Page:Federal Reporter, 1st Series, Volume 6.djvu/521

 WABINO ». JOHNSOS. 509 �claim of the plaintiff's re-issue is identical with the second, for the reason that the word "pombination," and the words, "so united," in the first claim, can have reference solely to the mode described in the specification of uniting the two checks and the stub leaf by making them in one piece, and folding the checks in on the stub leaf in the center, the stub leaf alone being attached to the back of the book. This view is not tenable. The only object of any union between the check leaves and the stub leaves is to retain the check leaves as integral parts of the book until they are detached. Until such detachment the combination and the union exist. Such union and combination in both the plaintiff's book and the defendant'a book take place at the perforated Unes; and it makes no difference whether the perforation between the check and the stub leaf is at the top or bottom of the stub leaf, or at the left end of the cjieck. In either case the characteristic features of the plaintiff's book, embodied in the first claim of the re-issue, resuit in view of the state of the art before set forth. If the defendant'a book had been de- scribed and shown in a patent granted to him when the plain- tiff's original patent was granted, and if afterwards the plain- tiff's book had appeared.the latter would.inview of the state of the art before set forth, have infringed a claim in that patent, worded as is the first claim in the plaintiff's re-issue. Un- der the foregoing views as to the proper construction of the first claim of the plaintiff's re-issue, it does not relieve the defendant from infringement that in his book the checks are not printed on the same sheet with the stub leaf, and are not folded over at the perforations, and that the top and bottom of the stub leaves are not attached to the checks. �It results from the foregoing views that the charge of in- fringement is made out, and that neither what is claimed in the first claim of the plaintiff's re-issue, nor what is found in the defendant's book as infringing that claim, is shown to have existed prior to the plaintiff's invention. �The answer sets up as a defence that the specification and claim of the plaintiff's- re-issue cover a larger improvement ��� �