Page:Federal Reporter, 1st Series, Volume 6.djvu/743

 MARKS V. FOX. 731 �down, but remain, and the protector swings as on a pivot. It may also be true that, under certain circumstances, the strip of muslin between the protector and the cap, in the defend- ants' caps, acts to guard against ail danger of the admission of wind or rain between the protector and the cap. But this, too, is at most an improvement. The defendants' caps con- tain ail the arrangements found in the plaintifi's cap, oper- ating in the same way and producing the same resuit. They contain ail the features of difference which distinguish the plaintiff's cap from the old double-band cap and the old turn- over single-band cap. The defendants' caps infringe ail the claims of the re-issue, Division B. �It is contended by the defendants that they have shown, by evidence, that caps like the plaintiff's cap, and caps like the defendants' caps, existed before the plaintiff's invention. The evidence is very voluminous. A careful examination of it leads to the conclusion that the defendants have faiied to make out this defence. Not a cap is produced which is claimed to have been made before the plaintiff obtained his patent. Everything depends on the recollection of dates and structures, and on the reproduction now, from memory, of copies of what are alleged to have been pre-existing struc- tures. The testimony produced on the part of the defendants is either defective or insufficient as given, or else is success- fuUy rebutted by the plaintiff, either directly, or by showing, from the knowledge of persons in the trade, that it is impos- sible that the claimed prier structures should have existed. The double-band cap and the turn-over single-band cap are the only caps, the prior existence of which is successfuUy proved, and they do not meet the plaintiff's patent. The claims of that patent contain patentable inventions. �Sundry objections to testimony, made by the plaintiff on the record, are insisted on and must be passed upon. The evidence of Elias Eosenswig as to prior use in Baltimore is ruled out, because such use is not set up in the answer. None of the other objections are sustained. �There must be the usual decree for the plaintiff. ��� �