SHIPMAN, Circuit Judge. This is an appeal from a decree of the circuit court of the United States for the Southern district of New York, which dismissed a bill in equity for the infringement of letters patent No. 28,142, applied for on October 15, 1894, and issued on January 11, 1898, to Spencer C. Cary, for a design for a box fastener. 90 Fed. 725. On April 21, 1891, the same Cary obtained letters patent No. 450,753 for a box fastener as an article of manufacture. The invention was a very narrow one, and was described in the claim as follows: "As an article of manufacture, a box strap composed of a metal plate or strip, the end edges of which are curved in outline, and having a corrugation which is continuous at, along, and upon the side edges, and said end edges and tongues at or near the strap ends cut from the strap body within the line of said edge corrugation, and bent at an angle to the face of the strap which is opposite to the corrugated face thereof, substantially as and for the purpose set forth." The limited character of his invention is apparent from the following excerpt from the specification of the patent: "I am aware that box straps have been heretofore formed with tongues cut from the strap body, and bent at an angle to the face thereof, and hence I make no claim thereto, broadly, herein. I am also aware that box straps have been formed with their end edges curved in outline, and therefore I make no claim to such form of the said edges, broadly, herein; and I am also aware that box straps have been corrugated along and upon their side edges and have been given corrugations extending laterally of the strap; but in such latter case the lateral corrugations have not been at and upon the said end edges." His design patent consisted "in a box fastener having ends bounded by curved lines and upwardly or downwardly extending prongs, with openings in the material, the main surface of which is plain, and the essential features are a plain, flat body bounded at the sides by substantially straight lines and at each end by a curved line, having near each end openings in the face, and prongs extending from the sides of the openings at substantially right angles to the surface of the main body of the fastener." The invention of the mechanical patent had a continuous corrugated edge, which extended along and upon the edges of the fastener. The design patent has a plain, flat body. This is the only difference between them as disclosed in the specification of either patent, and the question in the case is whether the omission of the corrugated edge is patentable. Section 4929 of the Revised Statutes provides that any person who, by his own industry, genius, efforts, and expense, has invented and produced any new and useful original shape or configuration of any article of manufacture, may obtain a patent therefor. It has been clearly stated that, to entitle an inventor to the benefit of the section in regard to design patents, "there must be originality, and the exercise of the inventive faculty." "Mere mechanical skill is insufficient. There must be something akin to genius,—an effort of the brain, as well as the hand." Smith v. Saddle Co., 148 U. S. 674, 679, 13 Sup. Ct. 770, 37 L. Ed. 606. In this case the patentee had simply omitted from his own box strap the corrugation along the edges, and made a plain strap. We can see nothing of an inventive character, nothing akin to genius, in this change. It was simply the work of the mechanic, without an apparent effort of the brain, for the purpose of increasing the simplicity, and therefore the utility, of the strap. There was a pre-existing flat box strap, but it is not necessary to analyze the differences between it and the device shown in the patent in suit, for the line of distinction between the old and the new, at the date of the patented improvement, is shown upon the face of the two Cary patents. The decree of the circuit court is affirmed, with costs. (98 Fed. 621.) DICKERSON v. SHELDON. (Circuit Court of Appeals, Second Circuit. December 7, 1899.) No. 1,181. PATENTS-LIABILITY FOR INFRINGEMENT-PURCHASER OF ARTICLE FROM UNITED STATES. The fact that an article which infringes a patent has been seized, condemned, and sold by officers of the United States in proceedings for violation of the customs laws does not vest the purchaser, who buys with knowledge that the article infringes the patent, with any right to vend it, as against the owner of the patent, nor in any way affect his liability for the infringement in case he does. Appeal from the Circuit Court of the United States for the Eastern District of New York. George H. Petitt, U. S. Atty., for appellant. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. LACOMBE, Circuit Judge. The complainant is the owner of United States letters patent No. 400,086, issued March 26, 1889, for the chemical compound or drug known as "Phenacetine." ant is the owner of several packages of the same compound, made in Germany, and which it is not disputed infringe complainant's patent. These he has offered for sale, insisting that he is entitled to sell them, in entire disregard of complainant's patent. The person or persons who brought these packages to this country undertook to smuggle them in without payment of the customs duty. They were detected, and the goods were seized, condemned, and sold, in conformity to the statutes of the United States. The defendant bought at such sale, knowing at the time that the goods infringed the patent. The defendant's main contention appears to be that, by passing through the hands of the federal government, the infringing Phenacetine has been in some way freed from the operation of the letters patent; that the rights of the patentee, so far as they relate to this particular Phenacetine, have been abrogated by the action of the taxing officers. This proposition is wholly without support in any case cited on the brief. The citations enunciate merely the proposi tion, which no one here disputes, that all property rights are sub ject to the taxing power. The law as to patents infringed by government is thus stated by the supreme court: "In England the grant of a patent for an invention is considered as simply an exercise of the royal prerogative, and not to be construed as precluding the crown from using the invention at its pleasure. But in this coun try letters patent for inventions are not granted in the exercise of prerogative, or as a matter of favor, but under article 1, § 8, of the constitution, which gives congress power to 'promote the progress of science and useful arts, by securing, for limited terms, to authors and investors, the exclusive right to their respective writings and discoveries. The patent act provides that every patent shall contain a grant to the patentee, his heirs and assigns, for a certain term of years, of the exclusive right to make, use, and vend the invention or discovery throughout the United States. Rev. St. § 4884. And this court has repeatedly and uniformly declared that the United States have no more right than any private person to use a patented invention without license of the patentee or making compensation to him." Belknap v. Schild, 161 U. S. 15, 16 Sup. Ct. 444, 40 L. Ed. 591, citing U. S. v. Burns, 12 Wall. 252, 20 L. Ed. 388; Cammeyer v. Newton, 94 U. S. 235, 24 L. Ed. 72; James v. Campbell, 104 U. S. 358, 26 L. Ed. 786; Hollister v. Manufacturing Co., 113 U. S. 67, 5 Sup. Ct. 717, 28 L. Ed. 901; U. S. v. Palmer, 128 U. S. 270, 9 Sup. Ct. 104, 32 L. Ed. 442. The same court has held, in the same case, that the United States have not consented to be liable to suits, founded in tort, for wrongs done by their officers, though in the discharge of their official duties, and are therefore not liable to a suit for infringement of a patent; also that officers or agents of the United States, although acting under order of the United States, are personally liable to be sued for their own infringement of the patent; but that injunction should not be granted, even in a suit against them, when the United States holds both the title and possession of the article, and is actually using it through such officers and agents; it being further intimated that, for such use of a patent,-practically an exercise of the right of eminent domain,—the proper forum in which to seek redress is the court of claims. James v. Campbell, 104 U. S. 358, 26 L. Ed. 786. But none of these propositions touch the case at bar. Complainant is not suing the United States; nor have the United States either title or possession of the "thing made in infringement of the patent"; nor are they using it in any way; nor has any officer or agent of the United States been sued or enjoined; nor is any claim made against the United States for any infringement of the patent, by reason of its having, without license of the complainant, sold Phenacetine which infringed the patent. There is nothing even for the court of claims to consider. Nor is there any conflict, as defendant contends, between the patent laws and the revenue laws. The customs officers have made no effort to tax, condemn, or sell the complainant's property in the incorporeal franchise which he holds from the United States; nor is the patentee seeking, nor has he sought, to prevent the customs officers from taxing, condemning, or selling the corporeal property upon which the tariff act imposed duty as a chemical compound. The defendant further contends that, by the condemnation proceedings, the statutory notice having been given, the absolute title to the property sold passed to the purchaser, freed from any lien, interest, incumbrance, or reservation. This is correct as to the prop erty sold. All persons having title to it, or lien upon it, or interest in it, are cut off. But the owner of the patent is in none of these categories. He has no title to, or lien on, or legal or equitable interest in, the infringing property. "The right of property in the physical substance, which is the fruit of the discovery, is altogether distinct from the right in the discovery itself." Patterson v. Kentucky, 97 U. S. 506, 24 L. Ed. 1115. "Title in the thing manufactured does not give the right to use the patented invention. No more does the patent right in the invention give title in the thing made in violation of the patent." Belknap v. Schild, 161 U. S. 24, 16 Sup. Ct. 448, 40 L. Ed. 591. The suggestion in defendant's brief that complainant in some way participated in attempt to smuggle the packages is wholly without any evidence to support it. The order of the circuit court is affirmed. (98 Fed. 629.) JANDREAU v. WITHERBEE et al. (Circuit Court of Appeals, Second Circuit. December 7, 1899.) No. 30. WHARVES INJURY TO VESSEL IN LOADING. Where the loading of libelant's canal boat, of which he was captain, with iron ore, at defendant's dock, is shown to have been under his own direction, the lever man who controlled the flow of ore through the chute into the boat being at a distance, and governed by libelant's orders as to when he should start and stop, as the boat was moved along, defendant cannot be held liable for the wrecking of the boat by the running of too much ore in one place during libelant's temporary absence from the chute, it not being shown that defendant's superintendent or the lever man was chargeable with knowledge that libelant had left the chute unattended to either by himself or a deputy. Appeal from the District Court of the United States for the Southern District of New York. This is an appeal from a decree of the district court, Southern district of New York, in favor of libelant for $265.51. The facts sufficiently appear in the opinion. C. C. Van Kirk, for appellants. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. LACOMBE, Circuit Judge. Libelant was the captain and owner of the canal boat Lyman Hall, which on June 24, 1896, was being loaded with iron ore at defendants' wharf, on the west shore of Lake Champlain, at Port Henry, N. Y. The loading began about 7 a. m., and, according to the usual custom, the first part of the load was brought aboard in wheelbarrows, and, when dumped, was trimmed by libelant's men. It was trimmed even on the boat, from bow to stern, the whole length of the boat, about one foot deep. The ore brought on in wheelbarrows amounted to about 105 tons. They then began, 39 C.C.A.-13 about 2:30 p. m., to load some 35 tons more through a chute. There were five cars loaded with ore, holding 6 or 7 tons each. These cars ran upon a trestle, which followed the line of the wharf, about 12 or 15 feet back from its front. The trestle was about 20 feet high, and from it there ran a chute so arranged as to catch the ore as it was discharged from the bottom of a car, and conduct it down to drop beyond the edge of the wharf into the boat. The mouth of the chute was 4 or 5 feet above the deck of the boat, the distance varying with the amount of load in the boat and the height of the water in the lake. The chute was arranged with a lever, which opened and shut a gate, thus admitting or preventing the running of the ore. The lever was worked by a man known as the "lever man," from a platform nearly on a level with the trestle. Inasmuch as the chute was stationary, the method of loading practiced that day (as usual) was to move the boat along the dock, so that different parts of the deck came, in succession, under the mouth of the chute. The boat was moved by men standing on it, and pushing it along. On the day in question the bow of the boat was first placed under the chute. When enough ore had been deposited there from the chute, the lever man was instructed to cut off the flow, and thereupon the boat was moved a little further along, and, being stopped when the chute was some what further aft, the lever man was instructed to allow the ore to flow again. Sometimes the ore continued to flow while the boat was pushed along. This operation was repeated until the boat had been pushed so far along that the mouth of the chute was about amidships, the captain up to that time having directed the operation, calling out instructions to the lever man, and regulating the movements of the men who pushed the boat along. Having brought the boat up till the chute was amidships, the captain determined to go forward to measure the draft of the boat, in order to ascertain how much more load to take on. When he started forward, he said to one of the pushers, "Now, you be careful not to put on too much ore; I am going to measure my boat to the bow." This pusher was one of the men employed by defendants to wheel the ore on the boat. It took the captain, as he says, probably four or five minutes to measure the draught, the boat meanwhile being pushed along, and the ore flowing in, and, when the stern reached the chute, the boat was stopped, and a pile accumulated there about four feet high. Having finished at the bow, the captain started for the stern to measure there, when he saw that the boat was pitching by the stern; whereupon he called out to stop the flow, which was done as soon as possible after his call. Nevertheless the load was too much for the boat, and she sprung a leak at the stern, was pulled on the beach, where she grounded on hard bottom, and broke in two. The district judge, in a brief memorandum, found the libelant to blame for not stopping the chute while he went forward, and that the defendants are not chargeable for the neglect of the "pusher" to attend to the chute properly, the libelant having left that matter in his care. From these findings no appeal has been taken. He further found "that the superintendent and lever man were to blame for sending down ore in such quantities when the captain was forward |