Page:Federal Reporter, 1st Series, Volume 7.djvu/735

 ■WOVEN WIBE MAITEE8S CO. V. 8IMM0NS. Tiiu' �plainant, Whether it was so or not may be a question, but one which it is not necesaary now to determine. �It is further suggested that the complainant bas lain by for several years, -whilst the defendant bas been publicly using bis own label, and bas tbus acquiesced in its use. To this suggestion it may be proper to reply that the complain- ant had a patent for the article of bluing, whicb he was prosecuting and endeavoring to substantiate, but in which he finally failed. His failure to establish his patent (which would have covered all his rights) ought not to preclude him f rom falling back on Mb right to the trade-mark. No essen- tial delay bas occurred since the termination of the proeeed ings on the patent. But, at any rate, an acquiescence in Kellogg'g use of his own label was no acquiescence in his use of the new and altered label having Sawin's name in the caption. �We think the case is with the complainant, and that a decree sbould be made in his favor. Let a decree be made accordingly. �Note. 8^ SaMyer \. Eorn, 1 Tbo. Rxp. 2L ���WovBN WiRB Matteess Co. V. SiMMONB aud another. �[Circuit Covrt, E. D. Wiscongin, June 14, 1881.) �Re-Isstted Lbttbrs Patent No. 7,704— Improvbment ik Bkdstba» Fkaues. �In re-issued letters patent l^o: 7,704, granted to the complainant for an improvement in bedstead f rames, ?i,dd, that the flrst claim, when considered in connection with the specifications, must be constrned tomean a combination of side bars, inclined double end bars, and elastic coiled wire fabric attached only to the end bars, with the end hars oi the frame elevated abovp. the side bars, so that the fabric will he suspended above the side bars, from end to end, of the frame ; and that the second claim, in its reference to end bars, must be construed to mean iuclined double end bars. �As the end bars of defendants' bed bottom are not inclined ; and in view of the further f act, to be considered in the same connection, that ��� �