[3] Finally, it is said that as the Egg Company shipped to itself, without sale, the packages were never a part of interstate commerce. We know of no authority for such a proposition. Certainly the case of Hipolite Egg Company is not such.

The decree is reversed.

THE CHARLES J. SENFF.

(Circuit Court of Appeals, Second Circuit.

No. 267.

May 8, 1911.)

COLLISION (8 95*) STEAM TUGS CROSSING-FAULT.

A tug, with a car float alongside, proceeding up the Hudson at night, held not in fault for a collision between her tow and a tug coming down on a crossing course from her starboard side, and which failed to hold her speed after the exchange of passing signals.

[Ed. Note. For other cases, see Collision, Cent. Dig. §§ 200-202; Dec. Dig. § 95.*

Signals of meeting vessels, see note to The New York, 30 C. C. A. 630.]

Appeal from the District Court of the United States for the Southern District of New York.

Suit in admiralty for collision by Owen J. McWilliams, as owner of the tug Zouave, against the tug Charles J. Senff; the Brooklyn Eastern District Terminal Company, claimant. Decree for claimant, and libelant appeals. Affirmed.

The suit was brought to recover damages for a collision between the libelant's steam tug Zouave and a car floated in tow of the steam tug, Charles H. Senff, which occurred in the North River on June 8, 1907, about 2 o'clock in the morning.

At the time of the collision the Zouave was proceeding down stream on the New Jersey side of the river and the Senff was proceeding up the river with a car float upon her port side projecting about 100 feet ahead of her. Those in charge of the Senff assert that when they first observed the Zouave they saw her red light on the starboard bow of the Senff about or less than 1,000 feet away; that immediately upon such light coming into view, the vessels exchanged signals of one whistle, and that soon afterwards the Senff stopped and reversed her engines.

Those in charge of the Zouave assert that they first saw the green light of the Senff on the Zouave's port bow when about a mile and a quarter away, and that the vessels then exchanged a one-whistle signal and afterwards exchanged another similar signal.

It appears that the Zouave failed to hold her speed and slowed down shortly before the collision. The port corner of the car float struck the port side of the Zouave inflicting damage. Both vessels appear to have blown alarm whistles.

The principal questions of fact upon the trial related to the courses of the vessels; the distance of the Zouave out in the river, and the distance between the vessels when first seen.

The District Judge who heard and saw the witnesses said that it was doubtful whether the Zouave was far out enough in the river when coming down to make the starboard hand rule applicable and that the cause seemed to be one for the rule of "special circumstances." But he further held that if the starboard hand rule were applicable, the Zouave failed to fulfill her •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

duty under it because she failed to hold her course and speed, and, conse quently, he dismissed the libel.

De Lagnel Berier and James J. Macklin, for appellant.
Samuel Park and Carpenter & Park, for appellee.

Before LACOMBE, WARD, and NOYES, Circuit Judges.

NOYES, Circuit Judge (after stating the facts as above). Both alternatives in this case seem to lead to the same result. If the Senff were not the burdened vessel, it is not apparent how she was in fault. Stopping and reversing when the Zouave was seen was undoubtedly the proper way to obey the signals and avoid a collision, and the testimony does not warrant a finding that there was negligence in failing to see the Zouave sooner. If, on the other hand, the Senff were the burdened vessel, the same course was proper to keep out of the way of the Zouave. The latter as the privileged vessel was the one at fault because she reversed her engines and slowed down instead of holding her speed. We think the District Judge fully warranted in saying that "that slowing probably brought about the collision."

The libelant, however, contends that the Senff as the burdened vessel was at fault for unnecessarily misleading the Zouave. This contention is based upon the theory that the Senff should have seen the Zouave while quite a long distance away and, instead of holding her course and stopping, should have ported her helm and thus have indicated clearly her intention to avoid the Zouave. But with the car float alongside and projecting ahead and the vessels as near as we think the weight of testimony places them, we are by no means satisfied that this would have been the wisest course for the Senff to take to avoid a collision, and her failure to take it cannot be regarded as unnecessarily misleading the Zouave.

The libelant also contends that the stopping and backing of the Zouave was not a fault but an error in extremis. It is, of course, true as stated in The Oregon, 158 U. S. 186, 204, 15 Sup. Ct. 804, 812, 39 L. Ed. 943-from which the libelant quotes-that "when the master of a vessel is confronted with a sudden peril caused by the action of another vessel so that he is justified in believing that collision is inevitable," his error in the exercise of his best judgment will not be regarded as a fault. But we think there is nothing in the present case calling for the application of this principle. We perceive no sudden peril into which the master of the Zouave was led by the action of the Senff.

The decree of the District Court is affirmed with costs.

ASHLEY V. SAMUEL C. TATUM CO.

(Circuit Court of Appeals, Second Circuit. June 6, 1911.)

No. 213.

PATENTS (328*)-INVENTION-INKSTAND.

The Ashley patent, No. 829,752, for an inkstand which is made of glass, having a square or angular base and a substantially flat top with a circular reservoir therein, the glass being turned in to form a dome shaped cover to the reservoir leaving an opening in the center is void for lack of invention in view of the prior art.

Appeal from the Circuit Court of the United States for the Southern District of New York.

Suit in equity by Frank M. Ashley against the Samuel C. Tatum Company. Decree for complainant, and defendant appeals. Reversed.

See, also, 181 Fed. 840, and 186 Fed. 339.

Wood & Wood, for appellant.

A. T. Scharps and Frank M. Ashley, for appellee.

Before LACOMBE, WARD, and NOYES, Circuit Judges.

LACOMBE, Circuit Judge. The patent is No. 829,752, issued to complainant January 12, 1906; the design patent was issued August 8, 1905. The specification of No. 829,752 states that the invention relates particularly to that type of inkstands which is pressed in iron molds and has a base portion of a different form from the ink-well therein, and particularly to a square inkstand having a circular well formed therein and made of pressed glass. "The square glass inkstands made of pressed glass are generally formed by an iron mold and a round plunger is forced into the mold when the glass is in a molten state, and as the glass sets or crystallizes the plunger is withdrawn and the glass turned out of the mold, leaving a base square in cross section and a circular opening usually beginning flush with the surface of the square, as indicated by line xx on Figure 1 of the drawings."

The drawings are here reproduced:

"Therefore when the bases are used for the automatic type of inkstand which use floats of hard rubber, and are of a much smaller diameter than the For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

opening of the well proper, it is necessary to use an extra top disc of hard rubber as a cover for the reservoir and to support the float and other parts of the automatic combination. By my invention I obviate the necessity of using this extra disc cover and have conceived a method of construction, as well as a new construction which makes a far better, cheaper and handsomer and more durable stand of this form than has heretofore been constructed. "The object of my invention is to provide an inkstand base of square or irregular cross-section having a circular reservoir and a turned-in glass top or cover for the reservoir formed integral with the base and turned in toward the center of the stand at a point directly above the square of the base."

Referring to the drawings the patentee states that:

"Fig. 1 is a vertical sectional view showing the shape of the glass as it comes from the mold, and Fig. 2 is a vertical sectional view showing the stand with the top turned in. A indicates the square base, B the top ring as it is first formed and C shows the stand after the ring B has been turned in while in a molten condition."

The claims are as follows:

"(1) An inkstand made in a single piece, having a body angular in cross section and provided with a substantially flat top, a circular reservoir therein, and a turned-in portion directly above the top forming a low dome, substantially as shown and described.

“(2) An inkstand having a reservoir body with thickened walls and a domeshaped cover therefor made integral therewith and of less diameter than the body, and having its wall of less thickness than the body portion.

"(3) An inkstand having a reservoir body with thickened walls and a cover therefor made integral therewith and of less diameter than the body, and having its wall of less thickness than the body portion, and formed above the body portion and provided with an opening, substantially as described."

The patentee was not the first to turn in the projecting ring formed on the top of a molded glass inkstand so that it would partially cover the reservoir and would reach in far enough to support an automatic float. We understand that he undertakes to differentiate the prior art by the suggestion that "the turned-in portion of the earlier stands was at a considerable distance above the thickened cylindrical walls." We cannot find in the lower dome of his patent combined with a square base any useful function, although the appearance of the completed structure may be more artistic and attractive; but that element would be the subject of a design patent.

From the account which he gives of his invention it appears that when he first ordered an inkstand of the glassmakers they insisted that it could not be done. The process is first to form the base with an upstanding ring; then after it has cooled the ring portion is heated to a degree which will permit the ring to be spun inward toward the center; the glass being in a sufficiently heated condition at its top end to permit the spinning of this collar inward, while maintaining the body portion in a comparatively cooler condition, so that in holding the same, the holding implement will not deform the body. portion. This method was in use for spinning-in the high collars of the prior art. The glassmakers insisted that it could not be employed. with Ashley's short-necked collar because the heated portion of the collar was so close to the square top of the square base that the dome portion would crack loose from the base portion in cooling. The glassmakers turned out to be correct, for this very thing happened

in the first attempts to make these stands. The patentee thereupon devised a plan to meet this difficulty. He had the molds altered so as to form a fillet at the base of the collar where it joined the top of the reservoir. He also supplemented the old process, after the top had been turned in, by "immediately thereafter placing the entire stand in an annealing oven and re-heating the same to a red heat to remove the stresses set up in the pressing operation, and allowing the stand to gradually cool, so that the lower portion would become cold about as fast quickly as the cover portion." These modifications of the old process remedied the difficulty and made it possible to construct inkstands having the square base and low dome of the patent without cracking. It may be that the patentee invented a novel and useful process for making glass inkstands, but his specification did not disclose it to the world, and his claims cannot thereby be sustained. Indeed the specification states that "those skilled in the art will have no difficulty in making the stand from the drawings." He explains this by stating that before he filed his application he had imparted to the molders who were making stands for him all the necessary steps of his improved process.

We are satisfied that the inkstand itself as a completed structure exhibits no invention, and for that reason the patent is invalid.

Decree reversed and cause remanded, with instructions to dismiss the bill.

VICTOR TALKING MACHINE CO. v. AMERICAN GRAPHOPHONE CO. (Circuit Court, S. D. New York. March 27, 1911.)

1. PATENTS (§ 328*)-VALIDITY AND INFRINGEMENT RECORD FOR TALKING MACHINES.

The Johnson patent, No. 896,059, for a record for talking machines and method of making the same, which consists of a laterally undulating record of constant depth in which the groove is formed by cutting out and removing the material of the disk by a cutting tool instead of being displaced by a needle point tool, and in which the side walls of the groove are clearly defined and smooth surfaces, and in the preferred form diverge from the bottom to the surface of the record, was properly granted in the discretion of the Patent Office on a divisional application, and was not anticipated by the Jones patent, No. 688,739, and discloses invention; also held infringed.

2. PATENTS (§ 229*)-SUIT FOR INFRINGEMENT-DEFENSES-ESTOPPEL.

A patent for a process consisting of a number of steps may be valid, although each of the steps was old, and a decree finding infringement of such a patent does not estop the defendant from claiming a valid patent himself for one of such steps, nor from maintaining a suit against the complainant for its infringement.

[Ed. Note. For other cases, see Patents, Dec. Dig. § 229.*]

3. JUDGMENT (§ 701*)-PERSONS CONCLUDED-STOCKHOLDER IN CORPORATION DEFENDANT.

A stockholder in a corporation which is sued for infringement of a patent, although owning a majority of its stock, has not the legal right to control the defense in such suit, nor to intervene and make a separate *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes