288
FEDERAL REPORTER.
In regard to the Scherling patent, as alread'y stated, it shows a commonand well-known safety-pin,combined with a hook of the same material,and integral with the pin, the material being elastic wire, so that the hook may be secured or fastened to the pad by means of the pin, and the pad then attached to the collar by clasping the hook over the fore roll of the collar. The drawings and specifications show two forms of this device. In Figs. 1, 4, and 5 of the drawings, the safety-pin is shown, and in Figs. 2 and 3 the hook is attacl1ed to the pad by pins inserted in the texture of the pad, with no safety-loop or lock to hold the pin in place. The proof shows that safety-pins, with hooks integral with the pins, are much older in the art than the Scherling patent. They are shown in the English patent of Montelart of February, 1864; in the American patent of Moore of March, 1869j in the American pat-ant of Marston, January, 1872j in the American patent{)f Jenkins, August, 1880j in the American patent of Judd, March,1882; while tbe Canadian patent to McClain, the complainant in this case, of July, 1883, shows a pad fastened to a horse-collar by a wire hook fastened to the pad by inserting therein a pin integral with the hook. The only difference that I can perceive between this patent and the two McClain patents, is that this device, especially in the safety-pin form, gives an axial movement of the hookj but it seems to me that McClain had in view some mode of attaching the hook to the surface of the pad, similar in its action and result to that obtained by the Scherling pin and hook. In both his patents McClain says in substance that he would not deviate from his patent to fasten his springs to a surface piece, and then fasten such surface piece to the surface of the mate.ial of the pad bystitchingj and it will readily be seen that by so doing some flexibility between the pad and hook would be secured, for, the surface of the pad being of cloth, quite a free movement of the hook back and forth would be obtained from the looseness and flexibility of the cloth. But without saying that McClain anticipated Scherling in this particular, I am satisfied that with safetypins and hooks combined as shown in the Jenkins and Judd patents, there was no room for invention in substituting a safety-pin and hook, such as are shown in the Scherling patent, for the single hook or spring shown in the McClain patent of 1882. While McClain says in his single hook patent that he expected in practical operation to fasten his hook to the pad by means of rivets, yet at the same time, as he does not confine himself specifically to that mode of fastening, I apprehend that any mode by which the spring could be fastened to the pad, and secure the result intended to be secured by the patented device, would be allowable and open to McClain. Hence, if in the device covered by his single-hook patent McClain.found that it was better, on the ground of economy, or for any other reason, to fasten the hook, or spring as he calls it, directly to the surface of the material of the pad with a pin, or in any other manner which was pra.ctically useful, he would have had the right to do so under his patent of 1882; while his Canadian patent shows the use of a wire hook and spring fastened into the surface material of the pad by a pin; not a safety-pin, it is true, but by thrusting the pin into the ma-
SHANNON .t!. BRUNER.
289
te:rial of the pad substantially as is shown in the Scharling drawings, Nos. 2 and 5. But if I amwtong in'this construction, I am satisfied that the defendants do not infringe the Scherling patent. The claim of that patent, in substance, is for a hook foJ.'medof wire, with a safety-pin integral with the hook for attaching the hook to the pad. (The claim says the pin is for the attachment of the hook to the collar, but this is evidently a mistake, and it was undoubtedly intended that the safety-pin should attach the hook to the pad.) 'The defe.ndantsdo not use a pin integral with their hook for the purpose of fastening their hook tu the pad; but the hook is fastened to a piece of leather in such manner as to give it an axial or rolling motion; and this leather is riveted to the pad by rivets p-.lssing through the material of the pad. In view of the pat.:. ents to McClain, this Scherling patent must be confined to the special devices sbownand claimed, and cannot be enlarged or. expanded by.coa.;. struction, because hooks, both double and single, with whichtQ fasten pads to collars, and performing the same function in the same way !is is done byScherling, were shown.in the two McClain patents now ineuit, and also in McClain's Canadian patent; and hence as the defendants do Il,ot use asafety...pin integral with their hook to attach their padato the collars, th9Y cannot be said to infringe the Scherling pa,tent. For these reasons, I conclude the complainant's bill must be dismissed for want of equity.
SHANNON 17·. BRUNER.
(Oirc'Uit Court, B. D. Mi8sO'Uri, B. D. MayS,1887:) Plaintiff was the owner ola patent for laying a concrete pavement in blocks, so that one block might .be removed injuring the rest of the paveI ment; the division being effected by putting tar-paper or some equivalent . material between the blocks. Defendant first laid a lower course of concrete, removed the wooden frame around each block, and against the edges of the concrete placed paper, sand, or wood, to separate it from the adjoininglliock; then placed another course of concrete. above,and cut. thxough the upper course with a trowel, making the joints 'of the upper course coincide with those of the lower course. Held, that by the interposition of sand, paper, Or wood between the blocks in the lower course, he infringed upon the patent of the plaintiff. : . g. SAME-UTILITlr-CONCRETE PAVEMENTS. The evidence showed that many had heen made to lay concrete pavement substantially in the mode described in plaintiff's patent, and that when so laid it materially affected the wear of the pavelllent, and prevented cracking by frost. Held, that the patent was not void for want of utility. S. SAME-ANTICIPATION-CONCRETE PAVEMENTS. Plaintiff had a patent for laying a concrete pavement in blocks, so that the blocks could. be removed. Defendant plead that the patent was void for want of invention,ill view of prior patentS,-one for a concrete foundation for a stone pavement without joints, with removable panels; one ,for acombination for a pavement, but. not covering any method oUay.ing the SUbstance; and one for laying strips of wood across the bed prepared for the concrete, and spreading the concrete over them, but not providing for forming blocks 1 PATENTS FOR !:NvENTIONS-INPRt:NGEMENT-"CONCRETEPAVEMENTS.
v.33F.no.4-19