Blatherwick vs. Carey. NELSON J. BLATHERWICK vs. EDWARD CAREY et al. CIRCUIT COURT-NORTHERN DISTRICT OF ILLINOIS-OCTOBER, 1881. IN EQUITY. 1. PATENTS-HORSE-SHOES.-The Blatherwick patent, No. 170,809, for an improvement in horse-shoes, for the purpose of preventing interfering, must be limited in its application to the particular kind of shoe described, and cannot be extended to include all shoes where the toe-calk or tumbling point is changed to a point inside the natural line when placed on the hoof. 2. LICENSE-INFRINGEMENT-ESTOPPEL.-The fact that the defendants at one time held a license from the complainant will not afterwards estop them from denying infringement although manufacturing the same article as before. Merriam & Whipple, for complainant. W. B. Cunningham and West & Bond, for defendants. BLODGETT, J.-This is a Bill for infringement of patent No. 170,809, granted to Nelson J. Blatherwick, the complainant, under date of December 7th, 1875, for an "improvement in horse-shoes," and reaching back by caveat to October 21st, 1874. The object of the invention is declared in his specification to be the construction of a shoe to prevent horses from interfering, and this is said to be obtained "by making the shoe broader and fuller upon the inside than upon the outside, enlarging it at the toe and upon the inside, thus increasing the support for the horse at that point, the effect of which is that in traveling this point is the last to leave the ground, Blatherwick vs. Carey. and the tendency is to throw the ankle of the horse outward and away from the opposite leg, instead of inward and toward it, and when the foot leaves the ground it follows this position of the ankle, and is thrown away from rather than toward the opposite leg. When the ankle is in this position the opposite hoof can pass without interfering." The drawing, figure 1, shows the inside fore-quarter of the shoe carried forward so as to project beyond the wall of the hoof to such an extent that the projection beyond the hoof would be at least three-fourths of an inch in an average full sized shoe, and the outside periphery or rim of the shoe, is carried back from the point of the projection nearly in a straight line to the beginning of the hind quarter; that is, to the point where the hoof begins to curve in toward the heel, and when a toe-calk is used it is to be located upon the corner or angle thus projected from the inner fore-quarter; that is, it is to be located considerably to one side of the shoe, and coming to, or nearly to, the outer edge thereof. In other words, the apparent purpose of this device is to practically change the location of the horse's toe from the point of the hoof to this projection inside of the natural toe or forward point of the hoof. The object of the device and its mode of operation is quite clearly described by Mr. Powers, the complainant's expert, who says: "the patent shoe is carried forward on its inner side in nearly a straight line to and even with the front of the foot, and this forward extension, when the foot tips forward upon the toe in the act of moving, continues the longest in contact with the ground, or leaves the ground last. The effect of this construction and motion is to cause the foot, in forward progress, to swing or tumble upon this extended point outward, and to a certain extent, removing the passing foot and leg of the horse, thus preventing the moving foot from hitting the opposite stationary one. Each opposite foot Blatherwick vs. Carey. being provided with one of these shoes, in turn tumbles out on this point of the shoe, and thus escapes the other, or does not interfere." The only questions made in the defense which I deem it necessary to consider, are: 1st. The construction to be given this patent, and, 2nd. Whether the defendants infringe. The proof shows, and it was admitted on the argument to be true, that horse-shoes, to prevent interfering, had been made and used long prior to the time when Blatherwick claims to have made this invention, where the inner fore-quarter was curved or bent much more sharply than the natural curve of the hoof, and the toe-calk placed upon this sharp curve or angle so that the bearing of the toe was upon this calk nearly in a line with the inside bar of the shoe. This is clearly shown by the testimony of John Palmer, A. W. Redner, Michael McNurney, John Trainor, Thomas Cody and others. Indeed, it may be taken as a proven and admitted fact in this case, that horse-shoes, for the purpose of of preventing interfering, had been made and used before the complainant entered the field, where an attempt, at least, had been made to change the bearing of the toe to a point inside of the natural toe or tip of the hoof. This inventor did more, and made a new or artificial toe inside of the natural one, by carrying the shoe almost at a right angle from the natural toe or point of the hoof to a point nearly as far inward, that is, toward the other foot, as the widest part of the hoof, and extending back from this point to the widest part of the foot, in nearly a straight line, so that the inner fore-quarter of the shoe was nearly a right angle rather than a curve, corresponding to the shape of the foot. The necessary effect of this shape is to make the angle of the shoe, as I have already said, to project beyond the wall of the hoof, and this projection forms the tumbling point, as Mr. Blatherwick vs. Carey. Powers calls it, or point which last leaves the ground in the act of stepping. In the light of the testimony as to the state of this art at the time Blatherwick made his invention, I have no doubt this projection beyond the wall of the hoof must be deemed the distinctive feature of his patent. And that he evidently intended this should be so, is shown by his drawing, Fig. 1, where the location of the nail head channel is such as clearly demonstrates that the corner or angle would project beyond the wall of the hoof. With this construction of the complainant's patent, it is quite evident that the defendants do not infringe, for their shoe, the complainant's Exhibit 1, has no projection beyond the wall of the hoof. It seems to me to be in all substantial respects like the shoe made and used by Palmer, Trainor and others, long prior to complainant's invention. It places the toe-calk inside the line of the point of the hoof, and thereby transfers the bearing to some extent from the toe, but it does not project or bear beyond the line of the hoof. The merits, if there are any, in the complainant's invention, consist, in iny estimation, according to the evidence as to the state of the art, in this projection beyond the hoof. It is alleged that the defendants called the form of shoe which they used, the "Blatherwick shoe," and it also appears that the defendants at one time held a license from the complainant; but this does not amount to an estoppel on the defendants to deny infringement, and only proves that, for a time at least, the defendants conceded to the complainant the broad claim now insisted on in this case, that the patent covers all shoes where the tumbling point is changed to a point inside the line of the natural toe. This is understood to be the claim of the complainant now as to the effect of his patent, which I have already said I cannot allow. Not being now acting under a license, defendants are not bound by any Shannon vs. Jones Stationery Co. implied admission from the fact of having once taken a license. I, therefore, conclude that the defendants do not by the use of the shoe shown in the proof to have been made by them, infringe complainant's patent, and this bill must be dismissed at complainant's cost. JAMES S. SHANNON vs. THE J. M. W. JONES STATIONERY COMPANY. CIRCUIT COURT-NORTHERN DISTRICT OF ILLINOIS-OCTOBER, 1881. IN EQUITY. 1. PATENTS-PAPER HOLDERS.-The Smith & Shannon patent for an improvement in paper holders, is valid. 2. The device of defendant, held, to be an infringement. Jesse Cox and Homer N. Hibbard, for complainant. N. C. Gridley, for defendant. BLODGETT, J.-This is a suit for injunction and damages for an alleged infringement by defendant, of patent No. 211,909, issued July 24, 1879, to Frederick W. Smith and James S. Shannon, and which is now held by complainant, for an "Improvement in Paper Holders." The defense set up is want of novelty and non-infringe ment. |