HENDY V. GOLDEN .8T.lTE &
MnmnS'
worms.
'5;1[)
.It is, undoilbtedly,- an im pl'ovement uponb6th of them, in the sense of the patent law; that is, a change from them, and, I think, a valu'able ,1ne. ' It may be regarded, perhaps, as a combination of the ,merits of both those machines; but, tried by all usual venience, simplicity, and cheapness,-the change is, in my judgment, a patentahle one. Dem'ee for the complainant.
HENDY
v;
GOLDEN STATE
&
MINERS' IRON
Wom:s. 1
(Oircuit eVilrl, D. OalifV1'nia.
January 29,1883,)
1. '2.
REIS'UED PATE:-iT.
The specilieations for the re:ssue of a patent may be umcl1l1cd by the moclel deposited in the palent-omce, as well as by the elmwin;;;, A:UEKDED DY MODEL,
Where the sjlPC'ifi"ations nnd drawings do not show whether or not the mu"hine patcnte,j nnbl'acpd a feature elaimed in the reissued patent, the court emmot say, from a comparison of the original amI reissued patents alone, whether the refs,;uo emhmces a feature not filelicated in the milohine as first without an inSI)ectioll of the original model depo.,ited in the palentoltlce,
In Equity. Beone t(; Jliller, for complainfmt. 111. A. Wheaton, for defendant, SAWYER, J., (Ol'illly.) This is a demurrer to a hill in equity for the
infringement of a pn tent for an ore-crushing m:lehin<3. The original patent and the reissue are both set ant; and the point is that the reissue is broader than the original patent, and takes in an element not indicated in the original and drawings. This new feature of the patent is the extension of the rear board of the hopper .downwards, so as to operate as a scraper on a vibrating tray, for the purpose of forcing the are to pass off. There is nothing stated in the speoifications of the original patent in regard to this construction of the hopper-board at the rear; and it does not appear whether it ,yas so formed, by the drawings in the original patent. Kor does it appear that it was not there. It may ha ye been, and probably was, in the original machine and model. In the dra\yings of the reissue there is a part of the side cut away on the hopper, to show the extension of this rear board dO\n1wards to the vibrating tray. In the first drawings the side is not cut away, and it does not show whether the rear board goes down to the tray or not. In all other respects the drawings are the same in the t\\'o patents, The la\\' authorizes the change ,of the specification-authorizes the speciticatioll3, for the purpose of , tTrol11 Sth
516
FEDERAL REPORTER.
the reissue, to be amended by the model in a machinli1 patent as well as by the drawings; and the supreme court, in Seymour v. Osborne, 11 Wall. 516, recognizes the right to amend the specifications by the model in such patents, as well as by the drawings. I think, therefore, from the comparison of the original patent with the reissue, without the model, that I cannot assume that the specifications have been enlarged, so as to embrace matters not indicated in the original model. The original patent does not show that this rear hopperboard did not extend down so as to act as a scraper; and the model filed, as required by the patent law, may, and probably does, show that it is so extended. As the speciflCations may have been amended by the model from a mere comparison of the original patent with the reissue, it cannot be seen that the amendments in the specifications have not been properly made from the model, or that the invention is not therein clearly indicated; consequently I cannot say, without seeing the model deposited, that the reissue embraces more than the original invention. It does not appear, affirmatively, that it does, and the presumption is that the commissioner did not exceed his jurisdiction in granting the reissue, The demurrer is overruled.
McKAY
and others v.
STmvE
and others.
(Circuit Com't, D. Massachusetts. J..:PATEKT-HEISSUE INVALID-blPIWVE)IENT AKD BOOT tlOLES.
June 22,1883.) m MACITIKE
Fon
N.UI,TNG
SHOE
. Heissue, granted March 28, 1870, of the oril;inal patent I;ranted to Gordon .McI{ay, as assignee of himself and Hadlev P. Fairfield, on October 13,1874, for improvements in machines for nailing the soles of lJoots and shoes, was not to supply an omission or correet a mistake in the original patent, but is a attempt lJy the inventors to contradict the leading assertion most positively and uneqnivocally made by them in their first spltifieation, and to enlarge claim SJ as to cover a combination which omits the most ingenious and distinctive of the comhination originally patented, and the first, second, and third claims of su(;h reissue cannot be upheld. The fourth claim of the reissue is not infringed by the machine of defendant, in which the selection of the nails to be driven is not made automatically according to the of sole to lJe nailer!, hut is -:ontrolled by the direct action of an attendant, interrupting the automatic action at such times as he chooses.
2.
In Equity. . '. E. llicrwin and J. J. StorrolV, for plaintiffs. B. F. Thurston and J. E. Mll.ynadicT, for defendants. Before GRAY and LOWELL, JJ. (}RAY. Justice. This is a bill in equity for the infringement of two patents for improvements in machines for nailing the soles of boots and