Page:Federal Reporter, 1st Series, Volume 7.djvu/871

 INGEfiSOUi V. lUBNBQ. 869 �Ingersoli, ». TuBNBB and another. �[Gireuit Court, D. New Jeriey. June 5, 1877.) �1. Patent No. 119,705— CusPipoK8—AsTicrPATiON—VALn>rnr. �Letters patent No. 119,705, granted October lO; 1871, to E. A. Heath, for improved metallic easpidor, held, anticipated by letters patent No. 106,094, granted August 2, 1870, to William H. Topham, for improved spittoons, and therefore invalid. �In Equity. �Whitney e Betts, for complainant. �Charles F. Blake, for defendants. �Nixon, D. 3. This is a suit in equity to restrain the in- fringement of letters patent No. 119,705, issued to E. A. Heath on the tenth day of October, 1871, for a metallic cus- pidor. The bill of complaint prays for an injunction, ac- count, and assessment of damages. The answer denies that Heath was the original and first inventor of the alleged im- provement in cuspidors described and claimed in his letters patent, but that he \yas anticipated by one William H. Top- ham, to whom letters patent were granted on the second of August, 1870. The word "cuspidor" is derived from the Por. tuguese verb cuspo, to spit ; cuspidor, a spitter. The English cuspidor is a spittoon of a peculiar form. Not much stress, therefore, can be laid upon the fact that Topham calls his patent "an improvement in spittoons," and Heath calls his "an improvement in cuspidors." The difference between a spittoon and a cuspidor is one of form, and the form of the cuspidor is not new. The characteristic and valuable feature of both articles is their self-righting quality, arising from their weighted bottoms. The functions of the weighted bottom in each are the same, and Topham's bas the merit of being the older. It is in evidence that he made papier mache cuspidors with weighted bottoms as early as June or July, 1871, anterior to the date of the patent to Heath. What, then, bas Heath done? He bas improved a cuspidor by increasing the weight of the bottom, whereby it is rendered ��� �