Page:Federal Reporter, 1st Series, Volume 8.djvu/841

 CALIFOENIA. ARTIFICIAIi STONB PAVING CO. V. PERINE. 627 �these pavements, laid byboth Perine and Molitor, are infrmgementa upon the Schiliinger patent. �There may be some advantage in the beveled joints elaimed to be used by Molitor; but, if so, his pavement still embraces the Schil-:, linger invention, if my view is correct, and he is, therefore, an in- fringer. �In the Molitor pavement, a portion of which was taken up and some of the blocks introduced as exhibits, the thickness of the upper course of, fine material is not more than half an inch, and that con- tains substantially nearly all the strength of the block, for the lower course of material in these specimens is of such an inferior charac- ter.that it can be cnimbled to pieces by rubbing with the fingers. Yet even this is weakened by the cutting of the joints with a trowel, as before described. If, then, the lower course is of stich a crtim- bling character, 'either on account of not containing a sufiSciont quan- tity of cernent, or because of not being properly tamped, and there is no cutting of the joints in that upper course with the trowel, the mere marking of that top layer to the extent which the marker goes in would probably control the oracking. If the tongue of the marker will eut the upper layer to a depth of one-eighth or even one-six- teenth of an inch, then the entire thickness of that upper layer being but half an inch, it is probable that that incision would be sufficient to control the cracking of that upper layer ; and, as that layer is the most substantial part of the block, that marking might, and probably would, be sufficient to control the cracking of the entire block. �In my view, therefore, the respondents in these two cases, Perine and Molitor, have both so constructed their pavements as to gain the advantages secured to the complainant by the Schiliinger patent, and by substantially the same means; and they are, therefore, in- fringers of that patent. �In both these cases the preliminary injunctions heretofore issued will be continued in force, and a decree entered for complainant in accordance with the views expressed. ��� �