bar, and this is not

ance with General Order XXVII. As the altered by the fact that the gauge bar in the General Order is mandatory in requiring a defendant's structure is extended so that its petition of the party desiring a review, this length is much greater than Burdick's.

court, in the absence of such a petition, In my opinion the patent in suit reads lit- has no authority to review the action of erally on the defendant's structure, and there the referee. In re Russell (D. C.) 105 F. is no need to apply the doctrine of equiva- 501; In re Home Discount Co. (D. C.) 147 lents, but, even if I am in error on that F. 538, 17 Am. Bankr. Rep. 168. point, the structure of the defendant would

The application for review of the order clearly be an infringement of the patent in of the referee will therefore be dismissed. suit because, although part of the gauge bar skirts down below the piston head, that does not detract from the essential and fundamental operation of the defendant's structure, because the courts have interpreted the JACKSONVILLE OIL MILLS V. STUYVEgauge bar as any movable member, such as

SANT INS. CO. et al. à sleeve or indicator, and the elastic pressure SAME V. GLOBE & RUTGERS FIRE INS. head of the defendant's structure is a well

Co. et al, known and clearly understood alternative or

(District Court, W. D. Tennessee, W. D. equivalent for the sliding packed piston of

February 23, 1925.)
the patent in suit.
The defendant's structure infringes claims

Nos. 2901, 2902.
1, 2, and 3 of the patent in suit.

1. Insurance Om500-Policy held to entitle faA decree may be entered in favor of the sured to $150 per day during period it was plaintiff as prayed for in the bill of com

deprived of use and occupancy, regardless of

profits which might have been made. plaint, with the usual order of reference.

Policy insuring against loss of use and oecupancy of mill through fire for not exceeding $150 a day during prescribed period held a valued policy, entitling insured to $150 per day for such period as it should be deprived of use

and occupancy, regardless of possibility of profin re FINKELSTEIN.

its which might have been earned. (District Court, E. D. Pennsylvania. February 2. Insurance 146(3)-Ambiguities in policy 11, 1925.)

construed most favorably to insured. No. 7221.

Where terms of policy are ambiguous, or

have no accepted meaning, they should be conBankruptcy Om 228—District Court will not strued most favorably to insured. review order of referee on referee's certifi- 3. Insurance Cum 146(1)-Intention of parties cate, in absence of petition by party desiring

controls construction. review,

Intention of parties controls construction District Court will not review order of ref

of use and occupancy policy. eree, on referee's certificate of review, in absence of petition for review by party desiring review, under General Order XXVII, such Gen- Separate suits by the Jacksonville Oil eral Order being mandatory.

Mills against the Stuyvesant Insurance

Company and another and against the Globe In Bankruptcy. In the matter of Max & Rutgers Fire Insurance Company and Finkelstein, individually and trading as the another. Decrees for plaintiff.

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3F.(20) 1000 W. P. Metcalf, of Memphis, Tenn., for business of manufacturing the products of plaintiff.

cotton seed and/or peanuts and/or vegetaHughes & Hughes, of Memphis, Tenn., ble seeds, situate at and/or near Jacksonfor defendants.

ville, Texas. Privilege is hereby granted to

use gasoline engines, it being understood ROSS, District Judge. Suit was brought that gasoline storage and feed to the enby plaintiff in each of the above-styled cases gine is in accordance with the underwriters' against each defendant on an insurance pol- specifications. icy issued by the defendants, respectively, “It is a condition of this contract that if commonly called a "use and occupancy" the above-described buildings and machinpolicy. The suits grew out of the destruc- ery, or either of them, or any part thereof, tion by fire of the same property insured by shall be destroyed or damaged by fire or each of the defendants, and the suits were lightning, occurring during the term of this consolidated and heard together.

policy, so that the assured is entirely prePlaintiff is a corporation located at Jack- vented from operating, this company shall sonville, Tex. Each defendant is a corpo- be liable for not exceeding one hundred ration, but neither was suable in the state fifty dollars ($150.00) for each and every of Texas, and inasmuch as each was doing working day of any year between and inbusiness in the state of Tennessee, and rep- cluding October 1st to March 31st from the resented by agents in this district, suit was date of said destruction or damage to the brought in this jurisdiction.

date when, with reasonable diligence, said [1] Plaintiff was engaged in the business building or buildings can be repaired or reof buying cotton seed, from which it manu- built, and/or the machinery thereof be refactured and sold cotton seed products; the paired or replaced therein, as such properproducts being cotton seed oil, cotton seed ty existed before the said destruction or meal, cotton seed hulls, and the lint ginned damage. But if, as a result of said defrom the seed, which product is referred to struction or damage, the production capacias linters. Each policy insured the plain- ty of the plant be only diminished, then tiff in the use and occupancy of its proper- shall the assured's loss per diem be estity, consisting of houses, machinery neces- mated as that proportion of not exceeding sary to the manufacture of cotton seed $150 in which the assured's daily capacity products, storage warehouses, etc., for a is diminished for each and every working period beginning with the 1st day of Octo- day of any year between and including the ber, 1922, and including the 31st day of date above mentioned, from the date of said March, 1923; that is to say, plaintiff was destruction or damage to the date when, insured against loss by reason of inability with reasonable diligence, said building or to enjoy the use and occupancy of the prop- buildings can be repaired or rebuilt and/or erty through fire or any of the other causes

the machinery thereof be repaired or rementioned in the policies, and the insurance placed therein, as such property existed bewas stated to be at a sum of not more than fore the said destruction or damage. $150 per working day for such time as

"It is understood that no claim for loss plaintiff might be deprived of the use and occupancy of the property within the pre- cessation of operations of the within de

shall be made under this policy because of scribed period.

A fire occurred on the 16th day of Octo- scribed premises between the dates of April ber, 1922, which virtually totally destroyed 1st and September 30th for any cause whatthe main building and the principal portion of plaintiff's property, so as to render

"It is understood that for the purpose it unfit for occupation and use as a manu

this insurance, all days are to be considered facturing plant for a period extending con- working days excepting Sundays, and that siderably beyond March 31, 1923, as shown this company's liability for loss and payby the undisputed proof in the case. The ment for days between and including the particular clauses in the policies in question dates above mentioned is not limited by the read as follows:

expiration of this policy, but that this com

pany is liable, in accordance with the con"Jacksonville Oil Mill.

ditions and stipulations above, for total or “Use and occupancy: Oil mills.

partial loss of use and occupancy for all "$23,400 on the use and occupancy (in- working days between and including the cluding fixed charges) of all of their build- dates above mentioned, providing said total ings and machinery used or for use in their or partial loss is caused by destruction or

soever.

of

damage by fire or lightning occurring within tention that the insurance indemnified the the term of this policy."

insured against the loss of earnings or The contention of plaintiff is that it is profits: entitled to recover ratably from the defend- "If the contract was intended as one of ants a total amount of $150 per day for indemnity against the loss of earnings (or each working day from the date of the fire, profits] derivable from the operation of on October 16, 1922, to the 1st day of the elevator plant, the words chosen were April, 1923. The contention of defendant unfortunate, and in my opinion too vague. is that, if plaintiff is entitled to recover any 'Use and occupancy,' as terms of insurance, amount, it is for only such sum as it can may assume, within their general scope, the show its reasonable profits would have been expectation of profits and earnings deriv. for the period intervening between the date able from property; but the terms appear of the fire and April 1, 1923, so that the to have a broader significance as to the subsúm should not exceed $150 for each work- ject of insurance, and to apply to the ing day; in other words, that plaintiff is status of the property, and to its continued entitled to recover only on a profit basis. availability to the owner for any purpose

In Michael v. Prussian Nat. Ins. Co. (Ct. he may be able to devote it to. The defendof Appeals of N. Y., April 18, 1902) 171 ant might have avoided all questions of conN. Y. 25, 63 N. E. 810, plaintiff brought struction, and have made plain the subject suit on an insurance policy covering its ele- of its insurance, if it was the business of vator property, which policy contains the the plaintiff, or its earnings and profits, by following provision:

the use of appropriate and unmistakable "It is a condition of this contract of in- words. But such words occur nowhere. surance that if, by fire, during a continu- The defendant has chosen to make a conance of this policy, the property, buildings, tract of insurance which distinguishes its or machinery therein, or either of them, or subject as something other than the buildany part thereof, shall be destroyed, or so ings or machinery, and which can mean the damaged as to prevent the elevating and oth-, earnings and profits only by resort to reaer handling of grain, this company shall be soning. The terms made use of have not liable at the rate of $4.77 per day for each the accepted significance contended for by working day of such prevention; and in the appellant, and any doubt or ambiguity case the building or machinery, or any part should be resolved against it and in favor thereof, are so damaged as to prevent the of the assured. Janneck v. Insurance Co., elevating or handling of the full daily aver- 162 N. Y. 574, 57 N. E. 182; Matthews v. age of grain, this company is to be liable Insurance Co., 154 N. Y. 456, 48 N. E. per day for that proportion of $4.77 which 751, 39 L. R. A. 433, 61 Am. St. Rep. 627. the elevating or handling so prevented bears Insurance ‘on use and occupancy' evidently to the said daily average ability of said relates to the business use which the propelevator one year previous to the fire, which, erty is capable of in its existing condition. for the purposes of this insurance, shall be If it is destroyed by fire, and its use beconsidered the average daily ability of the comes impossible, then during the period reelevator, not exceeding the amount insured. quired for its reinstatement as property caLoss to be computed from the day of the pable of use and occupation, the owner is occurrence of any fire to the time when the to be compensated according to the terms of building could, with ordinary diligence and the policy. The more reasonable meaning dispatch, be repaired or rebuilt and the of this contract, in my opinion, appears to machinery placed therein, and not to be be that it is a provision for indemnity to limited by the day of expiration named in the owner of the elevator plant in the event this policy."

that it should not continue in the same con. Defense was made to this policy on dif- dition of availability to him, at a valuation ferent grounds from that urged in the in- agreed upon for every day required to restant case, but in determining the matter instate it. The owner had an interest in the court held that the policy was a "val- its continued status as property capable of ued” one, and that the total destruction of being used and occupied, and the defendthe property entitled the plaintiff to recov- ant received its premium upon the basis of er the fixed amount of $4.77 for each work- an agreement as to the estimated daily valing day as to which plaintiff was deprived ue to the assured of such a status." of the “use and occupancy” of the proper- In Tanenbaum v. Freundlich (Sup. Ct. ty. On page 813 of 63 N. E. (171 N. Y. N. Y. App. Term, Jan. 1903) 39 Mise. 34) the court said, in considering the con- Rep. 819, 81 N. Y. S. 292, 115 N. Y. St.

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