Page:Federal Reporter, 1st Series, Volume 7.djvu/226

214 mode to bring the scales within the stipulation. They were ordered of the defendant for the purpose of making evidence, and were by him procured of the manufacturers about the time that the stipulation was made, and are not, in my opin- ion; fairly within its scope. In No. 4 I am of opinion that the varnish alone is colored. In No. 3 I discover Tucker bronze, and the sale of articles like this exhibit I find to have been made, and to infringe.

The able argument for the defendant requires me to say a word upon the law of the case. No question of novelty or patentability is left open by the agreement, excepting the validity of the re-issue as a re-issue. The original patent was for the process of making a new kind of bronze, and was re-issued in two parts, one for the process, and one for the new article. The new patent for the process was sustained by Clifford, J. Tucker v. Tucker Manf'g Co. 100. G. 464. The present patent for the product was upheld by me on a motion for an injunction in this case, on the authority of the Goodyear cases. See Goodyear v. Day, 2 Wall. Jr 283; Goodyear v. Railroad, Id. 356; 2 Cliff. 851; Rubber Co. v. Goodyear, 9 Wall. 798. Council at this hearing have cited Powder Co. v. Powder Works, 98 U S. 126, in which it was held that a reissue for the compound of nitro-glycerine with certain other substances was void, because the original patent was for a process of exploding nitro-glycerine. The case is carefully distinguished from the Goodyear cases. "If," says Mr. Justice Bradley, "the patent had been, not for the mode of exploding nitro-glycerine; but for the process of compounding nitro-glycerine with gunpowder and other substances, inadvertently omitting to claim the exclusive use of the substances so produced, the case would have been one of very different consideration." Page 136. He then shows that this last was the case of Goodyear. It is also precisely this case. Bronzed iron is the necessary product of the process of the original patent! I may fail to see the difference between the Goodyear and the Powder cases, but I must accept the decision that there is a difference," and must apply the law accordingly, as well as I may."