Page:Federal Reporter, 1st Series, Volume 4.djvu/240

 226 FEDERAL BBFOBTBR. �some partieulars. It contains a boit and a devis, by -which the sole is attached to the shoe, and is made removable sim- ply by witbdrawing the boit, as in plaintiff's invention. It is quite obvions, however, that it was not intended as an in- fringement or evasion of the plaintiff's patent, and that the object of the device was to render the sole reversible, so that when worn upon one side it could be taken off the shoe and turned upside down. �Whether it be an infringement of the plaintiff's first claim depends upon two questions: First. Does the sole have a lat- eral rocking movement on the shoe for the purpose specified, viz., to accomodate itself to the bevel of the wheel? Second. If this resuit is produced, is it produced by means used by the plaintiff, or by a mechanical equivalent thereto ? �Whether the defendant's device has the lateral rocking movement must be determined as a question of fact, and by an actual inspection of the deviees, one of which, as well as a model, is made an exhibit in the case. The model cer- tainly contains no possibility of such a rocking movement. The sole is firmly attached to the shoe — as firmly as if it were bolted to it, as in the Michigan Central exhibit. Plaintiff, however, claims that this is not a fair representation of the shoe used by the defendant. On an examination of the iron shoe actually employed upon the defendant's cars, I am satisfied that if there be any rocking movement at ail it is due to a slightly imperfect construction, or to wear, and that in either case it does not sufficiently answer the purpose of the plaintiff's patent. In a case of this kind, ■where it is obvious defendant's device was invented for an entirely different purpose, and was not intended as an evasion of the plaintiff's patent, the infringement, if any exists, being purely accidentai, it seems to me the evidence of actual infringement should be so clear as to admit of no other rea- sonable construction. If, upon the other hand, I were satis- fied that an evasion was attempted, I should be disposed to resolve any doubts I might bave upon the question of in- fringement or mechanical equivalents as favorably as possible for the complainant. ����