Page:Federal Reporter, 1st Series, Volume 3.djvu/341

 33e TBSEBAL BEFOBTJ^ �forma of skates. The skatea were used in this country to a considerable extent, and not infringed. �The patentee can no longer clàim the broad principle of bis invention of 1863, and the defendant insista that the judgments and decrees in England, and the acquiescence in this country, excepting in the single case above mentioned, must be understood to relate to the patent of 1863, and when that has expired the particular structure shown by the pat- ent of 1866 stands like a new invention, not acquiesced in, and not litigated. To some extent this argument is sound; but, it being shown by decrees and by acquiescence that Plimpton was the first inventer of the broad principle and mode of operation, there is not the slightest evidence to prove that he was not the first to make the particular application of 1866. Any defence which there might bave been to the latter, would probably have extended to the former, and there is testimony that Plimpton was the pioneer in both. �The defendant, Winslow, was employed by the complainant to make the skates to a large extent, and was familiar with their construction. In January, 1880, he obtained a patent, in which he refers to the complainant's patent as valid, ai-d disclaims ail competition with it, and claima a combination which, of course, is subordinate to the plaintiff's, and may or may not infringe it, tbough it is prima fade a patentable improvement upon it. He seems to have copied the plain- tiff's skate of 1866 in most particulars. The difference, which he emphasizes, is in the India-rubber spring, which he puts in a different place, where it acts as a cushion between the foot and the working parts of the skate. In this respect he goes back to the original form of 1863, a^nd perhaps he is wise in doing so. �It seems to me clear: (1.) That the complainant's patent of 1866 is not rendered void by his patent of 1863; the differ- ences in construction appear, on inspection, and on evidence as to the state of the art, to be patentable improvements. (2.) The defendant has borrowed most of the improvements of the patent of 1866, and infringes the first claim of that patent beyond any doubt. (3.) He infringed intentionally, hoping ����