Page:Federal Reporter, 1st Series, Volume 6.djvu/92

 80 PEDEBAL REPOIiTEB. �allege any license or consent. It is objected that the plain- tiff bas not proved want of consent. This was net necessary. It was for the defendant to prove consent, if anything needea to be proved on the subject. �(6) The apparatuses testified to by Philip Barkel, Axel Schiermacher, and John E. Hopkins have no bearing on the plaintiff's patent. They are not alluded to in the brief for the defendant. They show no organized machine with a concave upright standard, on the top of which a maie die is placed, and they show no maie or female die, and the defend- ant's expert, Mr. Eenwick, gives no testimony in regard to them. �(7) The machine testified to by Eistine and Brand was a corrugating machine, and was incapable of making the structure shown in the drawings of the plaintiff's patent. It is not shown ever to have been used in bending a square angle in sheet metal. It is not shown to have been ever used with only two dies at a time, — one above and one below, — with the lower die arranged as in the plaintiff's machine. The testimony given by Eenwick and Eistine as to the machine, and the model of it, was properly objected to on the ground that the use of the machine was not set up in the answer. �(8) As to the Peltier patent, Mr. Eenwick admits that a change would have to be made in the apparatus shown by figure 10, in order to do the work shown in the drawings of the plaintiff's patent. It is plain that this change is mate- rial. It is also olear that figure 8 dues not show an appara- tus anticipating claim 4 of the plaintiff's patent, and that figure 10 does not show an apparatus anticipating either claim 2 or claim 4 of that patent. �(9) Tho Byrne book, pages 186 and 187, does not show the plaintiff's invention as to either claim. �(10) The only defence on the question of novelty, pressed with any force, is the alleged prior use, in such a way as to anticipate the plaintiff's patent, of a machine made under the patent to W. E. Worthen and H. B. Eenwick, before referred to. That patent was granted July 5, 1859, for an "improve- ��� �