Page:Federal Reporter, 1st Series, Volume 6.djvu/739

 MARKS i'. FOX. 727 �to decree, not one of the patents alone, but both to be void, «,nd adjudged accordingly. �Upon the whole case, I am of the opinion that the mot;on of the complainant must prevail, and the cross-bill be dis- missed; but, under the circumstances, without costs. ���Maeks V. Fox and another. �Marks v. Schwartz and another. �(Cvreutt Court, 8. D. Neto York. Deceqiber 10, 1880.) �1. Re-Is8ttb No. 7,808— " Impkovement in Caps." �lie-issued letters patent No. 7.808, division B, for an " iraprove- ment in caps," does not contain new matter, and is not broader than, and, for an invention, di&erent from, that described in the original patent. �2. Pkiob Use — Bvidencse. �Evidence of prior use is inadmissible when such lise is not set up in the pleadings.— [Ed. �Frederic H. Betts and C. Wyllys Bctts, for plaintiff. �Gilbert M. Plympton, for defendants. �Blatchpoed, C. J. These suits are f ounded on re-issued let- ters patent No. 7,808, Division B, granted to the plaintiff July 2e, 1877, for an "improvement in caps,", the original patent having been granted to him August 3, 1875. The specification of the re-issue, embracing what is outside and what is inside of brackets, and exeludjng what is in italics, says : "Figure 1 represents a side view when the [swinging] car and neck protector is pulled down. Figure 2 is a verti- cal central section when the ear and neck protector is up. Similar letters indicate corresponding parts. This invention consista in an ear and neck protector connected to the back part of the crown of a hat or cap by a tape [ox doth] and to its [the] sides [or near the front of the hat or cap] by loops and buttons, or other equivalent f astenings, in such a manner that, whenever it may be desirable, said protector ci^n.bo ��� �