Page:Federal Reporter, 1st Series, Volume 7.djvu/358

 346 FEDERAL REPORTER. �under the disadvantages resulting from these delays, and from the great loss of the assistance of the presiding justice — (1) Whether the original decree shall be reversed by reason of faots or arguments adduced at the rehearing; (2) if not, ■whether the master's report of profits shall be confirmed or modified. Allen 's original patent described a machine organ- ized to move a "die" against a "bunter," and by their contact to form a ftange or head upon the metallic cartridge, which was carried by the die. The defendant's machines brought a movable bunter against a flxed die. This was an improved form of the machine, and was, perhaps, a patentable improve- ment ; but it was the same machine, and was an undoubted infringement. This impxovement was invented by Allen him- self, but after he had obtained his patent, and when he asked for a re-isBue, he inserted in his description of the mechanism this modified and improved form. The commis sioner required him to disclaim this part of his description as a condition precedent to granting the re-issue. Judge Shepley held that the disclaimer did not prevent the patentee from enjoining the use of machines having this improvement. �It is now argued, and certainly with much force, that Leg- gett V. Avery, 101 U. S. 256, holds the patentee to this dis- claimer, as an estoppel. I appreciate the argument, but do not eonsider myself bound to reverse Judge Shepley's decis- ion, which I should not feel at liberty to do unless my mind were entirely satisfied that he was wrong. �No one can doubt that if a patentee obtains a patent upon his solemn admission of certain facts, he shall never there- after be permitted to controvert them. This is Leggett v. Avery. Judge Shepley, though giving his opinion before that case was decided, could not have overlooked this point. I under- stand him to decide that the admission in this case was not of a faet of invention, but of the propriety of inserting a cer- tain clause in the descriptive part of the specification ; and if this were not so, still, if the patentee's invention and his pat- ent rightly included this form, as an equivalent, it was a mere nullity, like an admission of law, to confess that it did not ��� �