#### KOHLER et al. v. GEORGE WORTHINGTON CO. et

(Circuit Court, N. D. Ohio. E. D.

November 6, 1896.)

1, Patents — Subsequent Issue — Preso motion ox? Nonxneeinsement/

The granting of a subsequent patent relating to the same art raises a presumption that the device thereof does not infringe a prior patent.

2. Same — Currycombs.

The Plant patent No. 220,986 for an improvement in exirryeombs *held*not infringed by a currycomb made according to the Du Shane patent No. 407,313.-

*845This was a suit in equity by F. E. Kohler and others against the George Worthington Oompany and others for alleged infringement of a paient for a currycomb.

Charles R. Miller, for complainants.

Wm. 11. Doolittle, for defendants.

KICKS, District Judge.

The complainants bring this snit on letters patent No. 220,980, issued October 28, 1879, to Paschal Want, for an improvement in currycombs. Complainant alleges that it is the owner of said paient, that the defendants are infringing the same, and it prays for an account and a perpetual injunction. The defendants, in their answer, claim that they are the assignees of Jamas Du Shane, of South Rend, Ind., to whom a paient was issued on July 10, 1889 (No. 407,313). It appears from (he pleadings and testimony that nearly 13 years intervened between the grant of the* Want pa'tent and the commencement of this suit. The defendants in their answer allege that no currycombs were in fact ever made under complainant's patent, and that they have no plant or establishment for the manufacture and sale of such currycombs. The complainant’s own expert admits that he has never seen a comb made as shown and described in said patent. The defendants’ expert says: “I hare never seen any of the Want currycombs upon the market." The definid ants, in their answer, aver that the alleged improvement, of (he complainant “hath newer been applied to any practical use by the patentee or his alleged assignor, and that currycombs embodying the said alleged improvement are not in the market, nor to be obtained: and that said alleged letters patent have not been acquiesced in by (In' public *or*by the trade, because the said improvements are of no value."

The defendants are not manufacturers, but are venders and dealers-in hardware supplies, and in this line of business deal in currycombs made under the Dn Hhane patent by the Spring Currycomb Oompany. of South Rend, Ind. It is a. little significant that no combs were made under the complainant’s patent for 13 years, and that this suit was brought to interfere with the sale of combs made by a responsible manufacturing concern. The infringement ought, to be very clear, and the rights of the complainant made very plain, before the patent should be sustained or an injunction be allowed.

I have examined the briefs of counsel, and, not deeming it necessary to pass upon the question of the validity of the complainant’s patent, I go at once to the question of infringement, because I think upon this point the complainant has failed wholly to make out its case. The very respects in which, by its specifications, its exhibits, and the opinion of its expert, its paient is deemed to he valuable,, are wholly wanting in the defendants’ device. The complainant’s’ comb, it is said, was invented and constructed and sold in the spirit of humanity, to prevent the skin of animals being broken and bruis ed, or the animals roughly treated, when their hair and skin wag he*846ing combed. All this is accomplished by making the comb flexible, so as to yield to the lumps and hollows of the animal’s body and hide. In these respects the defendants’ comb is entirely different. It is more rigid, constructed more in the nature of the currycomb generally in use, and could be used in the Very inhuman and cruel respects referred to by the .complainant. The complainant’s patent was granted in 1879. The patent which it is claimed infringes complainant’s patent was granted in 1889. The patent office had before it the complainant’s patent and all other patents showing the state of the art when the Du Shane patent was granted. The presumption of noninfringement referred to by the circuit court in the case of Ney Manuf’g Co. v. Superior Drill Co., 64 O. G. 1133, 56 Fed. 152, arises in this case, and has not been overcome by any testimony on the part of the complainant. I think, therefore, no infringement is shown, and the bill must be dismissed for want of proof upon this point.