T. L. Livermore, for complainants. B. F. Thurston, for defendants. LOWELL, C. J. As I construe the patent, it is for an improvement in the manufacture of that class of whips which are turned in a lathe, and the whip-stock claimed is the stock just before it goes into the lathe, or an improvement in the manufacture at that part of its progress. This last point is very important, because one Herrick is proved, without contradiction, to have made whip-stocks, with a wooden plug or backing, before 1870. Herrick did not finish his whip-stocks in a lathe, though they were fit for that mode of operation, and, if the second claim of the re-issue is for a turned whipstock, it might, perhaps, be sustained. But the claim itself declares that the arrangement is "in order that the butt of the stock may be held and finished by a turning machine," and a statement precisely like this is made in an earlier part of the specification. That claim must, therefore, be held to have been anticipated by Herrick, and to be void. The invention mentioned in the first claim was made in 1865, and was not, in my opinion, in public use or on sale more than two years before March 9, 1871, by reason of the manufacture at Charlestown; not on sale, because neither the invention, nor anything which embodies or would be likely to suggest it, is found in the completed whip; and not in public use, because the invention was tested in the only way in which it could fairly be tested, by making a few at the factory where the patentee was employed. The law since 1870, as I understand it, has avoided a patent, if anyone has publicly used or has sold the same invention, by whomsoever discovered, for more than two years before the patent was applied for. The Herrick whip was certainly made before 1870, but I do not think it is proved to have been made before March 9, 1869. The precise date is left in much doubt. I do not find that this invention was anticipated. Spencer's evidence as to certain kinds of whips, of which he gives reproductions, is seriously contradicted by workmen referred to by him, as well as by others; and none of the whips, if they wore
SINCLAm t'. BACKUS.
made, were of the class of whips which were or could be turned in a lathe. If some of them had a backing of wood below the iron, it was not, in my opinion, the equivalent of that of the patent. Whether the invention of the first claim was patentable, in view of the state of the art admitted in the specification, is certainly a nice,question. Hull disclaims the process of turning an article so as to leave a. "stump-shod" or piece to be cut off. This was done in turning the legs of chairs and other articles. I suppose he means that he disclaims any broad or general application of this mode of manufacture. As applied to a. whip-stock with the peculiar benefit which it gives, and the exact application which it requires, I think, upon the whole, it may be supported as being something more than the new application of an old method. The invention does not consist either in making a "stump-shod" or in sawing it off, but in combining the metallic load-piece of a whip-stock with the stump-shod in such a way that the stump-shod may be sawed off. I find the first claim of the patent to be valid, and to have been infringed. Decree for the complainants.
(Circuit Court, D. Ma88ach'U88tt8. --,1880.)
No. 45,344, granted to D. M. Moore In December, 1864, for an Improvement In wrenches, held vaHd.
In Equity. LOWELL, C. J'. The patent of D. M. Moore, No. 45,344, was granted in December, 1864, upon an application filed October 1, 1864, for an improvement in wrenches. The patented tool is a wrench with a double-faced ratchet-wheel connected with two pawls, which are controlled by a lever and springs. The springs tend to keep the pawls in contact with both faces