Page:Federal Reporter, 1st Series, Volume 6.djvu/411

 UNION PAPER BAG MACHINE CO. «.ATLAS BAO CO. 399 �Wliether the introduction of this claim into the re-issue of the patent, where it is first foTind', was improper, need not be con- sidered. From what has been said it is plain that whatever ■would constitute an infringement of this elaim, wolild alsobe an infringement of the second; and that ■whatever wonld anticipate thelaeter, wonld also anticipate the former. ; The proofs show, quite satisfactorily, that a device to facilitate the manufacture of paper bags, substantiallyidentical in con- struction, form and manner of use, with that described by the plaintiff's second claim, and consequently the exact equiva- lent of that described in the fifth, was construeted and used, more than tvsro years prior to the application for the Howlett and Kirk patent, and nearly as long before the invention, described therein, was made. This feature of their combi- natjion, or tool as they denominate it, was not, therefore, new. That it may have been invented by Miss Kirk, is unimpor- tant. Granting it to have been, it follows that it was not the joint invention of the patentees. Embracing it in their pat- eutj did not, therefore, confer upon them a right to its exclu- sive use, exeept in the particular combinatibn therein de- scribed/ It 18 not even clear that the invention was original ■«vith Miss Kirk; and if it was, it is not clear that the use which she permitted to be made of it, would not have for- feited the right to a patent even in her own name, at the time the patent here involved, was applied for. As this view of the case disposes of it, an examinationof other questions pre"- sented by the def ence, is unnecessary. �The bill must therefore be dismissed. A deeree will be entered accordingly, with costs. ��� �