CA:RNRlOK
v.
H'USSON.
the infrmging saw was sold; as the measure <$ompla.inint's damages or loss. Upon this basis the master has assessed -the dam. ages. He has taken the whole number of infringing saws made ,and sold by the defendant, and in view of the localities where the;:sales were made, the readiness and facilities of the complainant for supplying the market in those localities, and the strong probability,:therefore, that it would have supplied it, if it had not ,been Occupied by the defendant, has allowed the difference between the cost and prices as the aggregateamol}nt of the complainant's damages. We cannot say that this is unwarranted by the ,proofs. ' ",; , The exceptions are therefore overruled, the master's report is Con, firmed, and a decree will be entered for the damages reported, with costs.
C,\RNRICK'
and andther v.
McKESSON
and another.
(Cir-cuit (Jourt, L
.s. D, New Yor-k.
July 7, 1881.L:
LETTERS PA'l'ENT-DEFENCEOF PRIOR. PATENTS AND PuBLICA:TIONS::':"PLEADme m EQUITY UNDER REV., S'l', § 4920, SUBD. 3. _
The defences of a prien' patent or previous' description in a printed publication. specified in subdivision '3' of section 4920 of the Revised Statutes, must, in & suit in eluity, be set up in an answer and not in a technical plea.
J. A. Whitney, for plaintiffs. F. R. Betts, for defendants. BLATCHFORD,C. J. The 'purport and object of the plea in this case seem to be to put in evidence certain specified patents and publications which the plea alleges existed prior to the original patent sued on, and describe and show inventions and subject-matters embraced and contained in the reissue. These patents and pUblications are set up in the plea as showing that the reissue is not for the same invention as the original patent, "but embraces and contains" wha,t is found in such prior patents and publications. It does not fol,1ow tbatbecause what is found in the reissue is found in patents and publications which existed before the date of the original patent, the reissue is not for the same invention as the original, because, equa.lly well, what is found in such patents and publications may be found in the' original; and it is not alleged in the plea that what is so found in such prior patents and publications is not found in the original. It is true that the plea says that the reissue contains matter not known t:J, or invented by, the patentees at the date of the original, and m.at-
808
FEDERAL REPORTER.
ter shown in the prior patents ,and publications, but it does not ayer that the matter thus referred to is one and the same matter. So, really, the plea aims to set up the defence specified in subdivision 3, of section 4920, of the Revised namely: that the invention was patented or described in a printed publication prior to its supposed invention by the patentees. The clear purport of section 4920 is that such a defence must, in a suit in equity, be set up in an answert and not by a technical plea. The plea is overruled, with costs to be taxed, but the defendant may answer the bill in 30 days on payment of such costs.
CRANDALL and others v. RICHARDSON and others. (Ctrcuit Court, S. D. New York. 1. February 23,
1881.)
REISSUE No. 4,223-CHILDREN'S CARRIAGES-NOVELTY-V A.LIDITY. Reissued letters patent No. 4,223,_ granted January 3, 1871, to William
E. Crandall, for children's carriages, held fJoid for want of novelty as to ji;rst, and anticipated as to second, third, and flfth claims.
2.
SA.ME-SAME-,ANTICIPATION.
Complainant's riding device, consisting of two profile frames representing horses, mounted on rockers, connected together with a seat, so as to allow the feet of the rider to extend downwardly between the frames, with r. hinged toy-box in front of the seat, serving to hold the child in place and as a receptacle for its playthings, held, anticipated by the Brown devices-one consisting of side frames representing a horse, terminating in rockers below and connected together with a seat and foot-board, allowing the feet of the rider to extend downwardly between the frames, joined in front and rear by two vertical boards, one having extoding from the front a profile horse-head, and from the rear a profile of a flying horse-tail; the other consisting of two solid frames representing an eagle or swan, continuous to and terminating in rockers below, with a seat connecting the framcs together and a toy-box in front to keep the child from fallir.g out. 3. SAME-SAME-MoDIFmD FORM.
Whether the frames are the profiles or outlines of horses or are solid, or whether they are in the form of horses, eagles, swans, or of any other bird or animal, is a matter purely of taste or design, and, so far as any mechanical effect or result is concerned, is of no importance. 4. DEFENCE OF PRIOR USE-DOUBTFUL EVIDENCE-SUCCESS OF LATER DEVICE NOT CONCLUSIVE.
In a defence of prior use it is often a controlling circumstance, where there is doubt in the proof, that, considering the success of the later device, if it had been made previously it would have attracted the attention of the trade .and immediately have gone into use; but it often happens that from various fortuitous circumstances a complete invention, in a branch of business where much depends on energy and facilities and capital, fails to attract that attention which, under different and better auspices, it receives when independently produced at a later day.
