Page:Federal Reporter, 1st Series, Volume 8.djvu/822

 808 FEDSItAIi EEPOBTEB. �ter shown in the prior patents juna publications, but it does not aver that the matter thus referred to is one and the same matter. So, really, the plea aims to set up the defence specified in subdivision 3, of section 4920, of the Kevised Statutes, namely : that the invention was patented or described in a printed publication prior to its sup- posed invention by the patentees. The clear purport of section 4920 is that such a defence must, in a suit in equity, be set up in an answer, and not by a technical plea. The plea is overruled, with costs to be taxed, but the defendant may answer the bUl in 30 days on payment of such costs. ���Cbandall and others v. Eichardson and others. {Circuit Court, S. D. New Y<yrk. February 23, 1881.) �1. Reissub No. 4,223— Children's Carkiagbs— Novelty— Validiti-. �Reisaued letters patent No. 4,223,. granted January 3, 1871, td "William E. Crandall, for childreu's carriages, held void for want ofnovdiy as to first, and anticipated as to second, third, and fifth claims. �2. SAMK— SaMB— AUTICIPATIOK. �Uomplairiant's riding device, consisting of two profile frames representing horses, mounted on rockers, connected together with a seat, so as to allow the feet of ihe rider to extend downwardly between the frames, with a hlnged toy-box in front of the seat, serving to hold the child in place and as a receptacle for its playthings, held, anticipated by the Brown devices — one consisting of side frames representing a horse, terminating in rockers below and connected together with a seat and foot-board, allowiug the feet of the rider to extend downwardly between the frames, joined in front and rear by two vertical boards, one having extejding from the front a protile liorse-head, and from the rear a profile of a fiying horse-tail ; the other consisting of two solid frames representing an eagle or swan, continuons to and terminating in rockers below, with a seat Connecting the frames together and a toy-box in front to keep the child from fallitg ont. �3 Same— Same— MoDiFiBD Form. �Whether the frames are the profiles or outlinea of horses or are solid, or whether they are in the form of horses, eagles, swans, or of any other bird or animal, is a matter purely of taste or design, and, so far as any mechanical efEect or resuit is concerned, is of no importance. �4. Defence or Priob Use- Doubtful Evidence— Success of Lateb Devicb �NOT CONCLDSIVB. �In a defence of prior use it is often a controlling circumstance, where there is doubt in the proof, that, considering the success of the later device, if it had been made previously it would have attracted the attention of the trade and immediately have gone into use ; but it often happens that from varions fortu- itous circumstances a complete invention, in a branch of business where much depends on energy and facilities and capital, fails to attract that attention which, under different and better auspices, it recoives when independently pro- duced at a later day. ��� �