AMERICAN MATTRESS & CUSHION CO. v. SPRINGFIELD MATTRESS CO. et al., 165 F. 191

GROSSCUP, Circuit Judge (after stating the facts as above). The mattress described in the patent is made up of a series of layers of cotton, wool or other elastic fabric; the inner layer being compressed by means of stitches running clear through it, and the outer layers being held to the inner layer by means of stitches on the side. The effect of this arrangement is to give a smooth surface; to avoid the necessity of expensive covering- to that part through which the stitches run; and to make a mattress that will neither expand nor curl up when put on the bed. And it seems to have been commercially a success.

The principal anticipating device — the Chaney patent — is one in which the internal mattress was put in a bag and then inserted inside of another bag — a bag within a bag.

Now though the Chaney patent calls for a mattress having a tufted inner filling, and removable outside layers, it is essentially different from the conception of the Fisher mattress, because in the latter, the only bag or envelope is the final sheeting — a conception clearty set forth in the description, and embodied, we think,' in the claims sued upon, when the claims are read in connection with.the description; and it is exactly because of this difference, that the Fisher mattress meets its purpose of always remaining smooth, and never curling up, and thereby lias become a superior mattress.

The Circuit Court, we think, erred in holding that the Fisher mattress was anticipated. It is urged upon us that inasmuch as the bill of complaint was brought in a district in which the defendants are not inhabitants, the burden of proof was upon the complainant to show a complete act of infringement in such district — otherwise the Circuit Court for that district would be without jurisdiction to hear the cause; and the case of Gray v. Grinberg et al., 159 Fed. 138, 86 C. C. A. 328, along with other cases, is cited.

The usual rule is that whether a defendant shall be required to defend in a court other than the Circuit Co. for the district of which he is an inhabitant is a question of privilege that he may insist upon or waive, at pleasure. Gray v. Grinberg is not opposed to this rule.

The question in that case was, whether as a matter of procedure, the defendant had waived that privilege — • whether by the bill alleging that infringing acts had been committed within the district, an issue of fact involving the question of privilege was not thereby tendered — an averment of fact that the defendant, wishing not to waive, but to exercise his privilege, had not the right to traverse by answer.

We need not enter, however, into this question of procedure, for the proof before us satisfies us — all the circumstances being taken into consideration — that acts of infringement were actually committed within the district where the suit was brought, and before the suit was brought. The decree of the Circuit Court is reversed, and the case remanded with instructions to proceed further in accordance with this opinion.