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is taking place; the water being supplied through pipes of suitable construction. After it is thoroughly mixed or slaked, it is drawn off into vats, and left standing therein a sufficient time under water to allow any particles which may not be thoroughly slaked in the mixing chamber to become so, from which it is removed, and is then ready for use."

Adams' claims are: "(1) The method, as herein described, of slaking lime by first reducing the lime to a uniform condition by pulverization and bolting, then placing it in a tight or covered slaking chamber, and, while inclosed, applying the water and stirring, for the purpose as herein specified.

“(2) The process of slaking lime by first reducing it to a uniform condition by pulverization, and then subjecting it to the water while in an inclosed mixing chamber, for the purpose as herein specified."

It is urged that this is not the process used by Lauman; that a measured quantity of water (being the only water used) is not added to the lime at the start, and the mixture then confined in the closed vessel, but water is continually added as the process goes on, and the product is not a dry hydrate, but a semifluid mass, capable of being "drawn off into vats.” But the only difference is in the quantity of water used, and the time when it is applied. The use of the closed chamber, "airtight, comparatively speaking," the introduction therein of the lime with the water to slake it, and the employment of a suitable stirring apparatus during the slaking operation, are present in each process. Lauman, however, ascertains in advance the quantity of water necessary to do the slaking, and introduces it at the start, while Adams introduces the water as needed until the lime is all slaked. Adams' chamber being substantially airtight, the same pressure from the confined steam resulting from the union of the lime and water would be obtained. The question therefore is, was the modification of Adams' process by ascertaining the quantity of water needed, and introducing it at the start, an act of invention? Did it involve an exercise of the inventive faculty ? We are satisfied it did not. Nothing but an acquaintance with the usual processes of slaking lime, and the exercise of ordinary powers of observation and deduction, were required to suggest this change. To find out how much water was needed, it was only necessary to experiment and observe; and to apply that water at the start, so that all the water might be mixed at the same time with all the lime, the exercise of powers of reflection and reason, common to all, might suffice to suggest. No superior gift of intelligence, no intuitive faculty of discovery, none of those higher powers which patents are intended to reward and inspire, were required or employed to suggest the change made by the Lauman patent.

Holding the patent void for the reason stated, the judgment below is affirmed.

LAUMAN v. URSCHEL LIME CO.

(Circuit Court of Appeals, Sixth Circuit. February 18, 1905.)

No. 1,359.
Appeal from the Circuit Court of the United States for the Northern
District of Ohio.

John H. Roney, for appellant.
Almon Hall, for appellee.
Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

PER CURIAM. This case is similar to No. 1,358 (August H. Lau

v. The Urschel White Lime Company, 136 Fed. 190). It charges an infringement of the same patent, and was decided in the same way in the court below, the bill being dismissed. Having held the patent void, the judgment must be affirmed.

ROBERTS V. BENNETT.

(Circuit Court of Appeals, Second Circuit. January 20, 1903.)

No. 95.

1. PATENTS-DESIGNS-METAL BASKET.

The Bennett design patent, No. 25,927, for a design for a basket made of metal, is void for anticipation by the patentee's prior mechanical patent No. 541,805, and also because the design shown has no novel ele

ment of beauty to commend it to the eye and render it patentable. 2. SAME-ACTION AT LAW FOR INFRINGEMENT-MATTERS OF WHICH COURT

MAY TAKE JUDICIAL NOTICE.

In an action for infringement of a patent for a design for a basket, irrespective of the evidence of anticipatory devices, the court may take

judicial notice of the ordinary and conventional bushel basket. 3. SayE-QUESTIONS FOR COURT.

Where a patent is void on its face, or is shown to have been anticipated by prior patents, or where the presumption of novelty arising from the grant is overcome by proof of the prior art, or by facts of which the court may take judicial notice, it is the duty of the court to so instruct the jury in an action at law for its infringement.

In Error to the Circuit Court of the United States for the Northern District of New York.

This cause comes here by writ of error to review a judgment of the United States Circuit Court for the Northern District of New York in favor of plaintiff below for $168.90, entered upon a verdict of a jury in an action for infringement of plaintiff's patent No. 25,927, granted to him August 11, 1896, for a design for a basket.

Louis Marshall, for plaintiff in error.
Edward H. Risley, for defendant in error.

Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

136 F.-13

TOWNSEND, Circuit Judge. The decisive question herein was raised by defendant's exception to the denial of his request to instruct the jury to render a verdict for defendant upon the ground, inter alia, that the patent in suit showed no such invention as is requisite to sustain a design patent, and was not ornamental.

The material portions of the specification and claims and Fig. 1 of the patent are as follows:

“Baskets of my design are of the form shown, constructed of metal and without openings or perforations as distinguished from baskets heretofore made of splints or flexible strips interwoven, and the basket is provided with a small roll, A, on its upper edge, and an indented bottom, B, with handles, C, C, all substantially as shown in the drawings. The body of the basket is round, and of a slight conical shape between the roll and a point where the material is curved inward to form the bottom.

“What I claim is :
"(1) The design of a basket herein shown and described.

"(2) A basket of the form shown, and having rolled edge, an indented bottom, and handles projecting above the edge, as shown and described."

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The patent is invalid for the following reasons:

1. Plaintiff's prior patent, No. 541,805, described, claimed and illustrated a metal basket, which, he says: "Is designed to form a desirable substitute for the ordinary willow basket now used, • adapted to contain about one bushel,

with a curved, upwardly extending bottom,

with an annular exterior flange (at) the extreme upper end of the receptacle.

Large handles may be secured by rivets or other means to the receptacle near the upper end thereof. The object of the invention is to provide a new and improved basket, which combines durability and strength with lightness," etc.

The drawings show a basket almost identical in shape, barring some negligible corrugations, with that shown in the design patent.

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If the plaintiff was entitled to any patent for the advantages claimed for such a construction, they were covered by the prior mechanical patent. “Functional utility entitled the patentee to the mechanical patent already discussed, but mere functional utility did not entitle him to a design patent for the same article." Christopher C. Bradley v. Richard Eccles, 126 Fed. 945, 61 C. C. A. 669; Royal Metal Mfg. Co. v. Art Metal Works (C. C.) 121 Fed. 128: Id. (C. C. A.) 130 Fed. 778.1

2. There is nothing in the shape or construction of the basket of the patent in suit which “appeals in any way to the eye, or serves to commend it to purchasers and users as a thing of beauty.” Bradley v. Eccles, supra. It is not useful as a design. "The term ‘useful in relation to designs means adaptation to producing pleasant emotions. There must be ‘originality and beauty; mere mechanical skill is not sufficient.'” Řowe v. Blodgett & Clapp Co. C. C.) 103 Fed. 873, 874; Bevin Bros. Mfg. Co. v. Starr (C. C.) 114 Fed. 362; Eaton v. Lewis (C. C.) 115 Fed. 635, affirmed 127 Fed. 1018, 61 C. C. A. 562.

3. Irrespective of the fact that prior metal baskets of the same general shape shown were introduced at the trial, the court may take judicial notice of the conventional bushel basket, which the design patent is evidently intended to simulate in general shape, inwardly curved bottom, and handles. Black Diamond Coal Mining Co. v. Excelsior Coal Co., 156 U. S. 611, 616, 15 Sup. Ct. 482, 39 L. Ed. 553, and cases cited. In these circumstances it is unnecessary to discuss plaintiff's contention that the questions of novelty and patentability are not open for review in this court. Where the patent is void upon its face, or is shown to have been anticipated by prior patents, or when the presumption of novelty arising from the grant is overcome by proof of the prior art, and, as in this case, by facts of which the court may take judicial notice, it is the duty of the court to instruct the jury to that effect. Black Diamond Coal Mining Co. v. Excelsior Coal Co., supra; Market Street Cable Railway Co. v. Rowley, 155 U. S. 621, 15 Sup. Ct. 224, 39 L. Ed. 284, and cases cited.

The judgment is reversed, with costs.

i See, also, 136 Fed. 210.

CALCULAGRAPH CO. V. WILSON.
(Circuit Court, D. Massachusetts. March 18, 1905.)

No. 2,064.
1. PATENTS—INFRINGEMENT-VIOLATION OF INJUNCTION.

The Hamilton patent, No. 424,291, for an apparatus for recording measurements of time, space, or quantity, claim 1, and the Abbott patent, No. 593,320. for a calculagraph, which embodies the invention of the Hamilton patent in a machine for automatically recording the length of time a long-distance telephone has been in use, claim 1, held infringed by a new machine, made by defendant after having been enjoined from infringement of said claims, and the offering for sale of such new instrument to have been a violation of both the preliminary and permanent in

junctions, constituting a contempt of court. 2. SAJE-PROCEEDINGS FOR CONTEMPT.

The attempt of a defendant who has been enjoined from infringe ment of a patent to see how closely he can imitate the patented device without infringement is not looked upon with favor by the courts, and where the new structure in fact infringes it is no defense to contempt proceedings for violation of the injunction that defendant acted under advice of counsel.

[Ed. Note.-For cases in point, see vol. 27, Cent, Dig. Injunction, $ 419; vol. 38, Cent. Dig. Patents, $8 616-618.]

In Equity. In the matter of petition for attachment for contempt.
Edwin J. Prindle, for petitioner.
Frederick L. Emery and J. Steuart Rusk, for respondent.

HALE, District Judge. This case now comes before the court upon a rule to show cause on a petition for attachment for contempt, brought by the complainant against the defendant. This court, in 132 Fed. 20, had before it the question of the validity of the patents in suit and of their infringement. The court ordered a decree to be entered for the complainant, for an injunction, and for an accounting. A preliminary injunction had already been decreed by the court. Defendant is charged with violating both the preliminary and the final injunctions. The affidavits brought before us show that since the issuance of the injunction the defendant has designed, manufactured, and offered for sale a certain machine, which is referred to for convenience as the “New Wilson Machine.” The evidence offered in the affidavits tends to show that this machine is designed for use on telephone switch boards. It consists of a case, having a rotating clock movement, an annular die within a stationary dial die. The annular die is provided with two graduations, spaced apart a distance equal to the initial period allowed by the telephone companies for the minimum charge, usually three min

The machine shows a pointer in juxtaposition with the zero or initial graduation, the pointer being curved around to connect with the last graduation, the two graduations and the pointer thus forming a U-shaped or horseshoe figure. The annular die rotates once an hour. Within the annular die is a disk carrying an hour hand. A single platen serves to press a card against the dies. The card is held in a definite position by the base of the bracket which forms the guide for a plunger stem, and by another guide secured upon the frame of the

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