Page:Federal Reporter, 1st Series, Volume 1.djvu/208

 300 FEDERAL REPOliTER. �patent, it was a use of roUs, one or more, at a stage inter- mediate the first and second grindings. Counsel were under- stood to say that the interjection of such rolls at any one of these successive stages was within the terms of the pat- ent. The importance of that, if the testimony is understood, relates to the question of infringement. �There was a controversy «at an early stage of this case, growing out of the transactions betweon Downton, Allia à Co., of Mihvaukee, and 'Jiis defendant, Yaeger. Judge Dillou and mysolf disagreed in opinion with regard to the effect of the paper transactions involved, but his ruling with regard to the matter was necessarijy the ruling in the case. ïïe liold that if there was an infringement of this patent then the de- fendant must answer, except as to the two chilled iron rolls interposed between the lirst and second grindings accordingto the terms of the patent, because Allis & Co., who were to some extent assignees in this matter, made those rolls ac- cording to Downton's description, Downton himself superin- teuding the whole matter and putting them in the mill; the contention being on the part of Downton that lie informed these parties who had bought these rolls, which came under a subsequent patent, that whilst lie put them in thcy must give him a royalty under his process patent, and hence any use of the rolls by those parties did not exonerate them from a royalty therefor. Judge Dillon and I concurred as to those two; said they were supposed to have beenput there for some purpose. They were put there by the plaintiff, and under his very patent, and if it is said that they were put there mereiy to clog the machinery and for nothing involving a purpose, such a proposition cannot be maintained. �Now the court is brought, for the purposes of this case, to the construction of this patent. It bas been read and reread very carefuUy. If there is anything in it that is patentable, and involves novelty, it is not the use of rolls at evcry stage of this process — for ail the Minnesota mills had been using it before, and in Europe and Missouri the same thing had been practiced for a long series of years — but it was the interjec- tion of rolls between the first and second grindings, whereby ��� �