FEDERAL REPORTER.
weight, except as it is confirmed by others. I think, upon the evidence. I ought to layout of the case the alleged use in Philadelphia and Hartford. Moore returned to Windsor in the autumn of 1l:l61, and four witnesses are called to prove that he used, and lent to others for use, a wrench like that of the patent. before October 1. 1862. It is very difficult for witnesses to fix within a month or even a year the exact time of an occurrence of no tance to themselves, to which their attention is called after the lapse of 16 or 17 years. This difficulty. inherent in the subject, must be fully overcome by one who assails a patent. Another question which always arises is whether the use was within the limits of a justifiable test or experiment. I have read the evidence with great care, and am satisfied that Moore did not make a wrench for sale until within two years before his application. As the value of his invention was not for his personal use, as is often the fact with manufacturers who improve a machine used in their particular business, so much as for the sale of the tools or the royalties, I consider this fact very important. The chief witness to prior use, E. F. Spaulding, gives a deposition which is clear and candid; but he had told one of the plaintiffs. a very short time before he testified, that he had no means of fixing the date. and could not fix it. This he very fairly admits, and he does not explain how his memory has been refreshed. Besides, the evidence of this witness. while it is not wholly consistent with itself upon the other point, yet leaves upon the mind an impression that the use which he testifies to was experimental. Such is the fair result of his evidence at pages 235 to 237 of the record. And so of the only other witness whose means of knowledge were considerable, Edminster. The point which the defendant takes as to the use by Edminster is that Moore permitted him to try the wrench in order to induce him or his father to take an interest in it, and help Moore in procuring a patent. .The witness so puts it. But I consider it too nice a point to say that the future patentee, when he permits a person to test his tool by a short use with a view to interest him in its being patented, is not testing his tool, but only the
DUNBAR
ALBERT FIELD TAOK
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643
mind ··of the borrower. I do not know that an inventor is bound to satisfy his own roind alone by his experiments. The question to be determined is not only whether the tool will ,work, but in what modes and with what advantages over old tools; how well it will work and how cheaply; and I am of opinion that he may, in such a case as this, test not only its patentability, but the degree of it, if I may so say; that. is, whether it.is worth while .to patent it. I must not be understood tlsspeaking of a case in which the tool or thing patentfjd has been sold 1lI0re than two yeara before the application. Decree; !or the complainants.
DUNBAR and others
ALBERT FIELD TAOK Co. and others.
(Oircuit Oourt, D. Ma88aOhusettl. --,1879.) 1. PATENTS Nos. 90,902 AND 164,839, for improved cut shoe nails, helrJ valid, and infringed by the" cub" nail. 2. INVENTION-PATENTABILITY.--The addition of corrugations to a specific kind. of shoe nails is patentable, although shoe nails had been previously corrugated.
In Equity. LOWELL, C. J. This suit is brought upon two patents granted to Hosea F. Whidden, one of the plaintiffs. No. 90,902. dated June 1, 1869, is for a cut shoe nail having a round frustro-conical head, a tapering shank, and serrated corners or edges; the point of the shank being cut thin so as to clinch readily when the nail is driven against what is called the armored last. Patent No. 164,889, dated June 22, 1875, is for an improvement upon this nail by making the head longer, the mode of making it being fully described. It has been held by Judge Shepley that this nail does not infringe the patent granted to Estabrook, No. 85,374, dated December 29, 1868, that not being a cut nail, and not having a head. Estabrook Dunbar, ·10 O. G. 909. It is said
