Page:Federal Reporter, 1st Series, Volume 8.djvu/836

 829 KEDEEAI. BBPOBTEB. �Bawyeb, C. J., (orally.) In this action isinvokecl the construction of the patent issued to John J. Schillinger for an improvement in concrete pavements. This patent has been before me on several occasions, and I have had considerable difficulty in giving it a satis- factory construction. Previous to coming before me it was, at various times, before Judge Blatchford and^ Judge Shipman, each of whom had occasion to construe the patent, and both gave^it a construc- tion -wider in its scope than I, on first examination, thought it would bear. On further consideration of the patent j and of their views npon the, point, I am not prepared to say, with entire confidence, that their construction is not correct. Judge Blatchford is undoubt- edly one of the ablest jurists on the national bench, and the same may be said of Judge Shipman. The decisions of Judges Blatchford and Shipman are looked upon by the supreme court with great respect ; and it is probable that those two judges have tried more patent cases than any other tw<? judges in the United States now living. I have, therefore, felt very great diffidence in dissenting from them in the construction of a patent. �On former trials of cases involving the rights of the complainant under this patent, I gave it a more limited construction than that given to it by the distinguished judges mentioned. They do not hold it necessary that, during the process of formation of the pavement constructed under the Schillinger patent, there should be interposed between the blocks anything which should permanently remain. In the' previous cases before me I inistructed the jury that, for the pur- pose of determining the question gf infringement in those cases, there should be something, either tar paper op its equivalent, permanently interposed between the joints. Under the construction given to the patent by Judge Blatchford, and also by Judge Shipman, there can be no doubt but that this patent has been infringed by the respond- ents in both the case of the Califomia Artificial Stone Paving Co. v. Penne, and the case of the Califomia Artificial Stone Paving Co, v. Molitor; and I think, after full consideration, that, even under the more limited construction which I have heretofore adopted, the re- spondents in both these cases have infringed. �There is some conflict in the testimony as to.how these pavements were constructed by the respondents in both these cases-^as to whether or not there was any cutting at all at the joints during the process of formation ; and, particularly in the Molitor case, it is claimed that no cutting whatever was done by the respondent. I have gone over the testimony ou that subject carefully, and I am satisfied that in ��� �