FISCHER V. HAYES.
ment in corrugating sheet metal." The specification of the patent describes the then existing mode of corrugating sheets of metal by means of properly-sllaped male and female dies extending over the sheet, and between which the sheet is placed. The dies are then made to approach each other. The creeping of the metal to supply sufficient surface to conform to the curves and angles of the tllould is resisted by the friction of the bent metal sliding over the faces of the dies, and by the force required to bend the metal from the shape it has already taken into the shape of the next succeeding corrugation. The power required is enormous, and the metal ceases to creep and stretches, and is injured, weakened, or torn apart. The new device was to con'ugate by properlyshaped dies acting in succession on different parts of the sheet. The method is described thus in the specification: There is a lower or female die, whose cross-section is the form desired in the finished sheet metal, and it does not differ from those then in use. A set of upper dies is then procured, whose acting surfaces, when properly arranged, will constitute a single snrface, c.onforming in shape to one side of the finished sheet. They a.re arranged so as to be free to move towards and away from the under die and be properly guided. In using the machine the sheet is laid loosely on the lower or bed side, and then one of the upper dies is forced down on it until the metal tak8s the proper shape. That die is then left down, and the next die in succession in the series is brought down and left down, and so in succession until the operation is finished. The metal can thus creep and conform to shape. It is apparent thlLt this arrangement, as described, does not contain the plaintiff's invention, although the specification speaks of using the apparatus for corrugating mould- . ings for the cornices of large buildings. The claim of the patent is this: "The method of corrugating or moulding sheet metal by several dies acting in succession, substantially in the manner specified, upon a sheet resting upon a bed, die, or dies, so as to cause the metal to conform to shape, substantially in the manner herein described." The patentv.6,no.1-6 .
ees state, in the specification, that they "intenc at times to use a sectional lower die in connection with sectional upper dies, acting in succession, as a convenient method of obtainang several distinct patterns from a comparatively small number of dies, and for other purposes." But this suggestion does not meet the invention embodied in claim 4 of the Fischer palent. Mr. Worthen testifies, however, that he made a machine for Althouse & Co. in which the upper die was stationary and the lower die moved up, the female die being sometimes above and sometimes below. He also testifies that in the machine he made for Althouse & Co., under the patent, the dies were generally in gangs, but the last right-angled bend was sometimes put in with a single set of dies, one above and one below,the female above and the male below,-both detflched from the dies which made the other bends. He also says, elsewhere, that the top die was fixed, and a lower sectional die was raised against it, and then clamped up and left, and the bed plate let down and other lower sectional dies raised in succession, and left up; that when two dies were used .singly, one above and one below, the upper one was fixed and the lower one was raised up against it, the upper die being the female die and the lower die the male die, and the sheet of metal being placed on the latter. This machine, he says, was ultimately sold for old iron. He says that cornices made by the method thus described were put upon two buildings which he names. Mr. Henry B. Renwick, the other patentee, and the same person who is the expert for the defendant, says that the machine he saw at Althouse & Co.'s was built in accordance with the Worthen and Renwick patent, and that the upper die and the lower die were both in sections; that he has no distinct remembrance of ever having seen the machine operated with only one male die and one female die in it, though it was capable of being operated with one pair of dies only, and with the female die uppermost; and that, when used with several dies in it, some of the female dies were uppermost and sam", lowermost. Mr. does not assert that in view of thtl
use of female dies above male dies; as so testified to by him, in the Worthen and Renwick machine, and of what is found in the Byrne book, there was not invention in claim 4 of the Fischer patent; and he, in substance, admits that if claim 4 is limited to the use of a single upper female die above a single lower male die, the invention in claim 4 did not exist in the machine which Althouse & Co. had, unless that machine was used in the way testified to by Mr. Worthen. He also testifies that so far as he remembers the upper set of dies in that machine was the stationary set. The statement that, in the machine referred to, the lower dies were carried up singly against the upper die, is contradicted by four workmen, Pressler, Emerson, Handmann, and Engleman, who used the machine at Althouse & Co.'s. Pressler has been in the employ of Althouse & Co. for the past 28 years, and foreman for them for the past 16 years. He says that even when the lower die was made in pieces or sections, so that a difference could be made in the height of the cornice, the lower sections were bolted together and were always elevated together, and one section of the lower die could not be used alone; that a single male die was never used under a single female die; that a sectional top die was wedged down to make the bend, and then the whole lower die was raised up against it, and then that sectional top die was fastened to the lower die, and the lower die was let down, carrying that top die, and then a second sectional upper die was operated with in the same way, and so on; and that the female die was below. Emerson, a machinist, who has been in the employ of Althouse & Co. for 22 years, and built the machine referred to under Worthen's superintendence, says that the lower die was generally in sections, and the upper dies were in sections; that the lower sectional dies could not be moved up singly, but were bolted together; that the lower die was moved up; that one at a time, and sometimes two ata time, of the upper sectional dies were dropped down, to bend with; that he never knew of a single female die used above a single male die on the machine, to make the last right-angled bend.
but such bend was made with a mallet; that he does not recollect the use of a single lower male die without any other form of bend or angle on the face of the lower die; and that when a single upper sectional die had been let down and used to bend, it was clamped to the lower die, and another sectional upper die was then used. Handmann, a house-smith, worked for Althouse & Co. for 13 years, and while they had this machine, which he assisted in making. He says the upper dies were sectional, and were used in succession, by letting one down at a time, and bending with it, by bringing up the lower die against it, and then th-upper die was clamped to the lower die and went down witn it; and that a single male die was never used under a. single. female die. Engleman, a house-smith, has worked for Althouse & Co. for the past 21 years. He worked on this machine. He says he never saw used in it a single male die under a single female die, there being nothing by the side of the male die. The testimony of Bohne and Sellman goes, also, to contradict Worthen as to the way in which the last right-angled bend was made in the specific cornices referred to by Worthen. It must be held that the defence sought to be established by the testimony of Mr. Worthen is not made out. (11) Objection is made to the specification of the plaintiff's patent because it states "that but two kinds of dies for all kinds of smooth mouldings that may have to be formed are needed, viz., rounded and square dies," and that "of the latter but one set is required for making all sorts of angles." No such defence is set up in the answer; but the specification is not open to the objection made. Of course, a square or right-angled die will not make a bend of a different angle. There is nothing in the specification to indicate that the patentee contemplated making any angular bend other than a right-angled bend. The drawings show no other. But they do show right-angled bends in contrary directions on the same moulding. The expression, "all kinds of smooth mouldings," means, in respect to angular mouldings, "all kinds of smooth right-angled mouldings," and the expression, "all sorts
of angles," means "all the kinds of square or right-angled angles" which can be made by the square dies, and which are shown in figures 2 and 3; the mouldings shown in those two figures in red lines being the mouldings which the speci. fication states the machine is to form. The only angles in the mouldings in those two figures are right angles. (12) It is not apparent for what purpose the testimony of Kittredge was introduced. No defence to which it can relate is set up in the answer. It is not referred to in the brief of the counsel for the defendant. No defence of laches or license, or acquiescence by the plaintiff in the use of the machine by the defendant, is set forth in the answer. The plaintiff's patent was granted in February, 1868. He began his suit against Wilson in May, 1869. It was not decided until April, 1879. The defendant's machine was made in 1872. This suit was brought in May, 1879. (13) The inventions covered by claims 2 and 4 of the plaintiff's patent were·new, useful, and patentable. All the questions raised and discussed on the part of the defendant have been carefully considered, and such of them as have not been particularly adverted to in this decision have not been overlooked; but they are of such minor importance that they can have no weight to control or modify the views before expressed, and therefore it is not deemed necessary to comment upon them. There must be a decree for the plaintiffs as to claims 2 and 4.
Court, S. D. New York. January 26, 1881.)
l\iOTION TO STRIKE OUT TESTIMONY.
:Motion to strike out testimony upon the grounds (1) that said testimony, and the oaths thereto, are fictitious and void; (2) that the direct testimony of said witnesses is fraudulent and inoperative; and (3) that said testimony is unauthorized, and does not properly form any part of the record, or of the proofs, denied, under the circumstances of the case.-[ED.
In Equity. Suit for Infringement. Cha1'les F. Blake, for plaintiff. James H. Whiteleqge, for defendant. BLATCHFORD, C. J. This is a motion by the defendant to strike out the testimony of John D. MacClay and that of Phillips Abbott, taken in this case for final hearing, on the grounds set forth in the notice of motion: (1) That said testimony and the oaths thereto are fictitious. and void; (2) that the direct testimony of said witnesses is fraudulent and inoperative; (3) that said testimony is unauthorized, and does not properly form any part of the record, or of the proofs herein. The affidavit for the motion, made by Mr. MacClay December 7, 1880, is to the effect that on the eighteenth of March, 1880, the day his direct testimony purports to have been taken, he went to the office of Mr. Blake, the plaintiff's solicitor, and there Mr. Abbott read to him a paper, but presented to him no drawing, and asked him to sign the paper, and he signed it; and he was then taken by Mr. Conolly before Mr. Shields, the examiner, and was sworn by Mr. Shields to tell the truth and the whole truth, the paper not being present, but being retained by Mr. Abbott; and that he did not after that give any deposition or return to Mr. Blake's office. He also says that when Mr. Abbott so read the said paper to him he did not read any questions to him, and he did not make any of the answers purporting to have been made by him. His explanation is that what was so read to him was in narrative form, and he thought it was an