Page:Federal Reporter, 1st Series, Volume 6.djvu/89

 riSCHEB V. HAYES. 77 �Charles F. Blahe, for plaintiff. �James H. Whitelegge, for defendant. �Blatchfoed, g. J. This suit is founded on letters patent No. 74,068, granted to the plaintiff February 4, 1868, for an "improvement in machine for forming sheet-metal mould- ings." The patent was before this court in Fischer v. Wilson, 16 Blatchf. 220, and was there adjudicated upon. In that case it was held that the defendant had infringed claims 2 and 4. The novelty of claims 2 and 4 was attaoked. Claim 4 is in these words : "4. Arranging the female die. G, above the maie die, E or F, for the purpose of keeping the female die clear, as set forth." It was construed to be a claim to the described arrangement of the two dies, so that, having Buch a lower maie die as B or F is, the female die shall be above the maie die, and thus be kept clear, resulting in keep- ing both dies clear, instead of having the female die below, in a position to be clogged and mar the work, even though the upper maie die should clear itself ; and it was held that the lower maie die must be so made and arrangea as to afford no chance for the collection of dirt that would destroy the perfection of the work. Even though the female die is placed over the maie die, yet the Fischer invention is not found if the maie die has concavities or surrounding hollows in which dirt or foreign matter can collect. With that view of claim 4 it was held, in the Wilson case, that nothing was shown which affected the novelty of that claim. Various patents were introduced on the question of novelty, with other evi- dence. One of these patents was the Worthen and Eenwick patent, referred to hereafter. It was held that nothing which was shown affected the novelty of claim 2 or claim 4. �In the present case several questions are raised which were not brought up in the Wilson case : �(1) As to the objection that the replication to the answer was not filed until after the time prescribed in rule 66, and that then it was filed without prior leave of the court, and that the plaintiff's proofs were taken after the expiration of three months from the time the replication was in fact filed. ��� �