Page:Federal Reporter, 1st Series, Volume 4.djvu/552

 538 FEDEBiti BBPOBTEB. �T. L. Livermore, for complainants. �B, F. Thunton, for defendants. �LowELL, C. J. As I construe the patent, it îs for an îm- provement in the manufacture of that class of whips which are turned in a lathe, and the whip-stock claimed isthe stock just before it goes into the lathe, or an improvement in the manufacture at that part of its progress. This last point is very important, because one Herrick is proved, without con- tradiction, to have made whip-stocks, with a wooden plug or backing, before 1870. Herrick did not finish his whip-stocks in a lathe, though they were fit for that mode of operation, and, if the second claim of the re-issue is for a turned wbip- Btock, it might, perhaps, be sustained. But the claim itself declares that the arrangement is "in order that the butt of the stock may be held and finished by a turning machine," and a statement precisely like this is made in an earlier part of the specification. That claim must, therefore, be held to have been anticipated by Herrick, and to be void. �The invention mentioned in the first claim was made in 1865, and was not, in my opinion, in public use or on sale more than two years before March 9, 1871, by reason of the manufacture at Charlestown; not on sale, because neither the invention, nor anything which embodies or would be likely to suggest it, is found in the completed whip; and not in public use, because the invention was tested in the only way in which it could fairly be tested, by making a few at the factory where the patentee was employed. �The law since 1870, as I understand it, has avoided a pat- ent, if any one has publicly used or has sold the same inven- tion, by whomsoever diseovered, for more than two years before the patent was applied for. The Herrick whip was certainly made before 1870, but I do not think it is proved to have been made before March 9, 1869. The precise date isleft in much doubt. �I do not find that this invention was anticipated. Spencer's evidence as to certain kinds of whips, of which hegives repro- ductions, is seriously contradicted by workmen referred to by him, as well as by others; and none of the whips, if they were ����