Page:Federal Reporter, 1st Series, Volume 10.djvu/493

 HAMMEESCHLAG V. GAERETT. 4:81 �" The method hei'ein set forth of makirg waxed paper, consisting of spread- ing the wax upon the surface; heating the paper from the opposite side to spread the wax into the fabric of the paper; removing the surplus wax, and remelting and polishing the wax upon the paper, — substantially as set forth." �Construing this claim to be one for a process, as has been done, everj successive step enumerated, must be regarded as an essential part, and must be employed by the defendants to render them liable to the charge of infringement. The first ("spreading the wax upon the surface of the paper substantially as set forth") certainly is not employed by the defendants. The paper is not "moved over and in connection with the heated oylinder which acts to spread the wax" upon it ; nor is the wax spread upon it by any similar or equivalent means. It is not, indeed, in the sense here contemplated, spread upon it at all. The paper is simply dipped into the wax and as much of this substance taken up as will adhere, — not upon one side simply, but upon both. This omission of the first step in the plaintiff's pro- cess, plainly distinguishes the defendants '"from it. That such omis- sion would have such effect seemed to be fully conceded on the argu- ment for injunction, by the plaintiff's expert and his counsel. In speaking of the Anderson patent, then set up in anticipation, this witness said : �"The mode of operation there is different, being that of submerging the fabric or a portion thereof in the liquid, on its way througti the machine. The Anderson machine does not contain the same subject-matter of the first claim, because it has no heated cylinder revolving within the trough contain- ing wax, and acting to beat the same and apply it to the paper. Por the same reason it does not contain the method specifled in the second claim, the first step of which consists in transferring the melted wax from the trough to the paper by a roller or cylinder. For the same reason it does not contain the combination specifled in the third claim, and for the additional reason, that it contains no means, after the wax has been applied to one surface of the paper, for heating it at the other surface to draw the wax in. Finally, it does not contain, for the same reason, the method claimed in the flfth claim." �That this witness may now express a different opinion is not im- portant. The plaintiff's counsel, in distinguishing the Anderson machine from the plaintiff's, adopted and enforced the same view. That it was also adopted by the distinguished judge whose leading we followed in granting the injunction, is rendered clear by what he said in disposing of the motion for attachment against Scamoni, on September 27, 1881. We quote his language: V.10,no.4— 31 ��� �