said cans were made in accordance with the specifications of a patent 20 dayspriQ:r in date to the cOlnplainant's patent: This is 'equivalent to saying to complainant, by the answer, "I infringed. the first claim of your patent, but was jtist'ified in doing so. because your patent is anticiby an older patent, and therefore v o i d . " . The admission of infrinp;ement is complete; .The pleading or setting up of an older patent was new matter, which the defenQllDts were bound to prove, if they are to be protected by it j and the mere statement of the defendants. that such older )?lltent exists., and thlltit des.cribes. ,the com· plainant's oil-can is not sufficient. The ohler patent 'should have been put in evidence, so that the court might deterI:\line ""hether it so far described complainant's device as to deleat his patent, ' Possibly it might appear frQttlthe dates of the applications for the two patents that the one last issued was in fact first applied for, or the complainant, on the introduction of the older patent, might have shown by the prooftbat he was the first to make the invention, and hence eniitlilde tothe devicecovored by the first claim as against one claiming protection from a patent older in date. The law in regard to the effect of admissions in the answer when a replication is. filedia. I think, that so much of the answer as is directly responsive to the charges in the bill is to be taken as true; but any new matter pleaded by way of defense to the charges admitted to be true is affirmative matter,which the defendant is bound to prove where a replication is filed. In Daniells' Chancery Practice, (Perk. 4th Amer.Ed. 'vol. 1, p. 844; note 7,) it is said: .. hOwever, the answer of tile defendant is not responsive to the bill, or sets up affirmative allegations of new matter, not stated or Inquired of in tbe bill; in opposition to, or in avoidance of, the plaintiff's demand, and isreplied to. the answer is of nO avail in respect to sucb allegations, and the defendant is as much bound to establish the allegations so made by independent testimony as plaintiff is to'sustain his bill. · · ·. But when the case is heard upon a bill and answer alone, the answer must be taken as true. whetherresponsi ve to the bill or not." So also in McDonald v. McDonald, 16 Vt. 630, it is said: ..A tact alleged in the bill and admitted in the answer is established. but everyfllct alleged in the answer in avuidance of such fact must be proved the bill, if the answel' is traversed." And in Wakeman v. Grover, 4 Paige, 23, it is said: "Where a replication has been filed, allegations in the answer not responsive to anything in the bill cannot benefit the defendant at the hearing." There will, then,be a decree for the complainant, and a reference to a master to ascertain lind report as to the profits and damages complainant is entitled to from the manufacture of the 837 infringing cans which . defendants admit they have made. . ,
FEDERAL REPORTER,. vol.
CREADRY PACKAGE MANUF'GCo.
ELGIN Co-OP. BUTTER
CQweuU C0ur41!(.]). Ill1lnoU. July 81, 1890.):
P.A.TBN'l'S rOB INVENTIONS-NoVEvrt.
,patent No. 294,764 .grDntedMareh 11,1884, to Matthew Corcoran, tor. for trussing tubs, void for w:ant of patentable novelty, liS the combination, consistio&: ot recessed. standards. with removable bottom, and driVing weigbt, is new,tbougb ita .constituent elements baa.long been in use.
. . .
Claim 2 of letters patent No. 294,7M. granted Marcb 11, 1884, to Mattbew Corcoran, 'tor."machine for trussing tubs" covering a combination ot recessed standards, with truss-boops, removlI,blebottoDl, and driving is infringed by letters patent No. 856,217, Il'rantea Janu,ary18, 18871 to F. W. UlrICh,for the same kind of machine; wherein thll·device is a'recessed Iron pot, with removable bottom and tru8ll-bQops placed In the reQeB89S, .. the latter device is. simply an ,equiValent of . . the'tormer.
Manahan <I. Ward, for complainant. James (Joleman and John G. EUiott, for defendant.
BLODGETT J. This is a bill in equity seeking an injunction and 8Q-; counting bY'l'easom of the alleged infringement of patent No. 294,764, granted March 11, 1884. to Matthew Corcoran, for a "machine for truss.: ing tubs.» The patentee describes his invention in the specification as follows: "My invention has reference to improvements in macbineryfor trUSSing or setting having to the manufacture of b\lttertubs. which)atter are now in greatdeJDand as a means forpacking,preservIJ;lg, and butter. ,Sp,qhiwprov;ements consist mainly in nove. supPol:tingt):l(l, proper aoove eaoh·n*bert,Q receiVe and the employment of tp torce thesta,.v.es into 8uch ",hUe thelatter are 811pported incer., ta:in . The device covered by the patent consists of three standards placed at equal distances apart in.the,pedpbJerj"'of a circle,andin the inner faces of [which: reeesses are formed fprthe truss-hoops to res.t upon. These recesses recede from each other so that the upper ones hold the larger.. lized truss-hoops, as the tub is trussed small ends dowdwards. These recesses are so arranged. as ;toholdtbe truss-hoops.in ,place, and below "1." in the.drawings, is another recess, marked "2" in the;drawings, for holding a. removable bottom to the machine; a., ,that is, a bottom ,Which is hung upon a ]pyer,andsp,arranged as action of the foot1,lpon a treadle In,.l!oy ,'bepressed .up:ward of the staves wqile they are irrg put in place. After the staves ar/il properly a weightsu&-. pended over the machine is dropped upon the upper ends of the staves for the purpose of the staves to place. The patentee then describes the operation of his machine as follows: "The operator places his foot on the outer end of the iever, bringing'such end down upon the floor, and by the Same motion forcing the movable bottom up against the under edge of the lower truss-hoop. the trUSS-hOOps haVing