Card v. Colby

• Citation: 64 F. 594
• Decision Date: 28 November 1894
• Docket Number: 184.
• Parties: CARD v. COLBY.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

64 F. 594

CARD v. COLBY.

No. 184.

United States Court of Appeals, Seventh Circuit.

November 28, 1894

Cyrus J. Wood (E. M. Marble, of counsel), for appellant.

Barton & Brown, for appellee.

Before WOODS and JENKINS, Circuit Judges, and BUNN, District Judge.

JENKINS Circuit Judge.

This is an appeal from an interlocutory decree passed on the 3d day of May, 1894, adjudging the validity of letters patent No 373,223, issued to Edward J. Colby, November 15, 1887, for a 'toy locomotive,' and restraining the appellant from making, using, or selling toy banks or coin receivers containing the invention described and set forth in such patent, or from otherwise infringing upon Mr. Colby's rights under the patent. Colby v. Card, 63 F. 462. The decree adjudged that the appellant had infringed in making, using, and selling devices for coin holders made under and in accordance with letters patent No. 449,280 issued to Henry M. Brigham, March 31, 1891. The controversy involves the merits of the Colby patent, and the proper construction of the first claim therein, and the question of infringement. The specification forming part of the letters patent states that Mr. Colby has invented a 'new and useful bank.' He says:

'My invention relates to toys for banks, paperweights, and the like, and has for its object to provide a bank which can be used as a toy to be drawn by a child, can be used as a paperweight, or can be used as a bank, the contents of which are adapted to open the bank when they reach a certain weight. These objects I accomplish by means of the mechanism illustrated in the accompanying drawings.'

The drawings represent a toy locomotive, and the patentee describes the use and operation of his invention as follows:

'The device is composed of two similar parts, which are brought together, and the locking cross rod is then placed in position with one end of its flange resting upon one side of the boiler, and its other end is upset, so as to securely fasten the parts together. In this position the smokestack and sand chest are firmly secured to the top of the boiler, so as to cover the aperture therein. The driving wheels may be either cast with the rest of the device, or they may be loose to rotate thereon. The money may now be introduced through the slit in the top of the cab, and when a sufficient quantity has been introduced to cause the weight thereof the force the spring in the forward end of the boiler, thus to depress the locking piston, the money contained in the cab will pass into the steam boiler, and the weight thereof will cause the lock piston to descend, so that the hook on the bar, K, is freed, and the smokestack and the sand chest may be removed, thus leaving an aperture in the boiler through which the coin may be extracted. As soon as this is done, the spring will restore the lock piston to its proper position, and if the piece, K, be again placed in position, the smokestack and sand chest will be locked to the boiler, as in the beginning.'

He further states:

'I have shown by improvement as applied to a locomotive but I have also applied it to other devices,-- as, for instance, fire engines, wagons, and the like. It will be readily seen that its application to toys other than locomotives will be perfectly easy.'

The claims of the patent are as follows:

'(1) A toy bank consisting of a hollow toy provided with a coin-receiving and coin-discharging aperture, a movable cover for the discharging aperture and a spring latch to secure the same from within; said spring latch being normally closed, but constructed to be opened by the weight of the coin within.

'(2) A toy bank consisting of a hollow locomotive provided with a coin-receiving aperture, a removable smokestack which covers the aperture through which the coin is removed, and a spring latch which is adapted to lock the smokestack in position, but, when depressed by the weight of the coin, permits it to be released and removed, so that the coin may be abstracted.

'(3) A toy bank consisting of a locomotive provided with a hollow boiler which serves as a coin receptacle, a removable smokestack which covers the aperture through which the coin is removed, and a spring latch which is adapted to lock the smokestack in position, but, when depressed by the weight of the coin permits it to be released and removed, so that the coin may be extracted.'

The first claim of the patent is alone involved in the contention here. The alleged infringing device is substantially a single tube having a fixed cover and a removable bottom, and provided with a slot or guide through which the coins are inserted. Attached to the removable bottom is a spiral spring upon which there is a cup-shaped piston. There is also a radially moving spring fixed near the end, which is secured in place, and dropped into a pocket on the inside of the cylinder, thereby preventing the bottom cover from being unscrewed. The cup-shaped follower is pressed towards the top of the cylinder by the spiral spring, but upon the insertion of the coins it is depressed until finally it moves over the radially moving spring, and presses it back out of the pocket in the cylinder, releasing the bottom cover so that it may be unscrewed, and the coins removed; in the language of the claim, 'the bottom being automatically released by the pressure of the coin when a predetermined number is inserted. ' The difference in operation between the two articles is well and succinctly stated by the learned judge whose decree is here under consideration:

'The pressure operating upon the latch in the case of the complainant's device, and necessary to overcome the resistance of the spring, is the weight of the coin; the pressure in the defendant's device is the weight of the coin, with such added force as is communicated to the column of the coin by the forced introduction of the last piece. In one, the operating force is weight, pure and simple; in the other, the operating force is weight added to the

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