Page:Federal Reporter, 1st Series, Volume 7.djvu/790

 778 FEDBBAL EEPOBTEB. �the weight of the testimony sustains the eomplainants' con- tention. It will be observed that this is not a contest between Tyler & Eussell as to whicb firat made the invention, although it would seem from the drift of the defendant's evidence that Buch was hia impression. �In a suit for infringement the paterit aot allows, as a defence, anticipation by other letters patent, or by a printed publication ; and when the former is set up the complainant is permitted to show, if he can, that the date of the actual invention was older than the date of the contesting patent; but no emphasis is laid upon the inquiry into the time when the inventor of the alleged prior patent first made bis inven- tion. The date of the Bussell patent is October 12, 1858, What evidence bas been adduced to show that Tyler's inven- tion was prior ? �William H. Tolhurst, an experimental machinist, model and pattern maker, says that in the first part of the year 1858 he bullt patterns for a full-sized harvesting machine for Mr. Tyler from drawings that had been made in 1857; that early in 1859 he constructed a model from these patterns — the model patterns and drawings all containing the solid frame on which the intermediate gearing between the driving- wheels and cutting apparatus is mounted — and which is the device that the defendant charges Tyler with incorporating into his, machine from Eussell'B patent. The witness testifies that he bas no interest in the pending controversy, and his testimony is as olear and reasonably definite as could be expected from one who is speaking of transactions which took place 20 years before. He is substantially confirmed in these dates by other witnesses for the complainaiits, to-wit : Moorse, Marsh, McFarland, and Eoss. �But, in addition to this defence of a prior patent, the de- fendant also sets up the patentee Eussell as. a person who had prior knowledge of the invention covered by the Tyler patent. What was the character and extent of his knowl- edge as "shown by the eyidence ? Eussell was called as a wit- ness by the defendant. Having his attention called to his letters patent No, 21,777, granted October 12, 1858, and to the specifications, wherein they state : "A representa the ��� �