Page:Federal Reporter, 1st Series, Volume 4.djvu/560

 646 FBDEBAIi BEFOBTEB. �pany, ante, 543, has been reargued, as has also that case itself by written briefs, and this opinion will serve for both cases. �In that case I decided that Whidden's patents for improved eut shoe nails, No. 90,902 and No. 164,889, were valid, and were infringed bytbe nail now before me, called the "cub" nail. The defendants act under the Estabrook patent for an improved screw-peg for shoes, 'which was decided by Judge Shepley to be valid upon the construction which he gave it, construing the invention somewhat narrowly in order to pre- serve the patent, but holding that it did not cover the plain- tif 's patented eut shoe nails. Estabrook has not confined bis manufacture wholly to the nails which he patented, but has made, besides those, one which was an admitted infringe- ment of Whidden, and one other which I decided to be so. This he did, hoping that Whidden's patents would be declared void. �Both questions have been reargued : whether the Whidden patents are valid, and whether the "cub" nail infringes them. �A considerable part of the argument and of the afBdavits relies on a sapposed opinion of Judge Shepley in the case already mentioned, in which the parties were reversed, {Estabrook v. Ditnbar, 10 0. G. 909, 910;) the defendants fearing that I may bave overlooked Judge Shepley's expres- sions on this aubjeet, and more particularly what he said about the Field nail. He there said that the nail of Whidden (now the plaintiffs' nail) was "searcely distinguishable, except in form, from the Field nail, so called, and other tapering and corrugated nails which were in common use. So far as the defendants' (now plaintiffs') nail differs in form from nails which were old, it is merely an attempt to improve upon the form of the old corrugated tapering eut shoe nail." �These remarks are said to bave guided the defendants in assuming that Whidden had merely "attempted" an improve- ment on the Field nail, and in acting accordingly. �No one has a higher estimate than I bave of the value of Judge Shepley's opinion. Upon such a question of fàct, involving mechanics, I consider it much better than my own. But the remark is obvious that in that case he had no occa- ����