"Last roll is nearer table than second roll. A ladle of glass is cast before each roll, and wire netting fed to the glass in advance of the first roll. Wire netting will be at top of sheet, and casting will cover it up. Will it make lappy glass?"

This last inquiry is to the same effect as the prior inquiry in reference to welding, and, like it, goes to the very point wherein the European theory was faulty. These conceptions of the inventions were followed by other sketches, explanations of his process to others, and actual reduction to practice within the six months following. Thus on a December stock sheet of his company Schmertz made a sketch between December 2d and 9th, which clearly discloses his device in the alternative form of introducing the web in advance of the leading roll and between the two. And on the January trial balance sheet of his firm he placed a sketch which showed the general form of apparatus disclosed in the preceding sketches, with the modification that in them the rolls were drawn over the glass by hand, while this last sketch showed a modification for use of machinery. It will therefore be seen that on the strength of the testimony alone, which was adversely taken in the Patent Office, the court was warranted in finding priority to Schmertz over Appert, and that the efficacy of that testimony as a basis of relief was not destroyed by the fact that the interests of Appert later ceased to be adverse.

But the further defense is made that the application for the patent in suit and the invention set forth therein were abandoned by their owners, so that no valid patents could be taken. The delay in question was from the date of Schmertz's death in October, 1898, until the fall of 1902, when his administrator began proceedings in revivor. That matter was heard by the late Judge Acheson, and evidently an order of revivor must have been made by him, although none can now be found, since in the opinion of Schmertz v. Appert, supra, we recited: "The cross-bill was duly revived in favor of his administrator." We see no reason why this patent should be declared void on the ground of abandonment. The cross-bill in the Circuit Court for a decree for the issue of a patent to Schmertz was a case of original equity jurisdiction. It was brought within two years from the decision of the Court of Appeals of the District of Columbia, and did not involve the fatal delay of Gandy v. Marble, 122 U. S. 432, 7 Sup. Ct. 1290, 30 L. Ed. 1223. The action once begun became subject to the practice and proceedings incident to equity. It will be noted that the jurisdiction of the Circuit Court was originally invoked on Appert's bill charging infringement, and the litigants remained hostile until March 27, 1903. From the death of Schmertz, the Appert interest, the complainant in the original suit, and the respondent in the cross-bill-and they were the only parties in interest, and the judgment in the case could not bind third parties. Butler v. Shaw (C. C.) 21 Fed. 321-took no step to dismiss the cross-bill or to prosecute the suit. There was no bad faith in the delay. Moreover, there is no provision in Rev. St. § 4915 (U. S. Comp. St. 1961, p. 3392), in reference to delay in procedure, and that in Rev. St. § 4894 (U. S. Comp. St. 1901, p. 3384), is a delay "after any action therein, of which notice shall have been given to the applicant." Of such ac

tion, or of such notice, there was none in this case. When, therefore, in the fall of 1902, the Schmertz interest began its proceeding to revive, Appert was in no position to charge delay to the other side. They were the first to move, and, as between the litigants, the court was certainly justified in reviving the cross-bill in favor of Schmertz's administrator. Delay after suit is begun, which is acquiesced in by both parties, is quite different from delay by one party before suit brought. Moreover, a revivor is not a new suit, but a mere continuation of the original suit, and ordinarily a matter of right. Fitzpatrick v. Domingo, 14 Fed. 216; Hone v. Dillon (C. C.) 29 Fed. 465; Clarke v. Matthewson, 12 Pet. 164, 9 L. Ed. 1041. In addition thereto, the delay can fairly be attributed to other causes than to an intent to abandon. Schmertz left a widow and minor children. The difficulties incident to a prosecution of the claims of Schmertz were such as might well lead to delay. The widow was advised by her relatives and friends not to undertake further prosecution of the proceeding; the opposing interest was a powerful concern, and had enlisted the service of able counsel; and yet, during all that time, she certainly did no positive thing, or did her adversaries put her in a position where she was required to do anything, to evidence her intent. Moreover and this fact is not without significance-no rights of third parties intervened. As matters stood, Appert had prevailed in the interference, and held his patent with its claims covering Schmertz's process, so that no one could practice it meanwhile. It has not been shown that the rights of any third parties intervened during this period of mutual inaction. We are therefore of opinion this defense cannot prevail.

In conclusion, we may say that careful consideration of this case has impressed us with the novelty and value of Schmertz's invention. It opened up a new and broad field of activity. It brought success out of 50 years of futile effort and recognized failure. We fulfill the intent and spirit of the patent laws in affording patent protection to this, in our judgment, highly meritorious invention.

MISSISSIPPI WIRE-GLASS CO. v. PITTSBURGH PLATE-GLASS CO. (Circuit Court, W. D. Pennsylvania. February 5, 1909.)

No. 25.

PATENTS (§ 328*)-NOVELTY-MACHINE AND METHOD FOR MAKING WIRE-GLASS. The Baldwin patents, No. 800.131, for a machine for making wire-glass, and No. 847,637, for a method of making wire-glass, are void for lack of patentable novelty, in view of the prior art.

[Ed. Note. For other cases, see Patents, Dec. Dig. § 328.*]

In Equity.

Kerr, Page, Cooper & Hayward (Thomas B. Kerr, Thomas W. Bakewell, and Drury W. Cooper, of counsel), for complainant.

Christy & Christy (Bayard H. Christy, George H. Christy, and Frederick P. Fish, of counsel), for defendant.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

BUFFINGTON, Circuit Judge. In this case the complainant charges infringement of letters patent No. 800,131, granted September 26, 1905, to Arthur J. Baldwin, for a machine for making wire-glass, and patent No. 847,637, granted March 19, 1907, for a method of making wire-glass. The machine patent is for a structure so near akin to the respondent's table-roll machine, which we have considered in an opinion filed herewith, in a case between these same parties, that, if we are correct in our estimate of that machine, this patent is void for lack of patentable novelty.

As to the method patent, we are clear that, in view of the patents of Schmertz, Appert, and Shuman, it lacks patentable novelty. Let a decree be drawn accordingly dismissing the bill.

WESTINGHOUSE ELECTRIC & MFG. CO. v. ALLIS-CHALMERS CO. et al.

(Circuit Court, D. New Jersey. February 25, 1909.)

PATENTS (§ 259*) — INFRINGEMENT BY CORPORATION-CONTRIBUTORY INFRINGE

MENT.

The fact alone that a majority of the stock of a corporation charged with infringement of a patent is owned by another corporation, which exercises such control only as is incident to such stock ownership by the election of its own officers as directors, etc., does not render the latter corporation chargeable as a contributory infringer.

[Ed. Note. For other cases, see Patents, Cent. Dig. § 400; Dec. Dig. 259.*

Contributory infringement of patents, see notes to Edison Electric Light Co. v. Peninsular Light, Power & Heat Co., 43 C. C. A. 485; Eolian Co. v. Harry H. Juelg Co., 86 C. C. A. 206.]

In Equity. On final hearing.

Kerr, Page, Cooper & Hayward, for complainant.

Clifton V. Edwards and Thomas F. Sheridan, for defendant AllisChalmers Company.

LANNING, District Judge. This is a patent suit for injunction and accounting because of alleged infringement. The complainant owns patent No. 606,015, for an improvement in systems of electrical distribution and regulation, granted to it June 21, 1898, upon the assignment of the inventor, Benjamin G. Lamme. The two defendants named in the bill of complaint are the Allis-Chalmers Company and the Bullock Electric Manufacturing Company. The latter is an Ohio corporation, and has neither been served with process nor appeared in the suit. The case is therefore prosecuted against the Allis-Chalmers Company only.

The bill charges, and the answer of the Allis-Chalmers Company admits, that in March, 1904, that company became the owner of a majority of the capital stock of the Bullock Electric Manufacturing Company. It also charges that some of the directors of the Allis

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexe

Chalmers. Company are directors of the Bullock Company, that the Allis-Chalmers Company controls the acts of the Bullock Company, and that the Allis-Chalmers Company advertises that its electrical department comprises the plant of, and that it will continue to manufacture the product of, the Bullock Company. The answer of the Allis-Chalmers Company admits that some of its directors are directors of the Bullock Company, that it has advertised that the business of the Bullock Company is operated by the Bullock Company as the electrical department of the Allis-Chalmers Company's business, and that it will continue to manufacture the product of the Bullock Company; but it denies that it controls the Bullock Company "save as it is lawfully entitled thereto as the holder of such majority of stock."

The only infringement referred to in the complainant's briefs or proofs is the one founded on a sale by the Bullock Company to the Merchants' Heat & Light Company of Indianapolis, in April, 1904, of certain machinery said to embody the invention of the complainant's patent.

The ownership of a majority of the capital stock of the Bullock Company by the Allis-Chalmers Company, the fact that some persons -how many does not appear-are members of the two boards of directors, and the fact that the Allis-Chalmers Company advertises that its electrical department is operated by, and that it will continue to manufacture the product of, the Bullock Company, taken with the averment that it does not in any wise control the Bullock Company, except as it lawfully may as a majority stockholder thereof, are not admissions that the Allis-Chalmers Company controls the Bullock Company in any such manner as to justify a conclusion that it is guilty either of direct or contributory infringement. The admissions of the answer are the only proofs on this point. Where individuals, who are officers or stockholders of a corporation, are made codefendants with their corporation in a suit for the infringement of a patent, a decree for injunction and an accounting will not issue against them individually, where the corporation is solvent and they have not as individuals violated, or are not threatening to violate, the complainant's patent rights. Howard v. St. Paul Plow Works (C. C.) 35 Fed. 743. In Ambler v. Choteau, 107 U. S. 586, 1 Sup. Ct. 556, 27 L. Ed. 322, Mr. Chief Justice Waite said:

"If an account of profits is wanted, and an injunction against the further use of the patented inventions under the transfers from Whipple & Dickerson, then the suit should have been against the Missouri corporation in its corporate capacity, and not against a part only of its stockholders and directors individually."

To the same effect are Mergenthaler Linotype Co. v. Ridder (C. C.) 65 Fed. 854, and Bowers v. Atlantic G. & P. Co. (C. C.) 104 Fed. 888. In the application of the rule of law on this point, I can see no reason for distinguishing between corporate and individual stockholders. If the admissions of the Allis-Chalmers Company's answer, or the proofs submitted, were sufficient to show that company to be a joint tort-feasor with the Bullock Company, it might be necessary to consider other questions presented by the record. On the present proofs, I think the complainant has failed to show, even on the assumption

that the patent in suit is valid and that it has been infringed, any liability on the part of the Allis-Chalmers Company.

The bill will therefore be dismissed, with costs.

In re ALDRIDGE.

(District Court, N. D. New York. February 26, 1909.)

1. BANKRUPTCY (§ 407*)-DISCHARGE-GROUNDS FOR REFUSAL-DEBTS CREATED BY FALSE STATEMENTS.

To debar a bankrupt from a discharge under Bankr. Act July 1, 1898, c. 541, § 14b (3), 30 Stat. 550 (U. S. Comp. St. 1901, p. 3427), as amended by Act Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 (U. S. Comp. St. Supp. 1907, p. 1026), on the ground that he "obtained property on credit from any person upon a materially false statement in writing made to such person for the purpose of obtaining such property on credit," it is not necessary that the property should have been obtained for himself or for his benefit, but if it was obtained on his credit as principal or surety, and such credit was induced by his materially false statement in writing made for the purpose, the case is within the statute.

[Ed. Note. For other cases, see Bankruptcy, Dec. Dig. § 407.*]

2 BANKRUPTCY (§ 407*)-DISCHARGE-GROUNDS For REFUSAL-DEBTS CREATED BY FALSE STATEMENTS.

A statement in writing by means of which a bankrupt obtained property on credit, in order to be within Bankr. Act July 1, 1898, c. 541, § 14b (3), 30 Stat. 550 (U. S. Comp. St. 1901, p. 3427), as amended by Act Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 (U. S. Comp. St. Supp. 1907, p. 1026), which debars him from a discharge if he obtained property on credit by means of a materially false statement "made for the purpose of obtaining such property on credit," need not necessarily have been written nor signed by the bankrupt himself, nor by one who knew it to be false, but if the bankrupt obtained such statement from another with the design of so using it, and, knowing it to be materially false, used it for the purpose and with the effect of obtaining the property on credit, he is within the statute, although the statement may have been made and signed in good faith by one who believed it to be true.

[Ed. Note. For other cases, see Bankruptcy, Dec. Dig. § 407.*] In Bankruptcy. Application by objecting creditors for an order overruling the exceptions filed by the bankrupt to the report and findings of Wm. P. Badger, Esq., referee in bankruptcy, and which recommends that a discharge be denied, and denying a discharge to the above-named bankrupt, Millard F. Aldridge.

Seth S. Allen, for objecting creditors.

S. L. Wheeler, for bankrupt.

RAY, District Judge. The specifications of objection to a discharge of the bankrupt must be regarded as sufficient. They were neither demurred to as insufficient, nor was any motion made for an order requiring them to be made more definite and certain. Rule 12 of this court requires that the specifications of objection, if deemed insufficient or uncertain, shall be questioned and their sufficiency determined. by motion or demurrer, "in default whereof such specifications shall be deemed sufficient to present the questions suggested thereby." This

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes