an obvious expedient, which it involved no invention to supply; but which is also found in the Hunter (1888).

Conceding, however, that the exact combination described in the patent is not anticipated in any of the references so given, and assuming that it would be valid if original with the patentee, it is clearly shown that he was not the real inventor. The fact is that early in 1878 Mr. Walker, the president of the defendant company, who was then in the grocery business at Pottsville, Pa., devised and installed in his store a tilting bin, of which the Bacon is an exact duplicate and reproduction. It was narrower at the bottom than the top, was pivoted at the front lower edge of the casing, and had a cleat or stop to engage the back and limit the forward swing. In March, 1878, Mr. Walker made application for a patent, and

the character of his device is not only established by the description there given, but by the drawings which accompanied it. The model which was required, by the rules of the Patent Office which then prevailed, is also produced, and shows the same construction. This is evidence over which there can be no controversy, and the only question is as to its effect. A distinction is sought to be made with regard to this bin, because it was pivoted on a rounded edge of the casing, which fitted into a groove on the bottom, on which the bin rocked. But this is not material. That was the construction of the defendants' bin in the Brown and Krauss Case, 110 Fed. 649, and yet it was not regarded as sufficient to distinguish it from the patent there in suit, which called for a pivoting at the front edge of the casing. It is also said that there was no stop or cleat to prevent the bin from falling forward. But, however true this may have been of those which were actually installed in Mr. Walker's store, it cannot be said of the invention as applied for, where this feature is clearly shown.

It appears, however, that the Walker application was unsuccessful, a patent being refused by the examiner, and the attempt is thereupon made to have it discarded as an unsuccessful and abandoned experiment. Undoubtedly a rejected application is no bar to a subsequent patent to another for the same device. Corn Planter Patent, 23 Wall. 181, 211, 23 L. Ed. 161. But it does have a bearing on the question of prior invention or discovery, where that is raised. Westinghouse v. Chartiers Valley Gas Co. (C. C.) 43 Fed. 582. It is true that, as stated by Mr. Justice Bradley in the Corn Planter Patent:

"If, upon the whole of the evidence, it appears that the alleged prior invention or discovery was only an experiment and was never perfected or brought into actual use, but was abandoned and never revived by the alleged inventor, the mere fact of having unsuccessfully applied for a patent therefor cannot take the case out of the category of unsuccessful experiments."

But this is not to be misunderstood. It does not follow, because an application has been rejected, that the invention stands as an abandoned experiment. The application may not suffice to rescue it, if that is its real condition, but its rejection does not necessarily

give it that character. If the invention has advanced beyond the experimental stage, having been completed and put into operative shape, and particularly if it has gone into practical and successful use, the mere fact that an application for a patent has not met with favor at the hands of the Patent Office does not condemn or dispose of it as an invention; and that is the situation here. As already stated, Mr. Walker, prior to his application, had several of these bins constructed and installed in his store at Pottsville, where they were in actual and successful use for upwards of a year, until he gave up his business and removed to Philadelphia. While so in use, moreover, they were seen by one W. H. Douty, who was so pleased with them that, with the permission of Mr. Walker, and upon the understanding that a royalty should be paid if the patent which had been applied for was granted, he had similar bins constructed and set up in the store of Douty & Purcell at Shamokin. When the present controversy arose, these bins were looked up, and one of them was found in its original position on the premises, which had meanwhile been turned into a saloon, still in use, under the bar or counter, as a receptacle for crackers. This bin was produced and exhibited in court at the argument, and bears out all that is claimed for it, except, possibly, in the matter of a stop or cleat, which is not material. It thus appears that the ideas embodied by Walker in his application were not experimental, but represented a complete, practical, and useful device, fully as much so as that of Bacon which duplicates it, and equally worthy, it may be added, of a patent. It was not so considered, it is true, by the patent examiner, the principle involved being held to have been already appropriated. But that does not affect the completeness or the character of the device, whereby, whether patented or not, Walker, and not Bacon, is shown to have been the real inventor. No doubt, after the rejection of his application, he relinquished his proprietary rights by not only himself making use of this style of bin in his business, but by permitting it to be adopted and used by others for at long term of years. But that did not leave it open to be appropriated and patented by a third party, however independently he may have conceived and worked out the same idea. It was thenceforth public property, which any one could make use of without question. Bacon invented nothing new, therefore, and his patent is worthless. Whatever merit there is in the bin which is there shown, so far as this record goes, it was the conception of Walker, against whom it is now set up, who reduced it to practice, but abandoned it as a patentable invention upon the adverse action of the Patent Office. Complainants' patent being invalid, the question of infringement is not important. It will not be out of course, however, to observe that, to say the least, it is doubtful. On the strength of the defendants' catalogue, I have assumed above that they are making a bin which is modeled on the lines of the earlier (1895) Walker pat

A bin of that character is there shown, which, if the Bacon patent were valid, would undoubtedly infringe it. But there is no proof of manufacture outside of the catalogue, and that hardly comes up to what is called for. With respect to the other style of

bin, manufactured under the Walker (1898), it may be that, disregarding the swell front, and measuring strictly at top and bottom, it is wider at the one than the other, thus apparently fulfilling the terms of the patent in controversy. But the outward bulging of the front is an essential feature which enters into the efficiency of the device, bearing directly on the counterbalancing of the bin and its stability when in open or closed position, and cannot be disregarded. Being cast advisedly in that shape for a purpose, it must be taken according to its general effect, by which it clearly broadens downwards and not up, the opposite of the Bacon, on which it does not therefore infringe. As already stated, however, the question of infringement is not material. Contenting myself with these observations until it becomes so, I will therefore make no definite decision with regard to it. It is enough to know that the patent cannot be sustained.

Let a decree be drawn dismissing the bill because of the invalidity of the patent, with costs.

MISSISSIPPI GLASS CO. v. FRANZEN.

(Circuit Court, W. D. Pennsylvania. July 3, 1905.)

No. 5.

PATENTS-ASSIGNMENT-INVENTION OF EMPLOYÉ.

Where a patent was applied for after the termination of an employ. ment under a contract providing that the employé would execute any and all assignments in writing which might be deemed by the employer proper and necessary to transfer and vest in it the entire right, title, and interest to all inventions and discoveries made by the employé during the term of his employment, the patent vested in the employé, and the burden was on the employer to show by the weight of proof that the invention covered thereby was made by the employé during his employment. [Ed. Note.-For cases in point, see vol. 38, Cent. Dig. Patents, § 125.] Arthur J. Baldwin and Wm. L. Pierce, for complainant. Christy & Christy, for respondent.

BUFFINGTON, District Judge. This is a bill in equity filed by the Mississippi Glass Company, a corporation of Missouri, against Nicklas Franzen, a citizen of Pennsylvania, to compel him to assign, in pursuance of a contract made by him, dated February 4, 1901, patent No. 741,125, issued October 13, 1903, covering a certain process for making wire glass, and an apparatus application for using said process, which is still pending. This contract provided that Franzen, who was employed by the complainant as an assistant superintendent, "will when required, make and execute any and all assignments in writing which may be deemed by the employer proper or necessary to transfer and vest in the employer the entire right, title and interest in all inventions and discoveries made by the employed [Franzen] during the term of his employment." Franzen terminated his employment with the company May, 1903. On June 17th following he applied for the patent in question, and

the same was granted October 13th following. We assume for present purposes, but without deciding that question, that this unilateral contract, wherein it is agreed that "no breach by the employer of any contract of employment or any other contract, and no act or omission by the employer, shall be deemed or considered an excuse or justification for any violation of any of the obligations herein contained on the part of the employee," will be enforced by a court of equity. It is clear, however, that this patent, being applied for subsequent to the termination of the employment, vests the ownership thereof in Franzen, the patentee, and the burden is upon the complainant to show by the weight of the proof that the invention covered thereby was made by Franzen during his employment. This burden, we think, the complainant has failed to meet. No witness affirmatively proves Franzen did invent the device during the term of his employment, and the latter, when called by the complainant as a witness, fixes the time as antedating such employment. The testimony introduced by complainant is merely negative, and there is an absence of positive, affirmative testimony which establishes the making of this invention as occurring during Franzen's employment. In view of the lack of such proof, we are of opinion that he cannot be deprived of that property which became his by the issue of the patent. Moreover, there is testimony corroborating Franzen in his contention that the invention was made at an earlier period than that of his employment by complainant. Upon full consideration, we are of opinion this bill should be dismissed, and it is so ordered.

THE ASBURY PARK.

(District Court, E. D. New York. June 7, 1905.)

1. SHIPPING-INJURY TO VESSEL AT DOCK FROM SWELL-NEGLIGENT NAVIGATION OF STEAMER.

A large steamer, proceeding in New York Harbor at such speed that her swell caused the sinking of a schooner a mile away, by striking her against a dock at which she was discharging, held liable for the damage caused; it being shown that, either from her construction or the speed with which she was customarily navigated, she was known to be peculiarly liable to cause swells dangerous to other shipping, which required the exercise of unusual care in her navigation.

[Ed. Note. For cases in point, see vol. 44, Cent. Dig. Shipping, § 345.] 2. SAME-LIABILITY FOR Damages.

It is not a defense to a suit to recover for an injury to a vessel caused by the swell of a passing steamer that other vessels were not injured, or that the one injured might have prevented the injury by taking unusual precautions.

In Admiralty.

Alexander & Ash, for libelant.

De Forest Bros. (R. D. Benedict, of counsel), for claimant.

THOMAS, District Judge. The schooner Annie E. Webb on June 24th, at 12:30 p. m., was properly moored on the south side of

the dock at the foot of Bay Ridge avenue, Brooklyn. The tide was flood, and the weather clear. The pier is about 700 feet long, and is built on piles, which are about 10 feet apart. All the timbers laid on or between the piles are so arranged that their edges do not project beyond the face thereof. The schooner, with a cargo of brick partially discharged at the time of the accident about to be stated, was entirely below the top stringers, and carried fore and aft fenders. About 1:30 p. m. the discharge of her cargo began, and was in progress when the steamship Asbury Park passed outside of the red buoy off Owl's Head, at a distance of about 1 mile from the dock; and her swells caused the port side of the schooner to strike against the dock, whereby two of her planks were broken in. She sank shortly thereafter. The steamer left Rector street at 3:46; her running time to Owl's Head was 161⁄2 minutes; thence to Craven Shoals 121⁄2 minutes; and she arrived at the Highlands at 4:54, thus making the distance of about 201⁄2 miles in an hour and 8 minutes. Her horse power is about 6,000; her length 306, and her beam 51, feet. The steamer was making her usual speed under the conditions existing. While other passing vessels made swells that reached the dock, she caused larger swells. Was she culpably negligent? Her navigators did not insure the safety of other vessels, but were bound to exercise good business prudence, lest her swells cause injury to them. Should they, in the exercise of requisite care, have known that her swells would reach a vessel a mile away, and cause injury? Prior to this her swells are not shown to have caused injury to vessels at this dock, although there was evidence of subsequent injury to a vessel at the same dock from the same cause. Accidents arise from the presence of favoring conditions. A negligent act may be repeated often, and yet meet with no object so situated as to be harmed thereby. It is not always possible to point out why one ship escapes injury from given forces, while another does not. The vessel's shape, the nature of her construction, her strength, her cargo, her relation to the dock, her moorings, among other things, would qualify the effect of swells upon her; and, moreover, apprehension of danger from such swells, and consequent safeguarding of the vessel against them, would avoid or modify injurious effects. Indeed, the government patrol ship Argus, as at the time in question, often trailed from the end of the dock by a line, with some special reference to harm that the Asbury Park, in passing, might cause. Swells of the size and violence disclosed by the evidence, that necessitate such practical care and foresight on the part of vessels using a dock, show some usurpation of the water way by the vessel that causes them. The owners and navigators of the Asbury Park had full opportunity to observe the size, progress, and range of her waves, and to judge of the force of their contact with vessels at either side of a water way. Her capacity for harm, so familiar to other navigators, should not have eluded the notice of her owners or pilot. In the exercise of reasonable care, they should have known what consequences would result naturally from her customary navigation. It often happens that the restraint of the law