Page:Federal Reporter, 1st Series, Volume 9.djvu/219

 204 FEDERAL REPORTER. �toe, iaside of the natural one, by curving the slioe almosfc at a right angle from the natural toe or point of the hoof to a point nearly as far inward — that is, towards the other foot — a8 the widest part of the hoof, and extending back from this point to the heel, so that the inner fore quarter of the shoe was nearly a right angle, rather than a curve corresponding to the shape of the foot. The necessary effect of this shape is to make the angle of the shoe, as I have already said, to project beyond the wall of the hoof, and this projection forms the tumbling point, as Mr. Powers calls it, or point which last leaves the ground in the act of stepping. �In the light of the testimony as to the state of this art at the time -Blatherwick made his invention, I have no doubt this projection beyond the wall of the hoof must be .deemed the distinctive feature of his patent; and that he evidently intended this should be so is shown by his drawing, figure 1, where the location of the nail- head channei is such as clearly demonstrates that the corner or angle would project beyond the hoof. With this construction of the soniplainant's patent it is quite evident that defendants do not infringe, for their shoe (complainant's exhibit 1) has no projection beyond thu wall of the hoof. It seems to me to be, in all substantial respects, like the shoes made and used by Palmer, Trainor, and others long prier to complainant's invention. It places the toe calk inside the line of the point of the hoof, and 'thereby transfers the bearing from the toe, but it does not project or bear beyond the Une of the hoof. �It is urged that defendants called the form of shoe which they used the "Blatherwick Shoe," and it also appears that defendants at one time held a license from complainant ; but this does not amount to an estoppel on defendants to deny infringement, and only proves that for a time at least defendants eonceded to complainant the broad claim now insisted on in this case : that the patent covers all shoes where the tumbling point is changed to a point inside the line of the natural toe. Not being now acting under a license, defendants are not bound by any implied admission from the fact of having once taken a license. �I therefore conclude that defendants do not, by the use of the shoe shown in the proof to have been made by them, infringe complain- ant's patent, and the bill will be dismissed at complainant's cost. ��� �