Page:Federal Reporter, 1st Series, Volume 8.djvu/337

 GOTTFRIED V. CONKAD SEIPP BBEWING CO. 323 �Two defences are set up: First, that the patent is void for -want 6f novelty; and, second, that the defendant does not infringe. This patent has been before this court and the United States circuit court for the eastern district of Wisconsin, and nearly all the testimony in this record, on the question of novelty, was fully discussed and passed upon in those cases. I do not propose to re-examine the testimony bearing upon the question of novelty, as this case must, in my opinion, be disposed of upon the question of infringement ; ii the defendant does not infringe the complainants' patent, there is no occasion for discussing the question of novelty. The defendant uses one machine construeted substantially after the specifications of the complainant's patent, but insists that it was purchased of the com' plainant Holbeck, and is used under a license from him. It is admitted that a machine viras purchased by the defendant from Holbeck, but the complainants deny that this is the machine so purchased, because it is claimed that the essential working parts have been -wora out and replaced with new parts; that the blower, pipes, and body of the furnace are renewals, and that the only parts of the old machine which remain are the ash-pit and top of the furnace. �From the functions of the different parts of this machine it is obvi- ous that some of them will wear out much f aster than others, and I think there can be no doubt that the defendant has the right to re- place those parts as often as necessary, so long as the identity of the machine is retained. The proof in this case shows, to my satisfaction, that as the grates, pipes, and blowers were worn out, they were re- newed, and therefore the identity of the machine is retained. If, for instance, this patent had been upon a peculiar grate, and there had been no patent upon the other parts of the machine, when the grate was worn out the defendant would have no right to put in another like it, because the grate was covered by the patent ; but if the grate is only a part of an entire combination, I think it has a right to replace the worn-out parts, and it cannot be said to be a different machine. Chaffee v. The Boston Belting Co. 22 How. 217; Wilson v. Simpson, 9 How. 109-124. �It is also admitted that the defendant uses what is known in the trade as a "Krausch machine." This machine is construeted upon what seems to me a substantially different principle from that of the complainants. The complainants' invention operates by driving a blast of air by means of a blower through a bed of ignited coals into ��� �