!>EERE V. ARNOLD.
be used with my stud catch, and my stud catch may be used with various kinds of button heads or may be clenched directly to the material; and I do not de-
be used with n slitted or spring stud'. In fact any suitable form ot stud may
sire to be understood as being limited to the details shown."
The only other difference which demands attention is that the anvil plate of the patent has a hole in its center and the corresponding part of the defendants' device is not so perforated. The absence of this hole is immaterial. If it were present the defendants' device would operate precisely as it does now. The motion is granted.
at v. ARNOLD.
(Circuit Court, N. D. New York. June 14, 1899.)
The Barley patent, No. 25G,619" for improvements in harrows, held not anticipated as to its fifth claim by the Wiard & Bullock patent, No. 229,217, for improvements in plows.
SAME-CONCLUSIVENESS OF PROCEEDINGS IN PATENT OFFICE.
It seems that a patent regularly issued and valid on its face cannot be declared void by the courts because of a clerical error of an examiner in failing to follow the rules of practice in the patent office.
This was a suit in equity by Deere & Co. against O. M. Arnold fOl' alleged infringement of letters patent Ko. 256,619, issued to James H. Barley April 19, 1882, for improvements in harrows. After a final hearing, the court, on January 3, 1899, filed an opinion sustaining the patent, and holding that it had been infringed by defendant. See 92 Fed. 186. The defendant now moves for a rehearing on the ground of newly-discovered evidence. John R. Bennett, for complainant. . G. A. Prevost, for defendant. COXE, District Judge. The first branch of this motion has reference to letters patent, No. 229,217, ,granted June 22, 1880, to Wiard & Bullock for improvements in plows. Permission is asked to introduce this patent in evidence together with certain exhibits made thereunder illustrating the manner of fastening the wheel and jointer standard to the plow beam. At the hearing the complainant consented that these exhibits, all of them antedating the Barley patent, should be regarded as before the court, and the reargument proceeded at once. The complainant has filed no papers in opposition. The matter is thus left with the court upon the moving papers alone and these contain very little to aid the court in reaching a correct understanding of the Wiard & Bullock patent and devices. However. the device in question is not a complicated one and may be readily comprehended. The original record is not before the court, but as the evidence is now recalled it is thought that the Wiard & Bullock 'reference does not approximate the combination of the fifth claim of the Barley patent as closely as several exhibits which were discussed at final-hearing-nota.bly the patents of Cambridge and Beauregard. If the court has correctly construed the fifth claim of the Barley pat-
presents, no defense. TheWiard-Bllllock, denQt:relate toa harrow;or a harrow tooth, but to a plow-and, for attaching certain deviCes to the beam. There is a double flanged beam it is true; but here the analogy ceases; , The plate isinotHamped to the beam between the flanges,. it .ex:tends beyond the ;flanges; the standard is. not held in position against the edges ·of the beam ; it does not touch the beam. The bar of the standard is' grooved to fit a spline on the eyebolt which holds it in position. It is perfectly clear that this construction would not infringe the claim in question if made now for the first time and it is equally clear that it is not ananticipatiC\n. The second branch of the motion relates to an alleged mistake in the patent office; it being that t,he fifth claim was permitted division. Permission is asked to through an error in the take testimony upon this issue;' it being the belief of the defendant that the proof will show that the claim was issued byaclerical errol' and invalid., This motion is vigorously opposed by the coniplainant. The court is of the opinion that the' 'cause should not be opened to take this proof. , " First. It is exceedingly doub.tful if the defendant ha's niade a case for reopening the proof 'assuming thatthe:new vidence is relevant to any legal defense. The file:: was, of course, before the defendant l,tUd,there is no the.informatioll ,was not obtained counsel had prior to ,the former he!ldng, tbe communication with, the examining division, the decision could, as;well have appears in the Illovl'ngpapers. It been had:pefore, for seldom these cases tl;\at activity exerted prior to tbetriaJ, .will :not the which s\?-p-sequfIltly discovered. '. . Second. The court is familiar with no authority which holds that a patent regularly issued and valid on its face can be dechi.red void because of a clerical error of an examiner in failing to follow the local, . of practice in the patent om.ce.. The patent has expired ap.dit'wOutd seem an of discretion to sUbject the comt? the annoyance an'd expense'incident to opening the ell it! is than doubtful if the testimony wnentaken ean be of thl? to .... The ,decision'tai! final is a,dher.eGtqand the motion' to take' testimony as' to errors in the . ,. .
. f 'THE HAXBY. . (No.2.)
June, 30,.' 1s99.)
." No. 1:4.·
TO PROPERTY ON PIER., .... . ..'
struck against a pIer extending iuto navigable water, breaking 'it and eallsfng propffi'ty lylng thereon to fall into the water, where ltsankbeyond'l'ecbvery, thicdegal'injury'was done upon the pier, which is land, aJ!ldfuot in tlie water, and a suit to. recover. for the loss is not within of a court j)f admiralty.