Page:Federal Reporter, 1st Series, Volume 2.djvu/220

 OOLIiENDBE ». GBIFFITH. 218 �of the design patent is a claim to shape. The claim of the re-ÎBSued mechanical patent is a claim to a mechanioal com- bination. The shape of the structure may be the same as the shape in the design patent, but the subject-matter of the two claims is not the same. The shape covered by the claim of the design patent may be attained without foUowing the mechanical combination claimed in the re-issued mechanical patent. �It is apparent, from the evidence, that there is sufBcient utility and advantage in the structure with the broad side rails made of bevelled or inclined planes, in the way of cheap- ness of construction, as compared with a curved or ogee form, to support the patent. For the same reason the prior struc- tures, which did not have the broad side rails madeof bevelled or inclined p'ianes, but had them curved or ogee in form, are not an anticipation of the claim of the re-issued mechanical pat- ent. But the evidence of Daniel D. Winant and of Strong V. Moore is suffi cient to show the prior existence of billiard tables containing the combination covered by the plaintiff's re-issued patent. I refer to the bevelled tables which Winant says he repaired in New York, and which were imported tables, and were made like any other table, except that the broad rail was bevelled, the cushion rail projecting over the bed of the table, and the bed projecting over the frame. I refer also to the billiard tables constructed like the defend- ants' infringing tables, which Moore saw in New York nearly 50 years ago, the broad rail being a straight bevel, made of flat plank and veneered. These former tables appear to have gone out of fashion, and been replaced by the vertical-sided tables, and then to have corne into repute again. It is ap- parent, from the evidence, that in these former tables, so testified to by Winant and Moore, not only did the bevelled plane of the broad rails place the broad rails and the legs out of the way of the player's knee, but the arrangement of the broad rails with the cushion rail and the table bed was such that the table bed was properly supported, the cushion rail projecting over the bed. �I do not deem it necessary to refer to any of the testimony ����