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July 31, 1934

BUONO et al.

The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

The three above-entitled actions were by stipulation consolidated and tried together.

The actions are brought for relief by injunction, accounting and damages for the alleged infringement of claims 5 and 6 of patent No. 1,926,644, issued by the United States Patent Office to Julius Buono and Mario Buono, for sewing machine, granted September 12, 1933, on application serial No. 569,234, filed October 16, 1931, and of all the claims of patent No. 1,926,761, issued by the United States Patent Office to Julius Buono and Mario Buono, for stitched fabric article, granted September 12, 1933, on application serial No. 657,522, filed February 20, 1933, being a continuation of application serial No. 569,234, October 16, 1931.

 The defenses of invalidity and noninfringement were interposed by the several defendants.

 The patents in suit are owned by the plaintiffs Julius Buono and Mario Buono, and the plaintiff U.S. Blind Stitch Machine Corporation is the sole licensee of such owners.

 Before proceeding to consider the questions of validity or infringement it will be well to dispose of two other defenses.

 The defense of unclean hands, based on a failure to mark the country of origin on machines manufactured in Germany, before the patent was granted, is not sustained. The failure to obey some customs law with reference to machines not manufactured under the patent, but before the patent ever issued, could in no way have injured these defendants, nor is such action in any way connected with the matters here in issue. In fact, Exhibit G, referred to, does have marked on it the word "Germany" as the country of manufacture.

 The fact that the word "patented" may have appeared on one machine manufactured before the patent was granted does not of itself show an act out of accord with good conscience; nor was there any evidence of any injury to or misleading of the defendants thereby.

 The putting on of the notice of patenting may be ground for penalty, but it is not ground in a private litigation.

 Furthermore, the defense of unclean hands has not been pleaded, and therefore cannot be urged.

 The defense of nonjoint invention has not been pleaded, and therefore cannot be raised. Walker on Patents (6th Ed.) § 640; Hopkins on Patents, vol. 1, p. 431.

 This objection was made by counsel for plaintiff on the trial, and no request was made by the counsel for defendants on the trial for leave to amend. The motion now made for leave to amend comes too late, as in districts like this, overburdened with work, a suit should be tried once. The granting of this motion would necessitate the reopening of the trial to allow plaintiff to at least call the other individual plaintiff.

 The motion is denied for the reasons stated, and also because the evidence does not warrant the granting of the amendment to conform to the proof.

 In any event, I am satisfied from the evidence that both of the individual plaintiffs did contribute their ideas, and one did the mechanical work, and I can find nothing disingenuous or calculated to mislead the defendants in the actions of the individual plaintiffs. Butler v. Bainbridge (C.C.) 29 F. 142; Consolidated Bunging Apparatus Co. v. Woerle (C.C.) 29 F. 449; Cheshire v. Cox Multi-Mailer Co. (C.C.A.) 229 F. 415; Kane v. Steinmetz, 52 App. D.C. 279, 285 F. 1013, 1014.

 The suggestion by defendants that joint invention of patent No. 1,926,761 was impossible is not convincing, as I see no reason why this could not be a joint idea, as it is for a combination involving the following ideas: Using interlaced chain loops, having these loops overlap the edge of the hem, and causing some of these loops to extend through and through the base layer.

 Both of the patents in suit were issued on the same day, September 12, 1933; patent No. 1,926,761 being issued upon an application which was a continuation of the application for No. 1,926,644, therefore both patents in suit are to be considered as a single patent. Benjamin Electric Manufacturing Co. v. Dale Co. (C.C.A.) 158 F. 617.

 It is stipulated: "That American Blind Stitch Machine Company is a corporation organized and existing under the laws of the State of New York, is the manufacturer of the sewing machines, the use of which by the three defendants is the basis of the charge of infringement; and that the American Blind Stitch Machine Company is assuming the entire defense and is in full control thereof."

 Patent No. 1,926,644 is for an improvement upon that type of blind stitch sewing machine which was originally devised by Dearborn, who is the inventor associated with American Blind Stitch Machine Company.

 As to patent No. 1,926,644.

 In the machine of the patent in suit No. 1,926,644, there are two gears that run in mesh; a small gear mounted on the main shaft, which drives a larger gear, of two-to-one ratio, and that larger gear carries an eccentric. That eccentric causes a rocking action of a connection through a link on the push rod, which presses against the end of the work table pushing it down. A spring tends to hold the work table in against that rod so that the two-to-one action thus remains down two stitches and is pushed up for one. The work table is supported on two bearings so that it can be pivoted, the bender is separate on a rod, and rotated for each stitch. The rib or member which forms the bight in the cloth is mounted upon the work table. If the horizontal part of the table is depressed, it carries the rib along with it. The work table is pivoted so as to get a rocking movement, and this is accomplished by a cam or eccentric motion which is operated by reduction gearing from the main shaft.

 This is exemplified in the following enumerated figures of the said patent in suit.

 Fig. 1 shows the work support 4, which is specifically referred to as the work holder or the work support (page 2, lines 17-19).

 Fig. 10 and Fig. 11 show the member 22, which is referred to as a rib (page 1, lines 107-109).

 This rib forms the bight or node in that portion of the work in which the stitch is to be formed. This node or bight is formed in the edge of the piece or pieces of material which is generally supported upon the member 4.

 Figs. 12 and 13 show the rib 22 mounted upon a rock shaft 31.

 Fig. 7 shows a lever 28, by means of which the rock shaft 31 is given is rocking movement.The lever 28 is integral with an eccentric strap 27, and this strap is operated by means of an eccentric 26a which is upon the main shaft.

 In Fig. 4, the work support 4 is shown mounted upon a shaft 5, and automatic mechanism is shown whereby the work support 4 is automatically turned at predetermined intervals in the counter clockwise direction in order to depress the top surface of said work holder 4.

 Fig. 3 and Fig. 7 show a suitable eccentric which actuates the arms 34 and 35, and in Fig. 7 the said arms are shown as connected by means of a pin 41, to a link 42, said link 42 being pivotally mounted at 45 to adjusting means, and at 43 pivotally connected to a horizontally movable rod 44, which is also shown in Fig. 8, and as to shown when the rod 44 is moved to the right, it pushes against the depending portion of the work holder 4, so as to depress the work supporting surface of the work holder 4.

 Fig. 7 shows a large gear 39, by which the eccentric, which periodically turns the work holder 4, is driven, and this gear turns once for every two complete revolutions of the main shaft 1, but any other suitable ratio can be provided. Fig. 10 and Fig. 11 illustrate the skip stitch which is produced as the result of the described operation.

 In turning the work holder 4 about the shaft 5, the rib 22 and its shaft 31 are moved in unison with the work holder 4, because the shaft 31 is mounted in bearings which are connected to the work support 4.

 Therefore, the turning of the work support 4 does not change the relative distance between the top supporting surface of the work support 4, and the top surface of the rib 22.

 Fig. 10 shows that when the supporting surface of the member 4 is in its upper position, the curved needle passes through all the layers of the fabric.

 Fig. 11 shows that when the top surface of the work holder 4 is depressed, by means of the pushing movement of the rod 44, which is shown in Fig. 7 and Fig. 8, the needle passes through the upper layer or layers of the material, and in this stroke the needle skips or misses the base layer of the fabric.

 Figs. 14-19 illustrate the sewing of a sheet of material having a hem which is provided with an inturned edge. In Fig. 15 are shown the stitches 10a which pass through all three layers of the fabric, and in Fig. 16 are shown the stitches 11a which pass through the two upper layers of the material, skipping the base layer A.

 Fig. 19 shows that the periodic turning of the work holder 4 causes the stitches 10a to show loops which are spaced from each other so as to simulate the effect of hand sewing.

 Fig. 15 shows the loops which are slightly spaced from the inturned edge of the hem.

 As to patent No. 1,926,761.

 No separate discussion of patent No. 1,926,761, for stitched fabric article, in suit, is necessary at this time as the drawings of this patent are duplicates of Figs. 14-19 of the other patent in suit, No. 1,926,644.

 The history of the development of this art shows that the patentee of the patents in suit accomplished what others for a long time had sought without success, and this is strong evidence of their patentability. Hookless Fastener Co. v. G.E. Prentice Mfg. Co. (C.C.A.) 68 F.2d 940, 941.

 From the time of the Dearborn United States patent No. 679,553, issued July 30, 1901, it was known that the work support could be tilted by hand, in order to depress the top surface thereof, to introduce or remove the work, and at no other time; but no skip stitch was produced.

 About thirty years elapsed between the issue of the Dearborn patent, No. 679,553, and the filing date of the application for United ...

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