Eppinger v. Richey.

the tobacco of which it is composed, or to the novelty of the style of manufacture, but to the inherent advantages which it possesses in the particulars which have been mentioned.

The novelty of the invention was clearly proved. It manifestly differs from the ordinary spun or rolled plug totobacco in this, that, in such tobacco, the filler and binder are rolled together, while in the patented article the binder simply encircles the filler. "Twist," or "braid " tobacco was made in the same manner as the patented article is made, by encircling the sweetened filler with two separate wrappings of unsweetened tobacco, but twist tobacco is simply braided and subjected to lateral pressure. Each plug is a flat braid, into the interstices of which air freely enters, and, having a comparatively thin and flat surface, the plug cannot be made compact by endwise pressure. The shape and the method of theformation of the coil, which render endwise pressure practicable, and which enable the coil to be compactly compressed without injury to the strands of the filler, constitute the particulars in which the patented article differs from braid tobacco.

The important question which arises in the case is as to the patentability of the invention. A rope of strands of sweetened filler, inclosed in a binder, which in turn is enveloped in a wrapper, ante-dated the patent, and is disclaimed. Plug tobacco had always been coiled and braided in various forms and had been subjected to pressure. The peculiarity of the invention is in the form and shape of the coil. Can any particular method of coiling, although both endwise and sidewise pressure are thereby made available for the purpose of excluding air, and although the method enables the consumer to use the whole coil in its desired state of moisture, be the subject of a valid patent? The argument of the defendants' counsel is, that the combination of filler, binder and wrapper is old and is disclaimed, which is true; that subjecting a coiled rope of such tobacco to pressure is old and is disclaimed, which is true; that coiling or twisting a moist rope of tobacco has always been practised, which is, also, true; that the partic

Eppinger v. Richey.

ular form of the coil is a matter of fancy; and that the form of the coil cannot involve the exercise of the inventive faculty. This is the precise question which is at issue.

The article of plug tobacco has been long in use, and has been in constant demand. As it has been prepared for market, it has been liable to spoil in warm and damp weather, and to grow mouldy in any temperature. It is fair to presume that the ingenuity of tobacco manufacturers, and of tobacconists, has been exercised in an attempt to find a remedy for this liability to pecuniary loss. The evils were notorious, but no remedy was found until this invention was made. If the remedy consists in the shape of the coil, and if the particular twist of the coil requires no greater exercise of the inventive faculty than is involved in the shape of a bow into which a ribbon may be twisted, it is strange that an evil which had long existed had not previously been avoided. Two facts exist in this case. One is, that an important improvement has been attained. The second is, that the improvement is in a staple article, which has been manufactured in this country for a long series of years. Without the testimony of the patentee and the first manufacturer in regard to the number of experi ments which were required before the invention was hit upon, and in regard to the difficulty which was experienced in perfecting the manufacture, it is manifest, from the length of time during which tobacco has been manufactured, from the constant demand for it, and from the well-known evils to be overcome, that the inventive faculty must have been brought into exercise, or else that mechanical skill would long since have avoided any danger of fermentation or mould. The utility of the patented article has been evinced by its large sales, and by the unanimity with which rival tobacconists have commenced its manufacture. The inventor evidently gave to the public an article which it wanted, and which it had not previously known. Without giving to the general use of the invention, as a test of its patentability, any greater importance than the Supreme Court, in the case of Smith v. Goodyear Dental Vulcanite Co., (3 Otto, 486,) indicate should be

Neafie v. Cheesebrough.

given to this circumstance, I am of opinion, that the facts in the case fully establish the conclusions, (1,) that, however simple the change in the method of manufacture apparently may have been, yet it was a change which required invention for its accomplishment; and, (2,) that the improvement resulting from the changed method of manufacture has been so great, that the article which is produced is, within the meaning of the Patent Acts, a new and useful article of manufacture.

Let there be a decree for an injunction and an account.

Benjamin F. Lee, for the plaintiff.

Samuel J. Glassey, for the defendants.

An order of reference, made on consent, in an action at law, provided that the cause be referred to H. to hear and determine all the issues thereof, and that the report of the referee have the same effect as a judgment of the Court, and that, on filing such report with the clerk of the Court, judgment be entered in conformity therewith, "the same as if the cause had been tried before the Court." On the report, judgment was entered for the defendant, for costs. The plaintiff moved for a stay of proceedings, under § 987 of the Revised Statutes, with a view of applying to the Court to grant a new trial: Held, that the Court had no power to grant a new trial.

(Before BENEDICT, J., Eastern District of New York, September 11th, 1877.)

BENEDICT, J. This case comes before the Court upon a motion for a stay of proceedings, after judgment entered. The case, which is an action at law, was referred by consent, and has been heard and determined by the referee. Upon the referee's report, judgment has been entered in favor of the

Neafie v. Cheesebrough.

defendant, for $155 80, costs. The plaintiffs desire to apply to the Court to grant a new trial, and, for that purpose, now move for a stay of proceedings, under section 987 of the Revised Statutes. The defendant objects to the stay, upon the ground that the Court has no power to grant a new trial after judgment entered upon the report of a referee, made upon such a consent as was given in this case.

The objection of the defendant appears to be well taken. The consent under which the reference was ordered, and to which the order of reference conforms, provides, that the cause be referred to Henry E. Howland, to hear and determine all the issues thereof, and that the report of the referee have the same effect as a judgment of the Court. According to this consent and order, the decision of the referee, and not the decision of the judge, is to determine the judgment to be entered. That such a reference may be made has been expressly decided by the Supreme Court, (Heckers v. Fowler, 2 Wall., 123;) but I find no authority to grant a new trial, after judgment has been duly entered upon the report of a referee authorized to hear and determine the cause.

It is supposed by the counsel for the plaintiffs, that section 987 of the Revised Statutes confers upon the Court the power to grant a new trial after judgment, in all cases when the trial is by the Court, and he contends, that, inasmuch as, in this case, the consent and order of reference provide, that, on filing the report of the referee with the clerk of the Court, judgment shall be entered in conformity therewith," the same as if the cause had been tried before the Court," therefore, the power to grant a new trial after judgment exists here, by virtue of section 987. But, this provision in the consent and order merely relates to the action of the clerk in entering judgment as of course, upon the referee's report, without application to the Court. It does not change the character of the proceeding, nor make the trial other than a trial before a referee instead of the Court. It cannot have the effect to bring the case within the scope of section 987, for, plainly, there has been neither a verdict nor a finding of the Court upon the facts.

The Goulds Manufacturing Company v. Cowing.

My conclusion being that the Court has no power to grant a new trial, it follows that the stay asked for cannot be granted.

Augustus C. Fransioli, for the plaintiffs.

Frank E. Blackwell, for the defendant.

THE GOULDS MANUFACTURING COMPANY

V8.

JOHN P. COWING AND OTHERS.

IN EQUITY.

In Goulds M'f'g Co. v. Cowing, (12 Blatchf. C. C. R., 243,) it was held, that the invention covered by the plaintiff's patent was of an improvement in a pump, and that, as the plaintiff had failed to show the profits or damages arising to the defendants from the use of such improvement, it was entitled to only nominal damages. On further evidence being given, showing that, after the plaintiff's pump had been introduced into certain oil regions, other pumps could not be sold in those regions: Held, that such further evidence did not show that the plaintiff was entitled to other than nominal damages. (Before JOHNSON, J., Northern District of New York, September 14th, 1877.)

JOHNSON, J. This case comes up on exceptions, taken by the defendants, to the report of the master under the interlocutory decree, directing an account upon the infringement of the plaintiff's patent. This decree was made in March, 1874, Judge Woodruff presiding. Under it an account was taken before Mr. Pomeroy, acting as master. Upon his report exceptions were taken by the defendants, which were heard before Mr. Justice Hunt. The learned judge allowed the exceptions, and, in the first instance, ordered that the plaintiff was entitled only to nominal damages, but subsequently allowed the plaintiff a further opportunity to produce evidence. Upon the decision of the case, an elaborate opinion