Page:Federal Cases, Volume 29.djvu/567

 [29 Fed. Cas. page 663] (Case JiTo. 17,342) WEBSTER that such counsel had no knowledge or informa- tion of any description in any patent prior to the plaintifiPs, of a certain device: Held, that the motion must be denied. [Cited in De Florez v. Raynolds, Case No. 3,- Co., 2 Fed. 333; Spill v. Celluloid Manuf'g Co., 22 Fed. 97; Witters v. Sowles, 31 Fed. Ellas S. Higgins and others for infringe- ment of letters patent No. 130,961, issued Aug. 27, 1872, to William Webster for an im- provement in looms for weaving pile fabrics.] t Clarence A. Seward, for plaintiff. George Gifford, for defendants. JOHNSON, Circuit Judge. The answer in this case was sworn to on the 4th of Septem- ber, 1874, a replication was filed, and the com- plainant's proofs were taken and were closed on the 9th of October in that year. On the 30th of December; 1875, the defendants gave notice of the present motion to amend their former answer, by interposing two new de- fences. They seek to aver, on information and belief, that the complainant's alleged in- vention was in public use for more than two years prior to the application for the letters patent to Webster, and that the same is de- scribed in letters patent of the United States, granted to William Weild, dated January 13th, 1857, and numbered 16,415. • The only excuse offered for the omission to insert the first of these proposed defences in the original answer is found in the affidavit of the defendants' counsel who prepared the an- swer, that, when he prepared it, he omitted to state the fact now proposed to be inserted, because he -was under the impression that the suit was subject to the law as it stood prior to the patent act approved July 8th, 1870. He does not say that his impression has since changed, although that may, perhaps, be in- ferred from his present motion; nor Is it ■claimed that the facts were not known at the time when the answer was interposed. If the suit is governed, in the respect hi question, by the act of July 8th, 1870, or by the equivalent provision of the Revised Statutes, and if the law is, that a public use in this country for more than two years before the application of an inventor for a patent, bars his right to a patent, or avoids the patent after it has been granted, irrespective of his consent to, or ac- quiescence in, such use, then I think that a party who wishes to avail himself of such a de- fence, ought, under all ordinary circumstances, to do so at the earliest opportunity. If he fails to do so, something more must be es- tablished than that he has been guilty of laches, to induce a court to excuse his neg- lect and allow so harsh a defence to be in- terposed. Nor do I think the defendants entitie them- selves to be now allowed to interpose the other defence proposed. The patent they seek to set up as an anticipation of the Webster pat- ■ent they owned for a number of years and until it expired. They must be taken to have known its specification and claims. Their counsel does not state that he was not ac- quainted with the patent, nor that he had not, before the answer was put in, examined and considered the specification. His statement falls very. far short of that. It Is, that, when he prepared the answer, he had no knowledge or information: of any description in any pat- ent ptior to the patent on which the suit is brought, of a cylinderwire motion sudi as is referred to ha the affidavits of Duckworth and Hicks. He does not say that he has any such knowledge now, nor give tiie court any rea- son to consider that he finds in that patent what the two affiants, Duckworth and Hicks, are understood to say they conceive to be de- scribed there. These persons also base their statements upon the ground of a particular construction to be put on a claim in the Web- ster patent, which the plaintiffs do not assert and have not asserted, and which seems to me quite incapable of bemg maintained. I am of opinion, therefore, that justice does not require that the amendment should be per- mitted to be made, in view as well of the laches which has occurred, as of the substance of the amendment itself. The motion to amend the answer must be denied. [For other cases involving this patent, see note to Webster Loom Co. v. Higgins, Case No. 17,- 342.] Case K"o. 17,343. WEBSTER LOOM CO. v. HIGGINS et al. [15 Blatchf. 446; i 4 Ban. & A. 88; 16 O. G. 675.] Circuit Court, S. D. New York. Jan. 14. 1879. fATENTS—SUFFICIENCT OP SPECIFICATrONS— COM- BINATION Claims— Aggregations— Pkior Use- Shifting BuiiDEN OF Proof— Pile Fabric Looms. . The letters patent issued 'August 27th, 1872, to William Webster, for an improvement in looms for weaving pile fabrics, are invalid. . In respect to the fifth claim of said patent, namely, "In combination, the lay and its rigid shuttle box, the pivoted vibrating wire tiough, the reciprocating driving slide, and the latch moving thereon, the latter being operated by the wire bos, the combination being and operating substantially as described," the descriptive part of the specification is insufficient. . The combination set forth in said fifth claim is not a patentable combination, but a mere aggregation of devices. . When a defendant has shown prior knowl- edge and use, the burden of showing prior in- vention is on the plaintiff. [Cited in Washburn & Moen Manuf'g Co. v. Haish, 4 Fed. 904; Thayer v. Hart, 20 Fed. 694; Kittie v. Hall, 29 Fed. 514; Electrical Accumulator Co. v. JuHen Electric Co., 38 Fed. 127.] . Webster was not the first inventor of the invention sought to be covered by said fifth claim. [Reported by Hon. Samuel Blatchford, Cir- cuit Judge, and here reprinted by permission.]
 * Page v. Holmes Burglar-Alarm Tel.
 * Rice v. Bge, 42 Fed. 660.]
 * [Bill by the Webster Loom Company against