Page:Federal Reporter, 1st Series, Volume 7.djvu/216

204 is, perhaps, rather misleading. The true question always is whether the defendant uses, anything which the plaintiff in- vented. In this case, the plaintiff first united the finger and jack when they were placed horizontally; but the defendants had already united them, for a similar use, when vertical. The whole emphasis, therefore, of the plaintiff's claim is on the word "horizontal." Now, whatever may be the advantages of this horizontal position in the defendants' jack and finger, and whether they took it from the plaintiff's patent or not, they may lawfully take it, because it was old at the time of the plaintiff's invention.

I cannot frame an argument which will sustain the broad claim of the plaintiff to a horizontal finger positively connected to a jack so as to aid its fall, which would not sustain a re-issue by the defendants, in which they should claim the positive con- nection, generally, between jacks and fingers, by which the finger should aid the jack to fall; and as the rights of the parties do not depend upon their skill upon and diligence in re-issuing their patents, but upon priority of invention,, I cannot hold that there is any infringement of the plaintiff's invention. If there is any infringement of his claims they are void.

Bill dismissed, with costs.

CROMPTON, v. KNOWLES and others

(Circuit Court, D. Massachusetts. April 18, 1881)

1. PATENT SHUTTLE-BOX, MECHANISM FOR LOOMS ALTERNATIVE DEVICE PATENTABILITY.

Compound levers, with slot add pin connection to permitʻ shifting of the fulcrum, being old, the substitution of in connecting rod for the slot and pin, held, to be a mere alternative device, and not patentable.

2. SAME-INFRINGEMENT-"KNOWN SUBSTITUTE "COLORABLE VARIATION"

The true test of infringement is the use by the defendant of anything which the complainant has invented,, which includes mere colorable variations of his invention.