Page:Federal Reporter, 1st Series, Volume 10.djvu/300

 288 FEDERAL REPORTER. �revived it. It appears that the defence had very able and diligent counsel, and no doubt the plaintiff was well advised. If the suits were voluntarily withdrawn by the plaintiff 20 years ago, it must probably be that the Baldwin wheel was thought by both sides to be fatal to the Atwood patent. But it seems, from the undisputed testi- mony of the patentee himself, that all the defendants, in every action which he brought, took licenses from him, and that the same per- sons, or moat of them, vainly opposed the extension of his patent. Waterman, then, was mistaken, if he used the word "withdrawn" in the sense of abandoned. It was the defendants who withdrew. This makes it almost res judicata, so far as those parties are concerned, that the Baldwin wheel was not an anticipation of Atwood's, and, in the uncertainty of the evidence which arises from the great lapse of time, has had a oontrolling influence on my decision. 1 cannot hold that the parties at the time, and the patent-office afterwards, with all the facts before them, were mistaken. It is more probable that there is some mistake in the evidence now. �The Kiusley wheel appears to have had two arches instead of an arch and a plate — that is, there was a hollow under the tread of the wheels as well as near the hub; and, upon the evidence, there are objections to this form. �Atwood having been the first to make the combination of hub, arch, and plate, has a right to ask for a someWhat liberal construc- tion of his claim, and may include in it the wheel made by the de- fendants. �Decree for an account. ��� �